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Challenge to University of Oregon social media policies hits Ninth Circuit

Wednesday’s appeal from a Portland State professor seeks to prevent the University of Oregon’s equity and inclusion X page from blocking him and other critics.

(CN) — The issue of whether someone can sue a university for blocking them on social media reached the Ninth Circuit on Wednesday in an appeal seeking to overturn a lower court’s denial of a preliminary injunction against the University of Oregon.

In August 2022, Portland State University professor Bruce Gilley sued the University of Oregon's former communications manager, Tova Stabin, for blocking him on X, the social media platform formerly known as Twitter. Gilley sued to address a situation that began when Oregon’s Division of Equity and Inclusion’s account posted a “racism interrupter prompt” to address discriminatory remarks while facilitating constructive conversations.

The prompt said: “It sounds like you just said [blank]. Is that what you meant?”

Gilley retweeted the post, stating, “All men are created equal” as his response to the blank entry. He later retweeted a second entry: “The self-style anti-racists are the biggest racists in the room.”

After realizing the University of Oregon’s X page had blocked him, Gilley filed a public records request for the policy utilized by the university to block users. The school replied, stating there was no written policy and that staff members administer the X account autonomously, using professional judgment when necessary.

The university also informed Gilley that two other accounts were blocked, both of which expressed politically conservative viewpoints.

The university kept Gilley blocked until he filed his initial complaint, a move that prompted Stabin to retire earlier than she had planned, according to Gilley’s attorney, Endel Kolde. The school also immediately paid Gilley’s requested $17.91 in nominal damages, which his counsel rejected in refusing to dismiss the suit.

What unfolded set up a series of arguments over whether the university’s policies enable viewpoint discrimination and unconstitutional restrictions of free speech.

According to court records and arguments heard on appeal, Gilley discovered that Stabin sent internal emails in response to his inquiries indicating that she believed his post to be “obnoxious” and “about the oppression of white men.” He additionally found out that the university did have policies about when and why an account manager could block X users or delete comments — a finding the university maintains has had nothing to do with why it has blocked X users before.

The guidelines instruct the school’s social media moderators to let people have their say and to avoid deleting comments or blocking users in response to criticism or because they disagree with a viewpoint. Exceptions exist, though, especially for users who post “hateful or racist comments” or comments “out of context, off-topic or not relevant to the topic at hand.”

In December 2022, Chief U.S. District Judge Marco Hernandez held a hearing where Stabin testified that she had written her emails quickly and without much thought. She also said she blocked Gilley because she was confused about his reply and thought it was off-topic.

Nonetheless, Hernandez denied Gilley a preliminary injunction, which sought to enjoin the university from blocking his interactions with its Division of Equity and Inclusion account and challenge the constitutionality of its social media guidelines.

According to Hernandez’s order, he denied the preliminary injunction because Gilley couldn’t prove that the school’s X account was likely to block him again and that it represents a limited public forum due to the existence of social media guidelines. Hernandez also doubted Gilley’s testimony that he was self-censoring out of fear of consequences, though he did agree that the university’s policies may have infringed his constitutional rights.

On appeal, Kolde primarily argued how the university’s guideline on “hateful” speech represents viewpoint discrimination because it is subjective and undefined, thus representing a threat that the university may block Gilley again.

“That can't be true,” said U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee. “That gives every person inherent standing to come into court just because they don't like the way the guidelines are written. That just can't be true.”

But to this concern, Kolde reminded the judges that Gilley is a long-time critic of diversity and inclusion policies in universities. He also argued that even if the school’s X page was a limited public forum, its decision to block someone would need to be reasonable and viewpoint-neutral.

“Anybody looking at those guidelines, particularly a dissenter or critic of the prevailing ideology at the University of Oregon, would have pause to worry about being blocked in the future under those guidelines,” Kolde later said.

When it was time for university attorney Misha Isaak to argue, the judges asked him to explain whether Gilley still had standing.

According to Issak, Gilley’s request for an injunction is moot because the university unblocked him as soon as it found out what led to the blocking — a breach of protocol by Stabin. He also argued there is no evidence or argument from Gilley that the school has ever implemented its policy on hateful speech against anyone.

Kolde said he found this claim astounding, stating that it has been an argument the whole time.

“We believe Tova blocked him because she felt he was offensive, and she blocked him under the guidelines,” Kolde said. “They dispute that, but her emails show she found him obnoxious. She referred to his race, she referred to his biological sex and said he was there just to trip her up.”

Senior U.S. Circuit Judge William Fletcher reinforced this point, noting Stabin had used the expression “ugh” in her email.

“No, she doesn't like the guy. But there's a problem here for you, and that is to say, the university immediately repudiates what she did,” the Bill Clinton appointee said.

Overall, the hour-long appeal provided hot takes from everyone involved, including Trump-appointed U.S. Circuit Judge Daniel Collins, who rounded out the panel. After noting that the school is yet to replace Stabin in her official capacity, the panel adjourned without indicating how they would rule.

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Categories / Appeals, Civil Rights, Education

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