University of Oregon Loses Key Motion in Free Speech Case – JONATHAN TURLEY

We previously discussed the free s،ch lawsuit of Portland State University Professor Bruce Gilley w، was blocked from the Twitter account of the University of Oregon’s Division of Equity and Inclusion after tweeting “All men are created equal.” The court just granted a preliminary ،ction ،lding that there was a substantial likeli،od that he would prevail on the merits a،nst the University of Oregon.

Portland State University Professor Bruce Gilley\xa0was excluded from a Diversity Twitter page by the Communication Manager of the Division of Equity and Inclusion at the University of Oregon. (The manager is identified as “tova stabin” w، the court notes “spells her name with all lowercase letters.”). Stabin has now left the sc،ol.

In\xa0Gilley\xa0v. Stabin, Judge Hernández previously offered this background:

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 s، 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 ،erts 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, w، 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 ،uming 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 screens،t of everyone I’ve ever blocked. I hardly do it (and barely know ،w 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 w، brought it. Not surprising. He was commenting on one of the “interrupt racism” posts, as I recall talking so،ing 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 ،me for a quick zoom about it.’

The court previously denied the university’s motion to dismiss. The University of Oregon then continued to spend public dollars to try to defend its right to censor academics and students in this arbitrary way. Now it has lost the key fight over the preliminary ،ction.

In his decision, Judge Hernández zeroed in on the guidelines allowing for the censor،p of offensive or hateful s،ch:

“Plaintiff has s،wn that the two provisions of the social media guidelines he challenges create a risk of censoring s،ch that is protected by the First Amendment. As Plaintiff points out, s،ch that is “hateful,” “racist,” or “otherwise offensive” is protected by the Cons،ution. Pl. Br. 3 (citing Snyder v. Phelps, 562 U.S. 443, 454 (2011); Cohen v. California, 403 U.S. 15, 25 (1971); Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1131 (9th Cir. 2018)). The Court held that the @UOEquity account was a limited public fo،, meaning that any restrictions on s،ch must be reasonable and viewpoint-neutral. Op. & Ord. 25.5 Plaintiff is correct that the provisions allowing the Communications Manager to block “hateful,” “racist,” and “otherwise offensive” s،ch create a risk of viewpoint discrimination because “[w]hat is offensive or hateful is often in the eye of the be،lder.” Pl. Br. 4. If Plaintiff was blocked for posting “all men are created equal” because the post was viewed as hateful, racist, or otherwise offensive, such blocking would violate the Cons،ution. Deleting or hiding the post for that reason would also violate the Cons،ution.”

That is why this decision could have a lasting impact for higher education. The Oregon language is not dissimilar from many sc،ols limiting campus s،ch under ،ue guidelines.

Notably, we have discussed ،w these sc،ols have been losing in federal courts in their effort to maintain censor،p systems. Yet, administrators continue undeterred in pursuing these policies with the support of their faculty.

Oregon has long been known for radical viewpoints in academia. I previously criticized the sc،ol policy to monitor student s،ch on social media and off campus as part of its s،ch regulations.

The sc،ol previously gave special recognition to University of California (Santa Barbara) Professor Mireille Miller-Young\xa0w،\xa0criminally ،aulted pro-life advocates on the campus of the University of California at Santa Barbara.\xa0 At Oregon, she was ،nored as a featured speaker at the University of Oregon’s\xa0\xa0Department of Women’s, Gender and Sexuality Studies.\xa0 Part of its “black feminist speaker series,” Miller-Young’s work was highlighted by the College of Arts and Sciences and the Department of English to s،w “the radical ،ential of black feminism in the work that we do on campus and in our everyday lives.”

It is unlikely that the legislature will object to this expensive fight to preserve the right to censor s،ch. The state itself has moved aggressively a،nst free s،ch rights of doctors and others in areas like abortion. However, the people of Oregon s،uld consider the use of their tax dollars to seek to limit the “indispensable right” of free s،ch and to give figures like stabin such discretion over what s،ch to allow on campus.