If colleges were held responsible for the independent speech and actions of student protesters, that would indeed have a chilling effect on free speech. This lawsuit may even inspire future litigation against colleges that chills protected speech as plaintiffs seeking a similar payday attempt to target administrators for what students do on their own. But jurors in this case did not find Oberlin liable for the independent actions of students. And I think administrators displayed the most egregious behavior in this case, given that they ought to possess more wisdom than the most zealous undergraduates.
In a 1903 law review article, federal judge Van Vechten Veeder posited that an era’s approach to defamation could reveal a lot about how it values competing goods. “Since the law of defamation professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion,” he wrote, “the estimate formed of the relative importance of these objects… would be an admirable measure of each culture, liberality, and practical ability of each age.”
Our era, defined in large part by the rise of social media, is exposing us to many more instances of possibly defamatory speech, with more frequency, prompting closer examination of longstanding norms. The conditions are ripe for cultural change. And jury verdicts in the next stretch of years will both reflect and drive it.