A judge has rejected a motion to dismiss a free speech lawsuit filed by a professor who was blocked on Twitter by a University of Oregon account after he tweeted “all men are created equal.” The judge said that probably violates the First Amendment. But the judge refused to issue an order telling the University of Oregon not to do that in the future, saying it was only speculative it would ever do that again in response to the professor.
Portland State University Professor Bruce Gilley brought a First Amendment lawsuit last year, and in late January U.S. District Judge Marco Hernandez rejected the University’s request to dismiss the lawsuit for failure to state a claim for relief, saying the lawsuit did plausibly allege a First Amendment violation.
But Professor Gilley didn’t get what he wanted most — an injunction against the University — because Judge Hernandez denied Gilley’s motion for a preliminary injunction commanding the university not to block him on Twitter again.
Without the ability to seek an injunction, the most Gilley can obtain in his First Amendment lawsuit is monetary damages from college officials and attorneys fees from the university. And even if he obtains monetary damages, they may be quite minimal, perhaps nothing more than nominal damages, like $1: some have argued that the law in this area is vague, and when the law is vague, qualified immunity prevents people from seeking monetary damages from government officials for things like emotional distress and punitive damages.
So in response to the denial of his motion for an injunction, Gilley’s attorneys swiftly filed an appeal with the federal appeals court in San Francisco, asking it to impose a preliminary injunction against the university.
“We are hoping the Ninth Circuit reverses the district court and imposes a preliminary injunction,” said Del Kolde, a lawyer with the Institute for Free Speech, which represents Gilley. ““The case is about making a point that the First Amendment protects viewpoint diversity, including the right to criticize the secular religion of DEI.”
In response to the appeal over the preliminary injunction, the University of Oregon cross-appealed the denial of its motion to dismiss the lawsuit in its entirety, to the Ninth Circuit Court of Appeals. It is not clear that the appeals court has any jurisdiction to hear that cross-appeal, because most pretrial orders, unlike the denial or grant of an injunction, are not appealable until after a trial or final judgment conclusively resolving a lawsuit.
“We believe that their cross appeal is not proper, so we filed a motion to dismiss their cross appeal, and are awaiting a ruling on that,” Kolde says.
Gilley’s lawsuit resulted from from a Twitter dispute last summer.
UO’s Equity and Inclusion Twitter account had tweeted “You can interrupt racism,” suggesting that potential interrupters say, “It sounded like you just said [blank]. Is that what you really meant?”
In response, Gilley retweeted it with the statement “all men are created equal,” tagging both the University of Oregon and its Equity and Inclusion Twitter accounts.
The lawsuit alleges Tova stabin, communication manager for the university’s Division of Equity and Inclusion (who spells her last name using only lowercase letters), blocked Gilley in response to his tweet.“Blocking also removed Bruce Gilley’s ‘all men are created equal’ reply from @UOEquity’s timeline and prevented other users from viewing it or interacting with it, and with Gilley, including followers of the @UOEquity account,” the complaint in the lawsuit notes.
The complaint alleges that the reason stabin blocked Gilley is because “she and her employer disagree with the viewpoint … that ‘all men are created equal.’” It also says stabin “believes that Prof. Gilley’s opinion is critical of her employer’s DEI ideology and she wishes to suppress his viewpoint.”
Hernandez’s ruling partly agreed with Gilley. “There is also evidence to support the conclusion that Defendant stabin blocked Plaintiff due to his viewpoint,” wrote the judge, complying with stabin’s request to spell her name with lowercase letters.
But the court also indicated that the dispute is moot at this point, deeming it a rare event for @UOEquity Twitter to block anyone, and further noting that the offending official, stabin, has since retired: “In this context,” the judge said, “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.”
According to the Portland newspaper, The Oregonian, 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.”