From Gilley v. StabinJudge Marco Hernández (D. Ore.) ruled yesterday:
Accused Tova Stabin [who] spells her name in all lowercase letters was previously Communications Manager for the Department of Equity and Inclusion … at the University of Oregon ….
On or about June 14, 2022, Defendant Stabin, in her capacity as Communications Manager, posted a “Racism Switch” on the Department’s Twitter page, @UOEquity. The tweet read “You can end racism” and the query read: “Sounds like you just said_________. Is that really what you meant?”
Prosecutor 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.” The Plaintiff is critical of the principles of Diversity, Equality and Inclusion (“DEI”) and intended to promote a colorblind viewpoint with his tweet. The prosecutor tagged @uoregon and @UOEquity in his retweet. Also on June 14, 2022, Defendant stabin blocked Plaintiff from the @UOEquity account. After being blocked, the claimant could no longer view, reply or retweet any @UOEquity posts….
Gilley sued, and the court allowed the suit to proceed; the court concluded that the comments on the @UOEquity account were a “limited public forum,” where any restrictions imposed by the government had to be neutral and reasonable, and “Plaintiff raises serious questions about the merits of his claim that Defendant Stabin violated his First Amendment rights amendment when she blocked him on Twitter.”
Defendant Stabin testified that she blocked Plaintiff because she believed his post was off-topic and made no sense in the context of the Racism Interruptor query, and was concerned that he would disrupt the @UOEquity Twitter page by attracting more off-topic posts to other users. . She testified that she was aware of social media guidelines when she blocked the plaintiff. She testified that she briefly looked at the plaintiff’s Twitter page retweeting Racism Interruptor and then blocked it without further investigation and without consulting anyone else. She admitted to blocking the accuser before he attracted disturbing users to the site. Accused Stabin testified that she does not agree with the opinion “all men are created equal” and that she actually agrees with it, although she would prefer to use the gender-neutral term “people”.
There is some strength in the testimony of the accused Stabin. She testified that the purpose of the notice was to give people tools to use to respond to discriminatory comments they might hear in their daily lives. The text that announced the inquiry when it was published read “You can end racism”, which supports her testimony. Inserting the accuser’s response “all men are created equal” into the blank space of the Racism Interruptor prompt yields the following result: “It sounded like you just said ‘all men are created equal.’ Did you really mean that?” The “all men are created equal” phase could reasonably be said to seem inconsistent with the purpose of the notice and off topic.
A limited public forum may impose subject matter limitations. At least one district court has ruled that a rule limiting off-topic posts on a public university’s social media account was reasonable and viewpoint neutral. Krasno v. Mnookin (WD Wis. 2022). Without the benefit of a full instruction on the reasonableness of the off-topic provision, the Court at this time believes that a jury could reasonably conclude that defendant Stabin did not violate plaintiff’s First Amendment rights.
There is also evidence to support the conclusion that the defendant stabin blocked the plaintiff because of his position. In an email to another University employee, Defendant Stabin stated that Plaintiff “wasn’t just obnoxious, he was bringing some of the most obnoxious people to the site.” In another internal email, Defendant Stabin stated that Plaintiff “was saying something about white male oppression, if I recall.” Defendant Stabin also wrote, “Really, they’re just there to trip you up and cause trouble.”
At the hearing, the defendant Stabin testified that she thought the plaintiff was disgusting because he would bring posts that did not fit the topic and would take the page away from its purpose. She testified that she wrote the second e-mail quickly and that she misremembered the event. She testified that “they” in the second email referred to people who wanted to disrupt the Twitter account. The evidence is sufficient to raise serious questions about the merits of Plaintiff’s claim that Defendant Stabin blocked him because of his expression of opinion….
But the court refused to issue a temporary injunction against future blocking:
Furthermore, the circumstances show that the blocking of the plaintiff by the defendant Stabin was an anomaly. Blocking is rare on the @UOEquity Twitter account. Since 2017, there have been a total of 2,558 replies and retweets from other users on the @UOEquity Twitter account. Only three users have been blocked since creating an account, and currently no users are blocked. Accused Stabin testified that she acted alone when blocking the plaintiff and that she did not consult with other University staff after blocking him. There is no evidence to the contrary.
Accused Stabin has since retired from the University, and her successor was still unknown on the day of the hearing on this request. In this context, it would be speculative to conclude that this unknown successor is likely to block the plaintiff on Twitter again. Plaintiff has not met his burden of showing that he is likely to be blocked in the future….