A lawsuit by Portland State University professor Bruce Gilley can proceed against the University of Oregon over his temporary ban last year from the UO’s Twitter account on equity issues, a federal judge has ruled.
U.S. District Judge Marco A. Hernandez denied the UO’s motion to dismiss Gilley’s lawsuit, saying the political science professor raised legitimate claims that the 60–day blocking last June violated his free speech rights.
At the same time, he denied Gilley’s request for a preliminary injunction against the University of Oregon, saying Gilley hasn’t shown that he’ll face future harm from what was a temporary restriction.
Gilley sued the University of Oregon and a former university employee after he was bumped from the school’s Division of Equity and Inclusion’s Twitter account following a comment he made on June 14.
Tova Stabin, who worked as a UO communications manager, blocked Gilley’s Twitter account after he retweeted and added a comment to an @UOEquity Tweet that included a “racism interrupter” tool designed to help people respond to remarks they consider racist or offensive.
The @UOEquity Tweet suggested people say: “It sounded like you just said ______. Is that really what you meant?”
Gilley, in his retweet, filled in the blank: “My entry:…you just said ‘all men are created equal.’”
He has publicly criticized state efforts for inclusive educational curriculum
as “identity politics” and has been highly critical of university diversity, equity and inclusion initiatives. Stabin testified during an earlier court hearing that she thought Gilley’s retweet was “off topic.” She has since retired. The judge found that Gilley raises “serious questions on the merits of his claim that he was blocked based on his viewpoint.”
But Hernandez also found that the staffer’s decision to block Gilley appeared to be an anomaly and that the UO was unlikely to block him on Twitter in the future for the exercise of protected speech.
After Gilley filed his lawsuit, the university unblocked him and the university’s general counsel sent him a letter informing him that the school didn’t intend to block him in the future.
Internal emails revealed that UO’s general counsel requested that Gilley be unblocked immediately unless he engaged in speech “not protected by the United States and Oregon Constitutions,” according to the judge’s opinion. The UO’s communication department also sent an email to staff reinforcing that “viewpoint discrimination” isn’t permitted when managing social media accounts.
“In this case, the Court has concluded that Plaintiff may well succeed on the merits with respect to his backward-looking claims for relief, while he is not likely to succeed on the merits with respect to his forward-looking claims,” the judge wrote.
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, according to the judge’s ruling.
Hernandez found that UO’s Equity Twitter account is a “limited public forum,” which requires that any government restrictions “be reasonable and viewpoint-neutral.”
Even if Gilley’s post was “off-topic (and reasonable minds could conclude that it was not),” the university “still could not block him for expressing a particular viewpoint because to do so would be inconsistent with both the (university) guidelines and the Constitution,” the judge wrote.
Gilley sought damages of $17.91 — reflecting the year 1791 when the Bill of Rights and the First Amendment were ratified — against Stabin. The university’s general counsel mailed $20 in cash in care of Gilley’s lawyer to satisfy his request for damages. But the judge found that the cash doesn’t end the case unless the university acknowledges that its payment stemmed from a First Amendment violation.
“The Court concludes that Plaintiff’s claim for nominal damages is not moot unless Defendant accepts entry of judgment in Plaintiff’s favor for the amount of $17.91,” the judge wrote.