Conservative Law Professor Challenges Campus Left on Free Speech (and Wins Them Over)

The family who runs a 130-year-old bakery in Ohio was accused of racism after having an Oberlin College student arrested for shoplifting. Hostilities and boycotts against Gibson’s Bakery escalated into a court case debating free speech. Legal Insurrection, a website on politics and law, has followed this case since its beginnings in 2016. 

Bill Jacobson, founder and publisher of Legal Insurrection as well as a clinical professor of law and director of the Securities Law Clinic at Cornell Law School, shares his insights on Gibson’s Bakery v. Oberlin College. Jacobson also talks about how he turned a hostile greeting at Vassar College into an incredible teaching experience, and discusses his views on social media censorship. Read the lightly edited transcript below or listen to the podcast.

Rob Bluey: Bill, it’s great to have you in studio. You are here in Washington for a lecture with the James Wilson Institute on the topic that really intersects with a number of things we’ve talked about on this podcast before, campus identity politics, maybe some over-exertive college administrators, and a family bakery that is caught in the middle of all of it.

We’re talking about the case of Gibson’s Bakery v. Oberlin College. It’s a story we’ve covered at dailysignal.com. You were just on Tucker Carlson’s show. I know you’ve been on regularly as a guest providing him updates. Take us back and tell us how this story began and why you’ve covered it so intently on Legal Insurrection.

Bill Jacobson: I’ve covered problems at Oberlin since I founded the website in 2008. It’s just low-hanging fruit for conservative bloggers. There was the various food cultural appropriations controversies there, so it’s something I always paid attention to, Oberlin.

And then for whatever reason, I paid attention to these protests that were taking place outside a little bakery in the town of Oberlin called Gibson’s Bakery. I started to look into it and what happened. It was the day after the 2016 election, and I think that’s really important because the campus was already in meltdown.

Oberlin’s a very liberal, very left-wing place, and according to the reports from the student newspaper and the local paper, everybody was freaking out that [Donald] Trump was elected.

Late that afternoon, the day after the election, Gibson’s Bakery, which has been around for five generations, 130 years—currently, at the time, three of those generations working in the bakery.

The clerk, who’s one of the Gibsons, the younger Gibson—I think in his early 30s—stops a black Oberlin College student for shoplifting and he has wine tucked in his jacket. A scuffle ensues. Two other black Oberlin College students who were with him join in the scuffle. The police are called and the three students get arrested.

The campus immediately erupts that this is racial profiling, that the only reason they were stopped for shoplifting was because they were minorit[ies].

Fast forward seven months later, they all plead guilty, so they were actually shoplifting, but nobody waited for the facts to come out.

The college community immediately coalesced around a narrative of racial profiling. There were very large protests, hundreds of people outside this little bakery, very aggressive protests.

One of the Oberlin town policemen testified in court that they considered calling in the county riot squad to try to keep things under control, that’s how aggressive it was. And who is in the middle, according to witnesses, with a bullhorn leading this protest? The dean of students of Oberlin College.

Now, if that’s all it was, there would never have been a court case or anything, but the protesters were handing out flyers accusing the bakery of having a long history of racial profiling and of physically assaulting a minority student.

Those flyers, according to witnesses, were being handed out by the dean of students in stacks given to others to spread around. Now, she denies that. She says that she only gave one copy to a reporter who asked for a copy. You have conflicting testimony, a jury gets to decide who’s telling the truth.

There were other witnesses who saw other senior administrators of the college there passing out the flyers. It was that flyer which became the centerpiece of the defamation case against the college.

There were other things and problems. The college suspended baked good purchases from the bakery, and you can imagine what that’s like. The college community boycotted the bakery. Apart from the administration of the college, just the student council passed a resolution calling for a boycott and repeating the defamatory accusations. To say it was stressful is an understatement.

So eventually, when they could not work out anything and there was testimony by the more senior Gibson that the college officials would consider restoring the baked goods orders if the bakery agreed that next time a student was stopped for shoplifting, they would call the college first, not the police.

Now, of course, the college denies this, but [we have] conflicting testimony. And he said, “No, we’re not going to do that. We’re not going to have a one-free-shot rule.” And they never were able to resolve it.

The Gibsons say they asked for a statement from the college that the college has no indication or evidence of racial profiling because by that point months later, the evidence was in. The police had done their investigation.

Bluey: Sure, yes.

Jacobson: And they wouldn’t do it. The college would not [do it.] [The Gibsons] didn’t even ask for an apology. They just asked because these defamatory statements had been spread throughout the community, they wanted a curative statement … and the college would not do it and they sued.

I followed the lawsuit. So I’m following this the whole time and nobody’s really paying attention to it. The original protest got a little bit of news coverage and people moved on.

And then it comes up toward trial and I’m thinking to myself, “I’ve read the papers and the college is so tone deaf, they have done nothing but attack this little bakery, which did nothing wrong and just stopped somebody from shoplifting.” I said, “We should cover it.”

So around that time, I launched a new entity called the Legal Insurrection Foundation, which is a nonprofit research group, and I said, “Our first project is going to be sending a reporter to sit in on the Gibson’s Bakery trial.” And we were the only national outlet that had a reporter in the courtroom every single day.

Originally, I felt I bit off a little more than I could chew because it was predicted to be a two- to three-week trial. [It] ended up being seven weeks, so the bill was running up, but it was well worth it.

And so every night, we’d get a lengthy report from the reporter, Dan McGraw, who’s written for a number of conservative and also non-conservative [outlets]. He’s an independent freelance journalist. He was in there every single day for seven weeks and the testimony, it was just a train wreck for the college.

So we’re covering it, but nobody’s paying attention. And then finally, the compensatory damages verdict came down of $11 million. Amazingly, just to show you how tone deaf they are, right after that verdict with the punitive to come, they bifurcated in Ohio because of Republican tort reform and the college sends out a mass email criticizing the jury verdict, which is astounding.

So they roll into the punitive. Now people are paying attention. I mean, The Wall Street Journal’s paying attention.

Bluey: Right, of course
they are. Yes.

Jacobson: But we’re still the only one with somebody in the courtroom because to most big news organizations, they’ve scaled back so much, they can’t afford to have somebody sit in a courtroom for weeks and weeks. And so we were the only one there every day in the courtroom.

Then the punitive verdict came down of $33 million. Now everybody’s exploding.

The college is playing victim that this is an attempt to hold them responsible for student speech. That’s their main defense and they’ve been on a public relations campaign. And that’s not actually true because the speech that was published, legally speaking, were the flyers and to some extent the resolution, and there is witness testimony that a senior officer of the corporation was the one doing that. Now, the flyer may have been drafted by students, but she was the one passing it out.

And kind of Corporate Liability 101 is if an officer of the corporation commits a tort within the scope of employment, the corporation can be liable. And she testified in court that she was there on behalf of Oberlin College, that part of her job was to attend protests. So it’s kind of hard to argue that it was outside the scope of employment, and so that was it.

Then the end result of all of this was Republican tort reform caps on punitive damages and noneconomic damages—essentially emotionally distress—kicked in, which lowered the $44 million verdict to $25 [million]. So the irony is that ultraliberal Oberlin got the benefit of Republican tort reform.

Bluey: That’s right. Yes, yes.

Jacobson: And I’m sure they’re happy to do that. And now it’s up on appeal and there’s no end in sight to the litigation.

Oberlin College or their insurance company—I’m not sure which, or some combination—according to court testimony, spent $5 million defending this case and it never made sense.

When they first filed their answer to the case … So the way it works procedurally is you file a complaint in court and a month later, two months later, the defendant files an answer. And in the answer, they went right after the bakery and blamed them for everything. And I wrote at the time, I said, “This is not going to work unless there are facts out there that have not yet been publicly revealed.” And by this time, the police report had been revealed. A lot had come out. I said, “I can’t see how this is going to work. They’re taking the wrong tactic here.” And lo and behold.

But it’s just an example of a powerful left-wing entity, which essentially runs the town and is not used to people standing up to it, which has reacted, in my view, completely irrationally in fighting this little bakery.

I mean, the bakery, I’ve got pictures of it. It’s not much more than your local 7-Eleven size-wise. It’s not a big place. It’s not a factory. It’s just a little bakery run by a family. They had seven or eight employees who had to be laid off because of the diminution in business.

I mean, think about it. If you’re a bakery in a college town and the college is boycotting you—the college did eventually restore the baked goods purchases but then ended them when they got sued. But the college community was boycotting them, and that was a big part of their business.

And so if you’re a bakery in a college town and the college community is boycotting you, it’d be like being a bakery in Washington, D.C., and everyone who works in the federal government and their family members are boycotting you. You can’t say, “It’s fine.”

Bluey: It’s going to have a financial impact, absolutely.

Jacobson: That’s right. And so, that’s where we are and they’re going to fight the appeal. They’ve hired new lawyers—not new layers, but additional lawyers, including some from D.C.—to fight the appeal because Oberlin College’s view is that the judge got the law wrong, that the statements were not legally defamatory, and that they did not publish them as a legal matter and that they’re simply being held responsible for student speech.

If that is the case, that sets a bad precedent because that would give colleges an incentive to clamp down on student speech. But of course, they ignore the part of the testimony of their dean of students, the senior vice president of the corporation, not only leading the protest with a bullhorn, but passing out stacks of the defamatory flyers. And so I don’t know what they’re thinking.

Now, it may just be that the plaintiffs demanded too much for settlement and they figured they should just fight it. I don’t know the answer to that, but something was wrong in the decision-making process there. If they’re going to defend it, they just did it the wrong way.

They could have been nice toward the bakery. They could have said, “We never meant to do anything. We don’t believe we did anything wrong. These are nice people. We want them to succeed,” etc. But instead, it’s just nonstop attacking this family.

Bluey: To the tune of $5 million.

Jacobson: $5 million.

Bluey: I mean, the settlement would have been probably significantly less than that even.

Jacobson: Well, I don’t know. Let’s say it wasn’t. But still, it’s a lot of money to spend. And the other thing is—and this is, I think, quite meaningful—Oberlin College moved to transfer the case out of Lorain County, which is their home county, because they didn’t think they could get a fair trial. They didn’t think they could get a fair trial in their home county. I think that should tell you something of the bubble that the college community is. And this is part of longstanding friction between Oberlin College and the surrounding community.

And that’s not uncommon that you have a town-gown sort of conflict, but it seems to have been particularly bad in Oberlin, perhaps because it’s so left-wing and they have so many of these crazy controversies, including one that made the newspapers.

It’s kind of funny when you think about it, the complaints about the General Tso’s chicken in the dining hall was inauthentic and that was offensive and the dining hall service actually apologized for insulting people culturally because of the chicken. I mean, just ludicrous, laughable things. But that sort of attitude was taken out on this bakery.

So I think Gibson’s was, in some ways, in the
wrong place at the wrong time. I do believe had the student who was shoplifting
done it a week earlier or two weeks later, it might have been different and
perhaps people wouldn’t have reacted. But there is a long history at Oberlin of
jumping the gun and not waiting for the evidence.

Bluey: Certainly. Now, you’ve talked about how it’ll have to go through this appeals process. In the meantime, Gibson’s Bakery has not received a dime of the damages. How is the bakery doing? Has the community rebounded? Have they showed that support? Have they been able to rehire any of the employees they had to lay off?

Jacobson: My understanding is that business has not really recovered that well, that students don’t shop there anymore. And the college community, whether it’s an official boycott or an unofficial boycott, is essentially boycotting the bakery.

So while the non-college part of the community, I think, has rallied around them, there’s only so long that can happen. I mean, people revert to their natural shopping habits. And while, when this originally happened, there was a large outpouring of support for the bakery in the non-college community, my understanding is that a lot of that has reverted to normal. And people will still go there but normally, not extra.

And so my understanding, again, not directly from the owners but I’ve had some readers who’ve stopped by there and they say the shelves are not well stocked, that they’re having trouble keeping things in stock, particularly things they have to pay for up front. And so whether they’ll survive or not, I have no idea. But they haven’t received a penny of this and they have, fortunately, lawyers who took it on contingency fee, a very well-known torts lawyer in Ohio, and the jury ultimately decided.

Now, whether it holds up on appeal, I’m not predicting one way or the other. Whenever you have a seven-week trial, somebody can always find things wrong the judge did, OK? And Oberlin fought this so hard that they contested everything. So they’ve got a laundry list of things they think the judge did wrong, but whether an appellate court will try to nitpick that … because if they do, there could never be a trial that survived because judges will always make evidentiary rulings that might be mistaken.

The issue, I think, is going to come down to some of the big legal issues. Was the flyer defamatory? I think an appeals court can look at it and decide.

The judge below, the trial court judge, was a very careful judge. He didn’t let everything get to the jury.

There were many other claims that never got to the jury, many other defamatory statements or allegedly defamatory statements that he held to be constitutionally protected opinion. But this flyer made statements that he considered to be statements of fact about the long history of racial profiling, and also statements which suggested that the author had additional information.

And so he went through a fairly careful legal analysis and there were only two that survived.

So there were many more. There were other claims that were thrown out, but the key claim survived what’s called summary judgment, and those were the defamation based on the flyer and the student resolution.

It was tortious interference with the bakery’s business because the business, technically speaking, was with a food service company. It wasn’t with the college. So when I said before that the college stopped purchasing, actually they directed the food service company. So because it was a contract between the bakery and an independent entity, Oberlin could interfere with it.

And then there was intentional infliction of emotional distress, which is a pretty high hurdle. So I think that’s one that I could see an appeals court taking a look at, does this meet the standard for intentional infliction of emotional distress? Which is a high standard. But the judge thought it did. And like I said, this was not a judge who was hesitant to throw things out if he didn’t think there was enough evidence to support it.

And so it’s a fascinating case about, what do they say, power corrupts and absolute power corrupts absolutely. And in Oberlin College communities, a lot of times these colleges and universities consider themselves to have absolute power because they’re such an economic force.

Bluey: I want to continue the conversation on that, but before I do, I want to applaud you and Legal Insurrection for taking the steps that you did to cover the case.

It reminds me of a story that Mollie Hemingway tells about the Kermit Gosnell case in Philadelphia and how many news organizations just completely ignored it or they suggested that it was a local crime story and not a national issue that they should cover, and … this famous picture of the press benches being completely empty for that horrific case of this abortion doctor who was up on murder charges.

So I think it’s really important that whenever possible, we step into these situations and provide that coverage that maybe the national news media or even local news media fails to do.

Jacobson: I remember the photo, and an image like that can be extremely powerful. And while we didn’t have images because the court severely restricted [taking photos]—in fact, we had trouble getting a press pass.

I mean, the judge was very nice, but he gets an application for a press pass. “Legal Insurrection, what is Legal Insurrection?” So Dan had to go in and explain to him, and I actually had to provide an email statement saying who we were and that we actually did news coverage and things like that.

Now, we could have been in the courtroom anyway as a visitor, but being press, you could take limited photography in the courtroom and that was important. So you couldn’t take photos of people testifying or the jurors, but you could kind of take b-roll, if you want to call it that, kind of background photos, so that ended up being very helpful to us.

Bluey: That’s great, that’s great. Now, you had another experience on a college campus, Vassar, where you were going to deliver a lecture on hate speech and were met with, again, a reaction that you might typically find at a liberal or, shall we say, leftist environment, on a college campus.

So tell our listeners about what that experience was like and how you turned it, perhaps, to your advantage in the end.

Jacobson: I was invited to speak at Vassar College on the issue of hate speech and free speech. I’d spoken there several years earlier against the academic boycott of Israel, and I was invited at that time by the Vassar Conservative Libertarian Union, which was like nine students on the campus. So a couple of them were either still there, and so I was invited to speak about free speech.

And Charlottesville had just happened, and I said, “My concern is that people are going to try to use that to clamp down on free speech on campuses.” People who want to clamp down on free speech anyway would do that. And so they schedule it and I said, “Why don’t we title it, ‘Hate Speech’ Is Still Free Speech Even After Charlottesville”? I felt that would get attention and would really focus the issue.

Bill Jacobson says he encountered a skeptical audience at Vassar College on the topic of “hate speech” but they listened to his lecture and asked good questions. (Photo courtesy of Legal Insurrection)

When they put up the posters, whatever it was, two weeks before, three weeks before, the campus completely melted down. When I say completely melted down, they had two campus-wide meetings attended, according to reports, by hundreds of students, faculty, and administrators about what to do with me coming to campus to talk about this.

The rumors were spread … not just rumors, emails, including from the student government that I was a white supremacist coming to campus with my white nationalist followers to target minorities.

They falsely accused me not only of that, but of spreading advertising for the thing on white nationalist websites and a whole bunch of other things, and the campus went into meltdown.

They organized safe spaces for my visit. They organized safety teams to guide people to safe spaces with glow sticks if they couldn’t find the safe spaces. In the library, which was the main safe space, they had coloring books for students—college students. It was the craziest thing.

The student government executive board sent a letter to the president demanding they terminate my appearance. And I’m sure you have many lawyers who listen. They had a great line in there which I loved. They said, “We demand that you breach the contract for him to appear.”

… I think she could have done better, but she didn’t. And so I appeared and they had me escorted onto campus. I had to meet at campus security off campus, very tight security, bags checked, all that sort of things. They had protesters show up dressed like Antifa in protest.

So we were in what I think is the largest classroom there, lecture hall. If it’s not the largest, it’s one of them. I think capacity was over 200. It was over capacity, students overflowing into the hallways. So we probably had close to 300 students, and as soon as I started speaking, they realized, I think, they’d been had, that I was not who I was portrayed to be.

I spent 45 minutes with a basic lecture about the First Amendment, the history, why it’s important, why historically it’s actually protected left-wing speech, that the anti-war movement and the other movements could not have developed if not for the protections.

Bluey: You’re absolutely right, yes.

Jacobson: And then I went through the rest of the Bill of Rights and I went through each of the rights of the Bill of Rights and I said, “While they may not technically apply here on campus, I’m sure you don’t want the college administration to take your stuff without some process by which you could contest it, some due process.” I said, “You don’t want to give up that right here.”

And I said, “Certainly you don’t want the dean … ” And the dean was sitting there. He’d been at my speech four years earlier. And I said, “I’m sure you don’t want the dean to come and just search you because he feels like it without some probable cause to believe that you’ve done something wrong.”

And I went through a bunch of other things. I went through my favorite one, which is the Third Amendment, which nobody seems to know, which is you cannot quarter a soldier in a private home in time of peace. I said, “You don’t want the administration quartering security to sleep in your room.”

I went through all of these and I said, “Why is it you want all of these rights in the Bill of Rights on this campus, even if it technically doesn’t apply, but the one right you’re so willing and eager to give up are your free speech rights?” I said, “Why is that?” I said, “Maybe it’s because on this campus, you have power and therefore your speech is not going to be stifled. But go outside those gates and guess what? That’s Trump country, and you wonder why the nation—or at least half the nation—voted that way even though you don’t know anybody who voted for him.”

I said, “So if you give up First Amendment rights on this campus and you are willing to suppress speech on this campus, you have no right to complain if somebody does it to you beyond the fence and beyond the gate.”

It was a great 45 minutes, no interruptions, although they came ready for a fight.

Bluey: I bet, yes.

Jacobson: No interruptions, and then we had question-and-answer. [An] hour and 15 minutes, the students lined up to ask [questions], including someone dressed in black. There were mostly good questions. I mean, I think questions that reflected that they’d never really had to think about these things before, but they were, let’s say, good-faith questions.

And it would have gone on longer, because when I do a lecture, for the most part, I’ll just stay until the last question. I don’t have a [limitation,] unless the organizer has a limitation. And finally the security said, “It’s getting late. It’s 10 o’clock at night. We got to go home,” and so they called off.

But almost every student got to ask a question and it was one of the best nights I’ve ever had on a campus.

One thing it taught me is that there is a hunger out there on behalf of students to learn about what you would think are basic civic lessons that they’ve never had. And they’ve never had anybody explain it to them, and why it’s important, and why even allowing speech you consider offensive is really important.

A student asked a question along those lines, like, “Why should we allow something … ” I said, “Well, what if I consider your speech offensive?” I said, “Do I get to stop you from speaking?” I said, “You have power here, but you don’t have power. Don’t turn free speech into who has the power, because you’re going to ultimately lose that argument. Because in this society, liberal students on college campuses don’t have power.”

So I got some emails afterward from students who thanked me for coming, were ashamed of how I was treated. I know the alumni were really furious, and some wrote letters to the newspaper and to the president about how I was treated and so on.

But it was really informative to me, because one, it was one of those [out-of-body] experiences that I’ve seen others go through where they are kind of demonizing this person. And it’s only after a while you realize that’s you they’re talking about, but the person they’re talking about bears no resemblance to you. And so I understand what that is for people.

The other thing is, I think that there are opportunities, I think, for conservatives, by providing alternative educational mechanisms to students, as I know [The Heritage Foundation] does and other organizations do, because there are students who want to hear it. There is an audience—

Bluey: They really do, yes.

Jacobson: There is an audience for that message.

Bluey: They really do. I wholeheartedly agree.

I want to ask you on this topic: It was just a few weeks ago that Mark Zuckerberg came to Washington, D.C., and delivered a much-discussed speech at Georgetown University in which he defended freedom of expression and giving minority viewpoints a voice on his platform, Facebook.

He pretty much said at that point he was not going to ban political ads or political speech on the platform. Followed by, a couple weeks later, Twitter deciding that it was going to do that, it was going to wipe out political advertising.

What do you make of this debate we are having over freedom of expression, particularly when it comes to politics in this country?

Jacobson: It’s a reflection that the campus culture has moved off campus to me, and these are the arguments that have been waging on campuses for two decades now, but particularly the last decade. And a lot of those students took their culture, the culture of cancel culture, I think it’s called, and call-out culture, and the concept that hate speech should be illegal, and now they’re working at Twitter and they’re working at Google and they’re working at Facebook and they’re working elsewhere.

Maybe they’re not in senior enough positions to impose their will, but they are there, and I think that’s what we’re facing and I think it’s a real, real problem.

I don’t know what the answer to it is, but I think what started on campuses in many different ways has now migrated to the general culture, and it’s something that you have to fight as a cultural fight. Not the old culture wars, religion versus non-religion, things like that, but it’s you cannot assume that people who are in their 20s or maybe even their 30s have ever had the sort of things that we just take for granted about the importance of individual rights.

Bluey: Now, you started Legal Insurrection, as you mentioned, 11 years ago. It was at a time when social media was starting to become the norm and attracting more users. Why is it so important as a publisher yourself to be able to have a voice and a way to distribute content outside of the traditional forms of media?

Jacobson: Well, I started at a time, which I know you remember, when we had something called the conservative blogosphere when everybody was starting blogs and they would interact with each other.

It was a fairly vibrant community and people would meet at CPAC [the Conservative Political Action Conference] or wherever. There were various blog conventions and things like that. I didn’t go to many of them, but I know that culture existed. And that fell apart, I think, because of social media.

It became much easier for people to migrate to Twitter or to Facebook, but I think particularly Twitter. So I credit Twitter with basically destroying the conservative and the liberal blogospheres because I know how much work it is to run a blog.

The first two years I was solo, and then it was me and one student from the Cornell Republicans. So for three years, it was basically me. It’s a lot of work to constantly provide fresh content when you’re yourself.

And so if you’re somebody who wasn’t successful—I was fortunately able to get people to link to me and get attention—and maybe you’re getting 2,300 visits a day and you’re putting all this work into it, now all of the sudden there’s Twitter. You don’t have to do a lot of work, you don’t have to run a website, and if you’re mildly provocative, you can get tens of thousands of followers and it’s easy.

I used to have a blogroll on the website and I’d go through it every six months and a dozen, two dozen of these small websites no longer were publishing. So I’d sift through them because I didn’t want dead links on my website, and then I just eliminated it because I was down to so few.

And so I think that that, though, gave up a lot of freedom because when you run your own website—although nowadays who knows with de-platforming—for the most part you have control. If you’re on Twitter and enough people report you to Twitter, whether you did anything or not, you’re going to find yourself locked out or shut down and there’s really no appeal process. Same with Facebook, same with YouTube, same with all of the social media.

So while it was easy and it did destroy both left- and right-wing blogs, you gave up something for it. We never did that. We do use social media, not very effectively, but we do use it, but we don’t have a social media person, OK? We’re just not that big. We can’t afford it. But we use it, and it is an important source.

I mean, we’re not like some websites where they got a huge percentage from Facebook and then when Facebook changed the algorithm their traffic disappeared. I think we get maybe 10%, maybe 15% from social media, maybe 20%. So it’s meaningful. It gets us people who may not otherwise see us. But if we got kicked off Twitter and Facebook, it wouldn’t be the end of us the way it would some websites.

So I think people need to be really careful. We’ve had our YouTube account taken down. We got it restored because we got attention for it being taken down. And I won’t blame YouTube for that, although, there’s a part of me that doesn’t think it would’ve happened to a liberal website.

An opponent of ours filed three copyright takedown notices because YouTube has a three-strike rule. Now, they’re supposed to notify you to give you a chance to file a counter notice, which we would have done. But they did it, I think, strategically to try to take us down, so we never got notification.

I just went and, “Your account no longer exists.” And there’s nobody to call, there’s nobody to write to. I couldn’t even log in to file counter notices because I was locked out of the account. The account no longer existed.

We managed to get publicity, and we did file our counter notices and we did succeed and these should never have been filed against us, but that strategic takedown … I just wonder whether if we were a liberal website—whoever was reviewing, somebody at YouTube decided to take us down—whether we wouldn’t have at least [have] gotten an email saying, “Are you going to be filing something?”

So we did get YouTube restored. We got kicked off of the Amazon Associates Program. Amazon Associates is the commission-sharing where … it was very big in the blogosphere.

Bluey: If you link to a book, you get a certain percentage of the money that’s made off of the sale.

Jacobson: If we put a link to Amazon on our website and someone clicks on it and goes buys things there, Amazon tracks it and you get a percentage, and a meaningful 6%, 7%, 8%.

And so again, another thing, I just get an email on a Saturday morning, “Your account has been terminated for violating our terms of service.” I said, “What are you talking about?” And so I finally did manage to get an explanation of them and they said, “Well, you’ve been emailing links to products and that’s prohibited by our terms of service.” And I looked at the terms of service and that’s true.

I said, “But, we’re not doing that.” And they said, “Well, yes you are.” And I said, “Give me an example because I have no idea of us doing that and I’ve checked with people and we have no knowledge of somebody doing that.” And they said, “Well, we can’t give you that because our investigative methodologies are proprietary.”

And so we got kicked off of Amazon and never been restored to Amazon. I got to wonder why. It makes no sense to me. We’re not emailing links, you won’t give me an example of us emailing links, and you won’t even tell me the basis on which you’re saying it.

I run a website—it’s actually not part of Legal Insurrection, but I run it—called elizabethwarrenwiki.org. It’s where we have brought together in one place a massive amount of research about her, I think more than any place on the internet. Elizabethwarrenwiki.org. And Facebook took down our page.

It had been in existence for seven years because the wiki has been in existence for seven years, ever since her 2012 campaign, and one day they say, “You’re impersonating her.” I said, “After seven years you’re telling me we’re impersonating her?” And it was … I don’t know what. I mean, it says “wiki” in the title. We actually have a disclaimer on it that says we are not affiliated with her, which is what Facebook rules say you should do.

We got publicity about it, and within about two hours of Fox News calling Facebook for comment, it was restored.

I just have to wonder, all of these things [being done] to a little blog like ours, a little website, I think that’s part of a problem. I can’t believe liberal websites are having all these problems with social media. Now, it’s anecdotal. I can’t prove it. I don’t have access to the data behind the scenes of what goes on at Facebook and Twitter and YouTube. I just find it hard to believe. And you hear too many of these stories.

So we had these means of communicating. We
used to have email lists, we used to interact with each other in person twice a
year, we used to do all these things which no longer exist because we all rely
on social media. But we’re hostage to social media. The social media is now run
by the same people who were attacking Gibson’s Bakery.

Bluey: Yeah. Well, Bill, thank you for sharing that. I do want to applaud you … I think that this attention that you’ve garnered is probably a testament to your influence and success because that is certainly what seems to be the case for many conservatives who are having a positive impact or any impact.

We’ve experienced some of the same challenges here at The Heritage Foundation and The Daily Signal that you’ve talked about with individual staff being suspended or certain types of content being removed.

I think that the thing that’s most frustrating is that an organization like ours or other conservative entities can go to the Washington, D.C., office of these tech companies and probably get the content restored, or if not, lodge an appeal, but there are millions of conservatives out there who this is happening to who don’t necessarily feel that they have a voice or know what to do. And so we encourage them to share their stories with us.

You can send us a letter at [email protected] if you’d like to share an example of how it’s happened to you.

Bill, I think
we’re going to leave it there for today, but I just want to say congratulations
on the success you’ve had. Thank you for sharing with us your personal
experiences, the coverage you provided to the Gibson’s Bakery case, and best
wishes and success in the future at Legal Insurrection.

Jacobson: Thank you very much.

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