A curious argument posed in reaction to Oberlin College’s smear of the Gibson family in furtherance of its blind social justice agenda is whether calling someone a “racist” is a matter of opinion or fact. If the former, then it cannot be defamatory. If the latter, then it can.
The hybrid argument is that the generic characterization of “racist” is an opinion, while the characterization of “racist” based upon a discrete factual scenario is not. Here, because the actions of Gibson’s Bakery in calling the police on a black Oberlin student for shoplifting directly led to students, with the facilitation and encouragement of faculty and administration, acting in concert, provided the express basis for the accusation of racism, the judge denied summary judgment and the jury found the “racist” accusation defamatory.
As with many other words, such as “rape,” “racist” has become untethered from its definition. It no longer is understood to be limited to racial animus, but has expanded to include lack of sufficient racial empathy. Even more, racism to a certain cohort can be manifested in failure to make it one’s primary concern, suffering consequences (such as theft) as a sacrifice to the marginalized.
When viewed from that perspective, the cry that Gibson’s Bakery was racist by calling the police on a black student, who may have factually tried to steal from the store but should, to a sufficiently woke observer, have let it go rather than dialed 911 on a black kid, has certain validity. The question is how far one needs to go to avoid being characterized as racist. The answer is as far as the most passionate warrior decides, and few places are as filled with passionate warriors as Oberlin College.
That the students, and their administrative enablers, at Oberlin are passionate may be worthy of challenge, but does that make their assessment wrong? Or more to the point, isn’t the characterization of racist inherently a matter of opinion, and inherently outside the realm of defamation?
Calling people racist has become ubiquitous. It can be for good reason, bad reason or no reason. There seems to be no bottom to the rationalizations of the woke, and, indeed, critical race theory would appear to empower the most insipid among us to validly find racism under every rock, or the absence of a rock which impacts minorities and women most. There are just no limits to why, removing it from the purview of a fact-based epithet.
Evan Gertsmann argued at Forbes that calling the bakery racist cannot be an opinion because “It is difficult to think of a more harmful accusation against a business today than accusations of racism and the court rightly rejected that argument.”
But that makes no sense. There is no connection between the level of harm in a statement and whether it is an opinion. Some opinions can cause serious harm, and some facts cause no harm. The test of whether something is an opinion depends on whether it’s an opinion, not the level of harm.
There is no question that under certain circumstances, accusations such as “racist” (or rapist, as the #MeToo adherents can attest) can ruin a business. But does that make the accusation of “racism” any more factual than it would otherwise be? That crazy kids, a complicit college, lost their heads over the narrative doesn’t change the nature of the accusation, even if the consequences are dire.
Is the factual nature of an accusation of “racism” salvaged by connecting it to an objective factual basis?
Gertsmann claimed that “calling Gibson’s racist and accusing it of engaging in racial profiling right after the incident with the three students is clearly accusing it of specific wrong-doing.” Once again, specificity and facts are two different categories. If the protesters claimed that arresting a black student was racist, that’s still their opinion about the facts in the case even though it’s an opinion about a specific event. If, hypothetically, the protesters had falsely claimed that the owner yelled racial slurs and said black people were banned from the store (which obviously never happened), that would be a fact assertion potentially subject to a defamation claim.
He’s got a point. There are facts, objectively determined conduct that occurred. A black Oberlin student tried to take an item without paying for it. Gibson called the police about it, and the police arrested the student. But whether these facts constitute racism is a separate question. Granted, most rational people would say no, but they lack the sensibilities of Oberlin students, faculty and administration. Their view might be considered ridiculous, but even the
batshit crazy adherents of critical race theory are entitled to their opinion, baseless as it may be.
The impact of wildly baseless, factually unfounded, accusations isn’t in doubt; that it caused enormous harm is very much a fact. But then, unproven, if not baseless, accusations by the unduly passion are doing grave harm to many these days, all in the name of social justice. Its warriors believe the damage to the innocent merely a price society must pay to compensate for its history of oppression. Others disagree. But then, that’s their opinion.
As words, accusations, shed definitions, their promiscuous use blurs the line between fact and opinion. This could be cured when President Warren issues an Executive Order precluding the arrest of any black person upon accusation of a white man, creating a clear demarcation of what is racist in the manner in which law is enforced going forward. But for now, there is law that limits racial discrimination to conduct that reflects animus toward a person based upon their race.
An accusation of racism against a person may well be an “opinion” from the perspective of an Oberlin dean, but the law still provides parameters that constrain the wildest definition in the most passionate imagination of a student at Oberlin. As Gibson’s Bakery called the police on a thief, who happened to be African-American and a student at Oberlin College, its actions are not, as a matter of law, racist. No matter what your opinion on the merit of the definition imposed by law, that’s the fact. At least for now.