“All Men Are Created Equal”: University Of Oregon Loses Key Motion In Free-Speech Case

Authored by Jonathan Turley,

We previously discussed the free speech lawsuit of Portland State University Professor Bruce Gilley who 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 injunction holding that there was a substantial likelihood that he would prevail on the merits against the University of Oregon.

Portland State University Professor Bruce Gilley was 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” who the court notes “spells her name with all lowercase letters.”).

Stabin has now left the school.

In Gilley v. 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 staff 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 asserts 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, who 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 assuming 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 screenshot of everyone I’ve ever blocked. I hardly do it (and barely know how 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 who brought it. Not surprising. He was commenting on one of the “interrupt racism” posts, as I recall talking something 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 home 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 injunction.

In his decision, Judge Hernández zeroed in on the guidelines allowing for the censorship of offensive or hateful speech:

“Plaintiff has shown that the two provisions of the social media guidelines he challenges create a risk of censoring speech that is protected by the First Amendment. As Plaintiff points out, speech that is “hateful,” “racist,” or “otherwise offensive” is protected by the Constitution. 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 forum, meaning that any restrictions on speech 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” speech create a risk of viewpoint discrimination because “[w]hat is offensive or hateful is often in the eye of the beholder.” 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 Constitution. Deleting or hiding the post for that reason would also violate the Constitution.”

That is why this decision could have a lasting impact for higher education. The Oregon language is not dissimilar from many schools limiting campus speech under vague guidelines.

Notably, we have discussed how these schools have been losing in federal courts in their effort to maintain censorship 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 school policy to monitor student speech on social media and off campus as part of its speech regulations.

The school previously gave special recognition to University of California (Santa Barbara) Professor Mireille Miller-Young who criminally assaulted pro-life advocates on the campus of the University of California at Santa Barbara.  At Oregon, she was honored as a featured speaker at the University of Oregon’s  Department of Women’s, Gender and Sexuality Studies.  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 show “the radical potential 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 speech. The state itself has moved aggressively against free speech rights of doctors and others in areas like abortion. However, the people of Oregon should consider the use of their tax dollars to seek to limit the “indispensable right” of free speech and to give figures like stabin such discretion over what speech to allow on campus.