In Gilley v. Stabin, Judge Hernández offered this background:
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….
Plaintiff later filed a public records request with the University of Oregon to inquire about the policy VPEI uses to block Twitter users. … The University initially responded 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.” …Plaintiff also asked whether other Twitter users had been blocked from @UOEquity, and the University responded that two other users were blocked. … Plaintiff asserts that “[b]oth of the other users have expressed politically conservative viewpoints, including criticizing posts of the @UOEquity account.” Am. Compl. ¶ 70.
On June 27, 2022, Defendant stabin responded to an email from University of Oregon employee Kelly Pembleton, who was helping respond to Plaintiff’s public records request. Defendant stabin sent the following in response to Pembleton’s request for a list of the users she had blocked on @UOEquity:
“Doesn’t take real long. I’ve only ever blocked three people. Here is the list. I’m assuming the issue is this guy Bruce Gilley. He was not just being obnoxious, but bringing obnoxious people to the site some. We don’t have much following and it’s the social I pay least attention to. Here’s a screenshot of everyone I’ve ever blocked. I hardly do it (and barely know how to).”
Minutes later, Defendant stabin sent another email to Pembleton about the records request. The email reads, in pertinent part:
“Oh, I see. It is Bruce who brought it. Not surprising. He was commenting on one of the “interrupt racism” posts, as I recall talking something about the oppression of white men, if I recall. Really, they are just there to trip you up and make trouble. Ugh. I’m around at home for a quick zoom about it.’
The court found that the record was sufficient to go forward after finding that this is indeed a limited public forum, including the following analysis:
[A] Twitter page is a forum designed for expressive activities. Garnier, 41 F.4th 1178 (“Social media websites—Facebook and Twitter in particular—are fora inherently compatible with expressive activity.”). Defendant stabin testified at the hearing that the Racism Interruptor prompts she posted were intended to serve as tools for individuals to use when they encountered discrimination in their daily lives, rather than to promote discussion on the Twitter page as such. Ultimately, however, the expressive activity on the Twitter page is not “incidental” to its operations, unlike ads on metro buses whose primary function from the government’s perspective is to generate revenue. …
… the Court concludes that @UOEquity is a limited public forum. The University adopted and published guidelines restricting the content that can be posted on the page and permitting administrators to block users who violate them. Those guidelines have been reinforced to faculty and staff who manage the accounts. The degree of enforcement appears less rigorous than in Seattle Mideast Awareness, but the nature of the forum is different, and the Court declines to find on the record before it that the University has abdicated responsibility for enforcement. The Court concludes that the University did not affirmatively open @UOEquity as a designated public forum. Therefore, any restrictions on speech in @UOEquity must be reasonable and viewpoint-neutral. Hopper, 241 F.3d at 1075.
Professor Gilley maintained that the other two barred individuals posted conservative viewpoints. The Court does not rule on the merits, which will have to be addressed at trial.
The case is interesting since many on the left support the censorship programs at Twitter and other social media. However, if the same censorship is carried out directly on state-related accounts, it can trigger First Amendment challenges.
What was notable is that the General Counsel’s office took action to defuse the situation but only after the filing of the lawsuit. It sought to open the account and pay the nominal fees sought to end the litigation.
On August 11, 2022, Plaintiff sued Defendant stabin for violating his First Amendment rights in blocking him on @UOEquity. Compl., ECF 1. The University’s Office of General Counsel learned of the lawsuit the following day. … Also on August 12, 2022, the Division unblocked Plaintiff’s Twitter account from @UOEquity.
On August 16, 2022, Kevin Reed, the University’s general counsel, sent a letter to Plaintiff’s counsel, Del Kolde. Id. ¶ 5, Ex. 2. This letter read, in part:
“In any event, Prof. Gilley (@BruceDGilley) was unblocked from the Twitter account at issue (@UOEquity) last Friday, August 12, 2022, and the Division of Equity and Inclusion does not intend to block him or anyone else in the future based on their exercise of protected speech. My office has reinforced to our colleagues who control the University’s multiple social media channels that, if they open such channels to comments, they may not block commentary on the basis of the viewpoints expressed. I have further confirmed that those social media channels controlled by UO’s central communications unit have no blocked users.
Finally, enclosed with the hard copy of this letter to Mr. Lee is $20 to cover the nominal damages of $17.91 alleged in your complaint. Ordinarily the University would issue a check; however, we are enclosing cash to avoid the administrative hassle and delay of issuing a check. Accordingly, your lawsuit is now moot, as there is no longer any effective relief that the federal court can grant, and we ask that you voluntarily dismiss it.”
It was a smart effort by the General Counsel’s office but came too late. What is curious is that the court says that the office only learned of the lawsuit after it was filed. There are generally intent to sue letters and other communications before an actual complaint is filed. It is not clear why the General Counsel was not aware of the expected lawsuit.
Ultimately, the court ruled that the assurances of the university is not sufficient to moot the case and that both injunctive relief and declaratory judgment are still possible in the case.