Maxine Bernstein reports in today's Oregonian that the University of Oregon banned Bruce Gilley, a Portland State University professor, from replying to a UO Twitter account for 60 days because of a comment that Professor Gilley made in reply to that account, which belongs to UO's Division of Equity and Inclusion. He was one of three Twitter users that the Division's communications manager (now retired) blocked.
Professor Gilley sued. He argues that UP violated his right to free speech and is asking for nominal damages of $17.91 (because the states ratified the First Amendment in 1791) and an acknowledgment that UO violated his First Amendment right of free speech. (The university unblocked his account the day after he filed suit.) A federal court heard argument on Professor Gilley's suit on Friday.
As the saying goes, politics makes strange bedfellows. UO turned to rising liberal icon Misha Isaak for its defense. As reported by Ms. Bernstein, Mr. Isaak's defense of UO is mainly that the court should dismiss the suit because persons higher up in the university administration unblocked Professor Gilley when they learned that the Division had shut him out from commenting, The administration has also reminded the Division of Equity and Inclusion that it cannot block speech based on the user's viewpoint. I interpret Mr. Isaak's defense of UO as being mainly that because UO blocked his speech for only a short period, and because the UO official who blocked Professor Gilley didn't know about the First Amendment, the University didn't violate his constitutional rights in a big enough way to be worth the court's time. Mr. Isaak also suggested that Professor Gilley "relished being canceled because it gives him a platform," a strange way to defend an apparent First Amendment violation. But let's go back a few years to a similar story, still fresh in the minds of constitutional lawyers.
In 2017 President Trump blocked Twitter users with whom he disagreed from replying to tweets on his personal account. Several of the blocked users sued, backed by the Knight First Amendment Institute at Columbia University. They argued that the president conducted official business on his Twitter account and that it was effectively a government-sponsored platform from which he could not bar users based on the content of their comments. Those plaintiffs attracted support from an institute at Georgetown University which filed a brief on behalf of an all-star cast of professors of constitutional law, including Erwin Chemerinsky, Geoffrey Stone, and Laurence Tribe.
In 2019 the federal court for the Second Circuit ruled unanimously in favor of the Twitter users and against President Trump, and minced no words: "Accordingly, we hold that the President violated the First Amendment when he used [Twitter's] blocking function to exclude the Individual Plaintiffs because of their protected free speech." Knight First Amendment Institute v. Trump, 928 F3d 226 (2019). You can read the entire opinion here.
It's embarrassing for a public university with a law school to be caught out taking a page from Donald Trump's playbook and suppressing protected free speech because it doesn't like the speaker's message. It's more embarrassing, or should be, when the part of the university doing the suppressing is the division that's devoted to providing room for all voices to be heard. At the very least, the president of the university should take a few minutes to write a note of apology and acknowledge to Professor Gilley and the court that its Division of Equity and Inclusion messed up bigly.