Ninth Circuit reinstates bid for injunction in University of Oregon Twitter spat

(CN) — The Ninth Circuit Court of Appeals on Friday reinstated an Portland State University professor's bid for a preliminary injunction against the University of Oregon after he was temporarily blocked from one of the latter university's accounts on X (formerly Twitter).

In a split decision, the Ninth Circuit panel found that Bruce Gilley's demand for an injunction wasn't moot even though the University of Oregon has unblocked him from @UOEquity, the university's X account for its Division of Equity and Inclusion.

"Although the University of Oregon no longer blocks Gilley on Twitter, the request for prospective relief is not moot," the majority said in the unsigned decision. "Mootness turns on whether the voluntary cessation exception applies because 'a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.'"

The two circuit judges, Ryan Nelson and Daniel Collins, both Donald Trump appointees, said that the university hadn't met its heavy burden to show that the challenged conduct wouldn't occur again.

The case stems from a 2022 retweet by Gilley, a self-described critic of diversity, equity and inclusion policies at universities, of a "racism interrupter" post by Tova Stabin on @UOEquity. At the time, Stabin worked as communications manager at the University of Oregon’s Division of Equity and Inclusion.

Stabin's post said: “It sounds like you just said [blank]. Is that what you meant?” In his retweet, Gilley filled in the blank with “all men are created equal.”

Stabin then immediately blocked Gilley from @UOEquity.

Gilley was blocked from the X account for two months. During that time, Gilley tried to find out what if any university policy justified the block.

The university denied the existence of any such policy. Gilley then sued Stabin in her personal and official capacities for violating his First Amendment rights.

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 said has had nothing to do with why it has blocked X users before.

In response to Gilley's lawsuit, the university unblocked him and filed a motion to dismiss the complaint as moot. A federal judge last year denied that request as well as Gilley's request for a preliminary injunction because, the judge said, he hadn't shown that the university was likely to block him again.

Senior Circuit Judge William Fletcher, a Bill Clinton appointee, dissented from his two colleagues, saying that when the university found out that Stabin had blocked Gilley on her own accord, it immediately unblocked him and rejected Stabin’s actions as inconsistent with its prohibition on viewpoint discrimination.

In a statement, Del Kolde, an attorney with the Institute for Free Speech who represents Gilley, called the ruling "an important legal win in the developing area of social-media blocking by state actors."

"We look forward to continuing this legal battle," Kolde stated. "By protecting Bruce Gilley's right to speak, we are protecting everyone's right to speak."

Attorneys for the University of Oregon didn't immediately respond to a request for comment on the ruling.

Follow @edpettersson

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit