I am not going to accuse the three white lady judges of being racists. . .

Because even if under prior case law in Ohio, that is not prima facie defamation as a solid matter of law, the three white lady judges who sat on the panel who refused to over turn the trial verdict in the Oberlin case?  They decided it is.  Sorta.

I did skim the opinion last night, to double check the handling of the whole does an accusation of racism = defamation question?   And the opinion (just checked it again,) really avoided that critical and specific part.  They just say the finding of the lower court was correct, with out dealing with the critical matter.  They note in the opinion:  

"To determine whether an alleged defamatory statement is fact or opinion, we examine four factors: the specific language used, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared."

But they fail to show how the accusations are in fact defamatory.  They quote "The specific language used," but are virtually silent on the matter of why the accusations of 'racist' could be considered, as a matter of law, as defamatory.  Re fucking ipsa loquitur does not fucking apply here!

This matters because last night I looked up the critical question and yes.  There is caselaw in Ohio that says being called a racist is not defamation. As a rule.

Ahhhh. But here is the tricksy bit.  I missed this in the trial court opinion,  but the appeals court judges rest their finding of a valid determination of defamation per se on this shit:

"The trial court found that allegations of an assault, if untrue, were defamatory per se and Oberlin has not raised a timely or proper challenge to that ruling by the trial court.3"

That clearly was error at the trial court  and by the appeals court.  

From some Ohio law firm's website. 

In Ohio, a statement may be considered ‘per se’ if it falls that constitute defamation within one of four categories:

• A statement that accuses the victim of an indictable offense involving moral turpitude or infamous punishment,
• A statement implying the victim has an offensive or contagious disease meant to isolate or ostracize the victim,
• Words that injure a person in their trade or occupation, or
• Statements that subject the victim to public hatred, ridicule, or contempt.

Being accused of (unspecified) assault does not seem to meet the requirements for defamatory per se.   That last category, the only one that gets them within striking distance of legitimacy, is really vague.  And being accused of assault does not rise to most people's idea of subject to public hatred, and shit, because just like accusations of being a racist are so common to be meaningless?  And some people brag about the accusation?  People brag about kicking ass and shit, all the time, and other people, for what ever allegiance or other reasons, will cheer them on, or after the fact.

In all honesty, the caselaw in Ohio is so fucked up and vague this case should be taken up by the Ohio Supreme Court just to create some bright lines.  The caselaw says the matter of whether a statement is mere defamation or a per se case is a "matter of law"  but they allow for  too much reading of the tea leaves to be instructive to the people what is or isn't defamation?  I think both the trial court and the appellate court totally fucked upon this part.  Determining:  "the general context of the statement, and the broader context in which the statement appeared."

Some snot nosed college bratz shit talked the local merchants.  The college aided the snot nosed college bratz shit talking the local merchants.  Seems more like the opinion of snot nosed college bratz shit talking the local merchants, than anything that a reasonable person would take seriously, with the exception of snot nosed college bratz and their minders/educators. 

I actually think that even under the vague caselaw of Ohio,  the case should have been dismissed and never gone before a jury.

We will see.

Oh  and I checked. Two of the judges were GOP,  and one not. And all were white ladies. 

Even if  I am right in thinking  OSC needs to set a clear standard  (I don't fucking trust fucking judges much, by default.)  There is a GOP to Dem split of four to three.  And politics will have a lot to do with if it get's docketed, and how shit ends up.  

 There really should be a clear line saying being accused of being a racist is not cause for a defamation case. and that is the politics of it! But it should not be political.  As was said in a Federal court case out of Illinois, back in 1983:

"In daily life "racist" is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication."  Stevens v. Tillman (7th Cir. 1983.)

I argue (got to be carful, even if I have had a general disclaimer here for years and years,)  that what this case was about to start, and still is about is white supremacy and anti work ism and anti cancel culture.  Pure politics of the worst kind.  JMO!

Since I mentioned Gibson's v. Oberlin

 I am truly of the mind that merely being called a racist is not suitable grounds for a defamation action.  I might have said that before, when the case was hot.  These days it is considered a long, overdue ruling, by the appeals court.  Even if one of the judges on the original panel lost an election and the newbie needed time to  catch up on not only that case, but all she was assigned to, after winning the seat.  

Way I was arguing it to myself, and none of this is at all original.  Let's be honest.  It there ever really was any sting to the charge, that is no longer the case.  Not for grown ups, at least.  It's basically one of the random, go-to, easily used insults of the age.  It's on the level of being called  an asshole, actually.  It's name calling.  Pure and simple.  At its most common and base usage.  If the charge is in context with real specific wrong doing like accusing some elected or appointed official, judge, hospital administrator, teacher, whatever of engaging in a racially discriminatory pattern or racist  misuse of office?  That's different.  Context matters.  But, and to use an even better point of comparison. Merely  calling some rando a racist is like calling them a motherfucker.  There could be belief in the literal insult, but the charge more often than not is meant mostly if not exclusively as an insult. 

Now the problem in the Gibson's v. Oberlin matter is that Ohio is behind the times in knowing what time it is.  To employ a colloquial phrase.  Across the borderline, in Illinois, their courts recognize the plain and obvious truth that:

"Accusations of “racism” no longer are “obviously and naturally harmful.” The word has been watered down by overuse, becoming common coin in political discourse. Tillman called Stevens a racist; Stevens issued a press release calling Tillman a “racist” and her supporters “bigots.” … When Stevens called Tillman a “racist,” Stevens was accusing Tillman of playing racial politics … rather than of believing in segregation or racial superiority. That may be an unfortunate brand of politics, but it also drains the term of its former, decidedly opprobrious, meaning. … The term has acquired intermediate meanings too. The speaker may use “she is a racist” to mean “she is condescending to me, which must be because of my race because there is no other reason to condescend.” … Meanings of this sort fit comfortably within the immunity for name-calling. … In daily life “racist” is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication."

And:

Similarly, in Grutzmacher v. Chicago Sun-Times Inc.,[3] Judge Kathy Flanagan, citing Stevens, found that statements referring to the plaintiff as a “neo-Nazi” were nonactionable opinions.

Stevens and Gruzmacher are based upon a fundamental concept in defamation law: To prove actionable, a statement must consist of objectively verifiable fact. Amorphous opinions, even when obviously negative, which lack clearly ascertainable meaning are not actionable.

Other Illinois reported cases have found that the following terms and phrases, in the absence of objectively verifiable facts, were nonactionable opinions: “fired because of incompetence,” “cocky con-artist,” “useless piece of shit,” “very poor lawyer,” “unethical,” “lazy,” “burnt out,” and “unstable.”

(Source)

I found that quote looking for the actual metrics about how many states do recognize this reality in their defamation law. I really think this needs to be the case, nationwide.  

Notable of the errors in the Gibson's v. Oberlin case is that the court not only did not require the plaintiff to carry the burden of proof and persuasion with evidence they were not in fact racists.  The judge actually kept evidence of racist animus on the part of the person who's action triggered the case, away from the jury.  Fucked up  and bullshit!   

Someone called you a racist?  Grow the fuck up! No payday for you! 

Re that violence loving, gun toting, helicopter hunting approving sno billy grifter's (my opinion) law suit,

 And calls for the "actual malice" standard to be revised in defamation actions?   Talk about people setting themselves up for being hoisted on their own petards?  And I mean the right wing lunatics who want that?

I do not want that, let me say up front.  But can you imagine any well known conservative media provider lasting in business for more than five years if the standard gets lowered for proving defamation of a public official or figure?   FNC  will get buried.  The even more lunatic copycats will be wiped off the map.  No insurance company will cover that exposure.  And if the law gets changed, following a Supreme Court rewrite and ruling?  Even given the one year statute of limitations  in many states, I have to predict a crippling onset of cases.   One of the reasons FNC gets away with so much over the top, flat out hateful shit is the  "actual malice" standard.  Granted, that Dominion lawsuit against them is a fairly dangerous threat to FNC.  And then there is Col. Vindman's.  So FNC has a good deal of exposure already.

I mean sure. I want them crushed.  But I think we are better off with the "actual malice" standard still in play.  Historically  judges disfavor defamation cases.  I should know.  I got my ass kicked pursuing a very good one.  Anyway

Last thoughts.  Palin is so associated with violent rhetoric that her case should have been dismissed, as it was, had been.  And her targeting map was so inflammatory that it is a reasonable interpretation that she was solicitating violence against her political party's opponents.  Far as I know, the reason for the overturning of the dismissal on appeal was even if technically within law.  It could have called harmless error, as on it's face  the pleading did not meet the necessary level for a prima facie case where "actual malice" cold have been proven, particularly how quickly the NYT  corrected the story.  And her claim of damages is fatuous.  She is the harpy who is famous for calling the "mainstream"  media  the "lamestream" media.  People who read and identify with the views of as she calls them the "lamestream" media tend to despise her already.

No real harm.  No provable damages.

Nota Bene:  I am still anticipating the result of the appeal of the Oberlin College case.  It is weird but not surprising that in some US states being called a racist is not considered actionable as defamation, but not all, as it should be.  But as we are now living in the anti anti racist times, and as I really don't know shit about the appellate courts in Ohio?  I can't really say there is hope for them to adopt that as the standard, going forward.  It is so hard to predict shit.  But at minimum, the damages were bullshit.  And in my understating of shit. The judge fucked up multiple times pre and during the trial. Most notably, fucked up in not dismissing  this shit.  That case was mostly some town vs gown treasure hunt. It might not be a rule of jurisprudence, but call shit as it looks!

Link and commentary: The Dangerous Defamation Judgment Against Oberlin College

The Dangerous Defamation Judgment Against Oberlin College: BY JOHN K. WILSON





An interesting essay on why the ridiculous verdict in Gibson v. Oberlin College is, for lack of a better description, "Fucked Up and Bullshit."  I agree with the writer that what ever bad conduct was directed at the plaintiffs, it definitely was not standard defamation.  I was actually thinking yesterday, is it really defamation to be called a racist?  I mean really?  Save when it is a accusation tied to misconduct, unlawful, prohibited discrimination (and properly filed pleadings are privileged if I recall correctly?)  I know a lot of people fear being called racist as much as reasonable people fear getting a chronic disease.  Others just don't give a fuck, or just throw the accusation right back at who ever called them that.  But it is usually just somebody's opinion, I think.



But I really think the judge committed reversible error in not kicking the whole case out on motion for summary judgment.  And like I said in my last post, the theory of harm and damages was just bananas.



Now I finally got the answer to my question, why was there no defense of truth, or evidence at trial about whether or not Gibson's has a reputation at least among not white folk, of being racist?  Turns out I learned, over on the Althouse blog earlier today, that the judge specifically prevented the defense from introducing any evidence of that.  Basically the judge took away what is one of the standard defenses to defamation; truth.  So we have reversible error at the trial as well.  I don't think this judge's reputation will survive unscathed here.  And the idiotic reason he excluded the defense as a whole and testimony regarding that matter was because the kids in the original incident that caused this shit show said they were not victims of racism . . . when they plead out on much lesser charges, thereby avoiding felony convictions.   Never mind that aspect, but since when is a statement made in relation to a plea bargain, that has no bearing on the criminal charge, a finding of fact binding other cases?  Ohio law might be weird, but not that weird, I am guessing.



For either of these reasons, the appellate court can vacate this ruling, even if they really are doing it as a public policy, institutional level, can't let this shit stand, sort of reason, actually.



And the part that the appellate court can not dare talk about in a court's opinion, is the sick, twisted politics at work here.  Just as much as on the conservative blog where I first read about this case, the peanut gallery over at Althouse's blog were hailing this as a critical win in their idiotic Culture War.  Because them SJWs and liberal eggheads on those out of touch college campuses are way out of touch with "normal" folk.  So the rabid conservatives say.  Shit.  Even one yokel posted some psychotic quote about how all of them want to kill all of us.  Pretty sick, seriously disturbing shit.



Parting shot (pun not intended.)  If a well traveled blog like Althouse was held to the same standard that the judge and jury held Oberlin College to, the owner would be open to all sorts of liability based on the putrid shit some of the visitors post.  Good thing that is not the case and the law.  Yet.



(Oh.  A reminder.  Buried in the earliest part of this blog, is my disclaimer.  Every thing I post here is just my damn opinion.  Got to remember to restate that every so often.  Bitches be suing for defamation for all sorts of crazy-assed reasons!)

Sorry You Anti SJW Assholes. The Verdict in Gibson v. Oberlin College is Fragile, if not D.O.A.

Gibson v. Oberlin Verdict can Not Be Allowed to Stand.


I have been fascinated with this story, since I first learned about it.  In sum, a local bakery/store near Oberlin College was boycotted and picketed by students, after some students got caught shoplifting.  Part of the complaint about the business was that they were racists, and had a history of racial profiling.  That kinda shit.  Now, for awhile, the school stopped doing business with the bakery.  But then they started doing business with them again.  Then the bakery sued the school.  And that is one of the most important parts of the story that often gets left out.  The real reason Gibson's no longer has any of the college's business, is because they sued the college, and the college cut off the spigot.

The essay I have linked here is a good fact based argument as to why the verdict should not be allowed to stand.  And here, I will say why I believe the first appellate court and the following one or ones  (I don't know shit about Ohio's judiciary) should throw out the verdict.  As the writer of that essay  says, this verdict leaves all colleges and universities open to suit for what is really student conduct.  (In Ohio at least.  The case is only precedent in Ohio.  And there they have a weird but not perhaps unique allowance to sue based on aiding and abetting  defamation.) 

And who would be most at risk in Ohio if this ruling is allowed to stand?  Why that would be the people of the Great State of Ohio!  The University System of Ohio has over 500,000 students these days.  So will the appellate courts  leave the State open to suits like that? I don't think so.  An unofficial part of the job of being a judge in the state system is,"Thou shalt not cause the state to lose money if it can be avoided."  And let us describe the nightmare scenario.  Not only can butt sore townies sue, or invited speakers to campus, but in the age of the Internet, anyone, anywhere could file a suit against The University System of Ohio, if they say they were defamed and some student used school property to allegedly do so (like the servers that connect to the Internet) in their protest, or boycott, whatnot.  And that is a lot of exposure for the State.

But wait, there's more.  There is the other downside to letting the verdict stand. The University System of Ohio would have to crack down on students' 1st Amendment protected speech.  So that means exposure to more lawsuits that way too!

I am sure the trial judge and the jury felt sorry for the Gibsons.  But I fully expect the higher courts to say, sorry kids, you don't get a penny.  It's not that appellate courts do not care about individuals.  But it is not their job to give a fuck about that shit;  their job is to view things from the institutional level.  And a precedent that leaves The University System of Ohio, and all other Ohio colleges with their cheeks spread wide open is something that must be overruled, from the institutional view.

Now there is some other tangent I will only mention.  And that is the Anti SJW crowd loves the verdict here, because  they love the idea of sticking to those people.  And the college administrators  might have been assholish here.  But that by itself is not a tort.

And now I will make my last point.  At minimum I expect a higher court to void the damages award.  They should, truth be told, rule that the trial judge erred in not granting summary judgment on all counts, before letting this shitty case go to a jury.  But at minimum, the argument for damages was ass backwards.

Oberlin College aided and abetted some of it's students defamation of the Gibsons.  And then for a while, based on the defamation Oberlin College aided and abetted in, Gibsons lost money they should have earned from continuing to do business with Oberlin College.  Never mind the fact that Oberlin College later resumed doing business with the Gibsons. Oberlin College finally stopped doing business with the Gibsons after we, the Gibsons  sued them.  So give us millions of dollars.

Bananas!