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"Declare that, pursuant to Fed. R.Civ. P.65(d)(2), this order binds Defendant's agents and other persons who are in active concert or participation with Defendant or his agents, if they receive actual notice of the order, including Simon & Schuster, Inc. and other such persons in the commercial distribution chain of Defendant's book." (emphasis added.)

The above statement is from the government's civil  filed yesterday in the case of United States v. Bolton. The complaint comes against the backdrop of what is supposed to be the forthcoming release of "" (Simon & Schuster, June 23) by former national security advisor . In a CNN news story, it was that:

• "" (First Amendment Center, 2006) (Geoffrey Stone with comments by Stephen Vladeck, and intro by Ronald Collins)

28 scholars and Floyd Abrams weigh in on Oberlin defamation case

“The tort law in play here means the plaintiff has to prove the school was going beyond just overseeing a student protest, but actively participating with a motive to defame the business. That’s not easy to prove." —

"If you're acting as agents by passing out false information, then you have to answer for that. But it's hard to see how that merits $11 million dollars in [compensatory] damages." — 

The case is Gibson Brothers Inc. v. Oberlin College, which is currently before the Ohio Court of Appeals for the Ninth Appellate District.

The allegations are serious, the issues complex, the damages substantial, and the number of lawyers and scholars involved are dizzying — and all of this before a intermediate state appellate court. This is a case to watch, one that is unlikely to end anytime soon or with the court that will soon hear oral arguments in the matter.

Facts

The Gibson Brothers case involves allegations of libel, tortious interference, and intentional infliction of emotional distress, which arose out of a 2016 incident involving a well-known bakery located near the college. Believing that an African American student had stolen two bottles of wine, a store clerk chased the student and tackled him outside of his store. Matters then escalated into a fight when two of the student's friends attacked the employee. According to a Rolling Stone , hundreds of students thereafter:

outside of Gibson’s, distributing flyers alleging that Gibson’s was a 'RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.' A number of Oberlin staff and professors were also present, including Dean of FIREMeredith Raimondo, who, according to court documents, addressed the crowd on a bullhorn and handed one of the students’ flyers to a reporter. . . .

In November 2017, almost a year after the initial incident, Gibson’s filed a against Oberlin College, alleging that the institution had directly participated in the defamation of Gibson’s by, among other things, purchasing refreshments and pizza for the protesters, and providing facilities for the students to print the flyers accusing Gibson’s of racial discrimination. It also alleged that the college essentially attempted to strong-arm the bakery into dropping charges against the students as a “quid pro quo for resuming business with Gibson’s,” and that although Gibson’s had requested an apology from the college, Oberlin refused.

In their on appeal, the defendants argued that "[a]s far back as 1990, there were reports of protests of Gibson’s Bakery because of perceived racial bias." The Plaintiffs, however, offered to the contrary during the trial.

→ See also "," The Oberlin Review (Nov. 11, 2016).

Trial court resolution

When the matter went to trial, a jury awarded $33 million in punitive damages plus $11 million in compensatory damages. The trial judge, however, the total award to $25 million.   that "David Gibson should receive $14 million in compensatory and punitive damages, his father and family patriarch Allyn Gibson $6.5 million, and their Oberlin business, Gibson’s Bakery, $4.5 million." The judge also awarded enhanced attorney fees of $6,271,395 and litigation expenses totaling $294,136.79. The defendants, Oberlin College and Dean of FIRE, appealed.

The brief of the defendants/appellants

10 lawyers from four law firms are the defendants/appellants (, lead counsel) before the Ohio Court of Appeals. They the following main arguments:

1. On the standard of review: "Unlike most civil appeals, cases involving speech on matters of public concern require this Court to conduct an independent appellate review of the whole record to make sure the jury’s verdict does not infringe on constitutionally protected speech."
2. "Plaintiffs cannot establish a libel claim as a matter of law."
3. "Plaintiffs cannot 'back door' an IIED claim to circumvent the constitutional protections that bar a libel claim."
4. "Raimondo cannot be liable for tortious interference."
5. "At a minimum, the punitive damages awards must be vacated."
6. "In the alternative, errors and irregularities at trial made Plaintiffs’ verdict virtually inevitable and entitle Defendants to a new trial."
7. "At the very least, the judgment should be reduced."

Plaintiffs/Cross-Appellants' brief

In their cross-appeal, the plaintiffs are represented by eight lawyers from three law firms. They urge the court to reinstate the $33 million in punitive damages award.

In their  (, lead counsel) the plaintiffs/cross-appellants maintain that state cap on such awards is inapplicable where, as they further allege, the college acted maliciously and that a reduction in awards would not adequately punish the college or deter any such future cross-appeal asking the court to restore the original $33 million punitive judgment. They argue that the state cap should not be applied in this case and maintain that the punitive damages were warranted given the college’s reckless conduct and the size of its financial assets. This reduction, they argue, does not adequately punish the college or sufficiently to deter future wrongdoing. They also claim that the reduction of punitive damages:

1. violates the due course of law/due process clause of the Ohio and United States Constitutions,  
2. infringes on the constitutional right to a trial by jury, and that 
3. the $33,223,500 is within a constitutionally acceptable range and is not excessive.

The scholars' amicus brief 

Now enter and 28 First Amendment scholars who have filed an amicus brief in support of the defendants/appellants (brief ) ( & counsel). The scholars listed on this brief are:

Other amicus briefs in support of defendants/appellants

•  (, lead counsel)
• (, lead counsel)
• , and 19 additional media organizations (, lead counsel)

→ In the interest of full disclosure: One of the lawyers for the defendants/appellants, , serves with me as a co-director of the First Amendment Salons.

Op-ed by plaintiff 

• David Gibson, "," USA Today (June 21, 2019)

YouTube statement by plaintiff 

• "," YouTube (June 13, 2019)

Jonathan Turley on 'informed commentary' criticizing Black Lives Matter protests

This from Professor on his :

Yesterday, we discussed the effort to remove one of the country’s most distinguished economists from his position because criticized Black Lives Matter and the Defund The Police movement.  Now, is reportedly facing demands that he be fired because he wrote a blog about the Black Lives Matter movement.  Jacobson is the founder of the conservative website   My concerns were magnified by a letter from his colleagues that would label virtually any criticism of BLM or the protests as presumptively racist. The letter is a chilling reminder of the rapid loss of free speech values on campuses around the United States.

Twenty-one colleagues at Cornell signed a June 9, denouncing unnamed “commentators… attached to Ivy League Institutions” as calls were made to the Dean to have Jacobson fired.  The professors lashed out against academic commentators who criticize the looting as effectively racists . . . .

Not a word about academic freedom or free of speech;  not a suggestion that critics of these protests could have anything other than racist motivations.  It is the antipathy of the intellectual foundations for higher education.  Rather than address the merits of arguments, you attack those with opposing views personally and viciously. That has become a standard approach to critics on our campuses.  Unless you agree with the actions of the movement, you are per se racist.  : if you are not part of the resistance, you are reactionary . . . or, in this period, racist. . . .

What is most striking for me is the inclusion of Professors and , who teach in the Cornell First Amendment Clinic. They are in fact the Director and Associate Director of the First Amendment Clinic, which is presumably committed to the value of free speech even at private institutions. So these professors teach free speech and just signed a letter that people who question the BLM movement or denounce the looting are per se or at least presumptive racists.  It is reflection of how free speech is being redefined to exclude protections with those who hold opposing views.

Black Lives Matter street mural challenged in court 

• Alex Swoyer, "," Washington Times (June 11)

First Amendment Watch releases a citizen’s guide to recording police

This from the folks over at :

In response to the nationwide demonstrations against police brutality, NYU’s First Amendment Watch is publishing a guide informing citizens of their right to record the police in public places.

Many millions of people now have the capability to document news in a way that only journalists and film crews could do in the past, and the videos they capture have played an important role in shedding light on police misconduct.

The video of George Floyd’s brutal death at the hands of the Minneapolis police, as well as the hundreds of videos taken by bystanders documenting use of force by law enforcement against peaceful protestors, underscores the role that journalists and the public play in illuminating misconduct.

The First Amendment right to record public officials such as the police performing their official duties in public is central to our democracy. Without the ability to document and disseminate such information, citizens would lack an indispensable tool for keeping the public informed, and for holding their leaders accountable.

Naomi Wolf to return with 'newly updated' book on sex & censorship

Last spring Naomi Wolf, a best-selling author, did an with BBC's Matthew Sweet on her then-new book "Outrages: Sex, Censorship and the Criminalization of Love." In the course of that awkward interview, Sweet pointed out a historical error of a note Ms. Wolf had made. After a pause, she replied, “Well, that’s a really important thing to investigate.”

At first, her publisher, Houghton Mifflin Harcourt, postponed the U.S. release of her book but then its release. At the time a spokesperson for the publisher that Ms. Wolf and the publisher parted ways. According to , "Ms. Wolf confirmed the parting but said in an email that 'Outrages' would come out in the United States 'in due course.'"

Well, "due course" will be upon us come this October 9 when Chelsea Green Publishing will the book in paperback, replete with a handsome and improved cover. The book's description:

From New York Times bestselling author Naomi Wolf, a long overdue literary biography of a trailblazer for the modern gay rights movement, and a passionate defense of freedom from censorship

Newly updated, first North American edition—a paperback original[.]

In 1857, Britain codified a new civil divorce law and passed a severe new obscenity law. An 1861 Act of Parliament streamlined the harsh criminalization of sodomy. These and other laws enshrined modern notions of state censorship and validated state intrusion into people’s private lives.

In 1861, John Addington Symonds, a twenty-one-year-old student at Oxford who already knew he loved and was attracted to men, hastily wrote out a seeming renunciation of the long love poem he’d written to another young man.

Outrages chronicles the struggle and eventual triumph of Symonds―who would became a poet, biographer, and critic―at a time in British history when even private letters that could be interpreted as homoerotic could be used as evidence in trials leading to harsh sentences under British law.

Drawing on the work of a range of scholars of censorship and of LGBTQ+ legal history, Wolf depicts how state censorship, and state prosecution of same-sex sexuality, played out―decades before the infamous trial of Oscar Wilde―shadowing the lives of people who risked in new ways scrutiny by the criminal justice system. She shows how legal persecutions of writers, and of men who loved men affected Symonds and his contemporaries, including Christina and Dante Gabriel Rossetti, Algernon Charles Swinburne, Walter Pater, and the painter Simeon Solomon. All the while, Walt Whitman’s Leaves of Grass was illicitly crossing the Atlantic and finding its way into the hands of readers who reveled in the American poet’s celebration of freedom, democracy, and unfettered love.

Inspired by Whitman, and despite terrible dangers he faced in doing so, Symonds kept trying, stubbornly, to find a way to express his message―that love and sex between men were not “morbid” and deviant, but natural and even ennobling.

He persisted in various genres his entire life. He wrote a strikingly honest secret memoir―which he embargoed for a generation after his death―enclosing keys to a code that the author had used to embed hidden messages in his published work. He wrote the essay A Problem in Modern Ethics that was secretly shared in his lifetime and would become foundational to our modern understanding of human sexual orientation and of LGBTQ+ legal rights. This essay is now rightfully understood as one of the first gay rights manifestos in the English language.

Naomi Wolf’s Outrages is a critically important book, not just for its role in helping to bring to new audiences the story of an oft-forgotten pioneer of LGBTQ+ rights who could not legally fully tell his own story in his lifetime. It is also critically important for what the book has to say about the vital and often courageous roles of publishers, booksellers, and freedom of speech in an era of growing calls for censorship and ever-escalating state violations of privacy. With Outrages, Wolf brings us the inspiring story of one man’s refusal to be silenced, and his belief in a future in which everyone would have the freedom to love and to speak without fear.

More news & opinions 

• Sarah McLaughlin, "Free speech coalition warns Zoom: China’s censorship requests could impact online teaching," FIRE(June 15)
• "Nicholls State University president has no idea how the First Amendment works," FIRE(June 15)
• "," First Amendment Watch (June 15)
• Eugene Volokh, "," The Volokh Conspiracy (June 15)
• "," First Amendment Watch (June 9)
• Greg Lukianoff, "FIRE president responds to ACLU lawsuit against Title IX reforms," FIRE(June 9)

2019–2020 SCOTUS term: free expression & related cases

Opinions or judgments handed down

• (per curiam with Ginsburg, J., statement concurring in remand)
•  (decided on non-First Amendment grounds)

Cert. granted

•  ( Feb. 25) [soliciting unlawful action/overbreadth]
•   (TBD) [standing / judicial elections]
• (May 5) [federal funding/compelled speech]
• (May 6) [automated-call restriction]
•  (consolidated w/ ) (May 13) [elections]
•  (TBD) [religious expression: free exercise & free speech claims]

Pending petitions

Petitions denied

•  (Alito, J., dissenting from denial of cert.)
• (Alito, J., dissenting from denial of cert.)

First Amendment-related 

• (re Section 202(h) of the Telecommunications Act of 1996)
• (re FCC cross-ownership restrictions)
•  (nominal damages and mootness in campus speech context)

First Amendment related: cert. denied

• (interpretation of Section 230(c)(1))
• (void for vagueness, “moral turpitude”)
•  (interpretation of Section 230(c)(1))

Last scheduled FAN

• FAN 258: "Joseph Russomanno — ‘The marketplace of ideas mistake: the Cotton-NYT’s op-ed controversy'”