The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The question of whether then-President Donald Trump could block people on Twitter focused a lot more attention on a curious little world of how politicians behave on social media. In our brave new world, government officials have social media accounts, as do governmental entities. Government officials and governmental entities are bound by the First Amendment. Blocking people on Twitter mostly raises questions about social media etiquette, but courts are increasingly being asked whether it also raises questions about constitutional law.
The Knight First Amendment Institute sued Donald Trump for blocking people on Twitter, arguing that the reply thread to his @RealDonaldTrump account had become a designated public forum and posting in that virtual space was protected by the First Amendment. Eventually they won in the Second Circuit. Other courts have similarly found that when government officials use social media accounts as a tool of office, they are constitutionally limited in how they exclude people from that virtual space (though not if they keep their public business out of their private social media account).
Since state universities are also governmental actors, and state universities maintain social media accounts, it was only a matter of time before these questions intersected with campus speech disputes.
Bruce Gilley is a political science professor at Portland State University. In the past few years he has become a fairly controversial figure, initially as a result of publishing a scholarly article making the case for colonialism.
He has now filed suit against the communications manager of the University of Oregon Division of Equity and Inclusion for blocking him on Twitter. The Division of Equity and Inclusion is a center on the University of Oregon campus, and it has an official Twitter account.
Oregon's flagship state university has a Division of Equity and Inclusion ("Division"), whose communication manager, Tova Stabin, posts content on the topics of diversity, equity, and inclusion on the social media platform Twitter, using the Division's official account. She recently posted a "Racism Interrupter" prompt, which was open to comments by other Twitter users. But when Bruce Gilley posted "all men are created equal," Tova Stabin blocked him from the Equity Division's Twitter account, because he promotes a colorblind viewpoint with which she, and her employer, disagree. Stabin's blocking constitutes impermissible viewpoint discrimination, and it violates the First Amendment.
On July 5, 2022, after Bruce Gilley filed a public records request for the policy utilized by VPEI to block Twitter users, the University of Oregon informed him that there was no written policy and that the "staff member that administers the VPEI Twitter account and social media has the autonomy to manage the accounts and uses professional judgment when deciding to block users."
In both cases, the University of Oregon has created the @UOEquity Twitter account to engage with the public and to solicit feedback. Its purpose is to interact with the public and to foster exchange. That is a public forum. Defendant Stabin was and is a state actor acting in the course and scope of her employment when she blocked, and continues to block, Bruce Gilley from the @UOEquity account. Defendant Stabin acted in a viewpoint discriminatory manner when she blocked Bruce Gilley from the @UOEquity Twitter account.
Defendant Stabin has a pattern and practice of blocking Twitter users from the @UOEquity Twitter account who express viewpoints she disagrees with, including viewpoints that are critical of the ideology of diversity, equity, and inclusion or the Division. Defendant Stabin, by blocking Gilley, also failed to implement a narrowly tailored content-neutral time, place, and manner restriction.
Should be interesting.