The Volokh Conspiracy
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Lawsuit Over Blocking of Portland State Prof. Bruce Gilley from @UOEquity Twitter Feed Can Go Forward
"The evidence is sufficient to raise [but not to resolve] serious questions on the merits of Plaintiff's claim that Defendant stabin blocked him on account of his expression of a viewpoint."
From Gilley v. Stabin, decided yesterday by Judge Marco Hernández (D. Ore.):
Defendant tova stabin {[who] spells her name with all lowercase letters} was previously the Communication Manager for the Division of Equity and Inclusion … at the University of Oregon….
On or about June 14, 2022, Defendant stabin, in her capacity as Communication Manager, posted a "racism interruptor" to the Division's Twitter page, @UOEquity. The Tweet read "You can interrupt racism," and the prompt read, "It sounded like you just said_________. Is that really what you meant?"
Plaintiff Bruce Gilley, a professor at Portland State University, responded to the Tweet the same day it was posted with the entry "all men are created equal." Plaintiff is critical of diversity, equity, and inclusion ("DEI") principles, and intended his tweet to promote a colorblindness viewpoint. Plaintiff tagged @uoregon and @UOEquity in his re-tweet. Also on June 14, 2022, Defendant stabin blocked Plaintiff from the @UOEquity account. Once he was blocked, Plaintiff could no longer view, reply to, or retweet any of @UOEquity's posts….
Gilley sued, and the court allowed the lawsuit to go forward; the court concluded that the comments to the @UOEquity account were a "limited public forum," where any government-imposed restrictions had to be viewpoint-neutral and reasonable, and "Plaintiff raises serious questions on the merits of his claim that Defendant stabin violated his First Amendment rights when she blocked him on Twitter."
Defendant stabin testified that she blocked Plaintiff because she thought his post was off-topic and did not make sense in the context of the Racism Interruptor prompt, and she worried that he would disrupt the @UOEquity Twitter page by attracting more off-topic posts from other users. She testified that she was aware of the social media guidelines when she blocked Plaintiff. She testified that she briefly viewed Plaintiff's Twitter page with the retweet of the Racism Interruptor and then blocked him without further investigation and without consulting anyone else. She conceded that she blocked Plaintiff before he attracted disruptive users to the site. Defendant stabin testified that she did not disagree with the sentiment "all men are created equal" and in fact agreed with it, though she would prefer to use the gender-neutral term "people."
There is some force to Defendant stabin's testimony. She testified that the purpose of the prompt was to give people tools to use to respond to discriminatory comments they might hear in their daily lives. The text announcing the prompt when it was posted reads "You can interrupt racism," which supports her testimony. Inserting Plaintiff's response of "all men are created equal" into the blank in the Racism Interruptor prompt yields the following result: "It sounded like you just said 'all men are created equal.' Is that really what you meant?" The phase "all men are created equal" could reasonably be said to appear inconsistent with the purpose of the prompt and off topic.
A limited public forum may impose subject-matter limitations. At least one district court has held that a rule restricting off-topic posts on a public university's social media account was reasonable and viewpoint-neutral. Krasno v. Mnookin (W.D. Wis. 2022). Without the benefit of full briefing on the reasonableness of the off-topic provision, the Court believes at this point that a jury could reasonably conclude that Defendant stabin did not violate Plaintiff's First Amendment rights.
There is also evidence to support the conclusion that Defendant stabin blocked Plaintiff due to his viewpoint. In an email to another University employee, Defendant stabin stated that Plaintiff "was not just being obnoxious, but bringing obnoxious people to the site some." In another internal email, Defendant stabin stated that Plaintiff was "as I recall talking something about the oppression of white men, if I recall." Defendant stabin also wrote, "Really, they are there to just trip you up and make trouble."
At the hearing, Defendant stabin testified that she thought Plaintiff was being obnoxious because he would bring off-topic posts that would move the site away from its purpose. She testified that she wrote the second email quickly and remembered the events wrong. She testified that "they" in the second email referred to people who want to disrupt the Twitter account. The evidence is sufficient to raise serious questions on the merits of Plaintiff's claim that Defendant stabin blocked him on account of his expression of a viewpoint….
But the court declined to issue a preliminary injunction against future blocking:
Furthermore, the circumstances indicate that Defendant stabin's blocking of Plaintiff was an anomaly. Blocking is rare on the @UOEquity Twitter account. Since 2017, there have been a combined 2,558 replies and retweets by other users on the @UOEquity Twitter account. Only three users have been blocked since the account was created, and currently no users are blocked. Defendant stabin testified that she acted alone in blocking Plaintiff and did not consult any other University staff after she blocked him. There is no evidence indicating otherwise.
Defendant stabin has since retired from the University, and her successor was still unknown on the date of the hearing on the present motion. In this context, it would be speculative to conclude that this unknown successor is likely to block Plaintiff on Twitter again. Plaintiff has not met his burden to show that he is likely to be blocked in the future….
