From Gilley vs. Stabindecided today by the Ninth Circuit, in an opinion by Judges Ryan Nelson and Daniel Collins:
Using the University’s @UOEquity Twitter account, Tova Stabin, then communications manager for the University’s Division of Equity and Inclusion, tweeted a message purporting to show ways to respond to racist comments. We follow Stabin’s convention of not capitalizing his name. Gilley quote tweeted the “racism breaker” tweet saying that “all men are created equal.” In response, Stabin blocked him from the University’s @UOEquity account. His block lasted two months. During that time, Gilley attempted to discover what policies governed his block. The University denied the existence of such a policy.
Gilley sued Stabin… for violating his First Amendment rights… In response, the University unblocked him….
The court concluded that the challenge was not moot (with Justice William Fletcher dissenting):
The dispute hinges on the applicability of the voluntary termination exception because “a defendant cannot automatically raise a case simply by ending his or her wrongful conduct once sued.” Since one party asserts that “it is not reasonably foreseeable that the complained of conduct will be repeated,” the University bears the “heavy” burden of making such a showing…. [T]he University’s decision to unfreeze Gilley was not due to a statutory or regulatory change…. Given the lack of formality and relative novelty of the policy, the ease with which the policy can be reversed, and the lack of procedural safeguards to protect against arbitrary action, the University has not carried the heavy burden of demonstrating that it could not reasonably be foreseen that the conduct is repeated… .
We defer to the district court to reconsider whether Gilley has standing to seek pre-execution facial relief under the appropriate standard we addressed above, i.e., that standing is assessed at the time of the complaint. In deciding the issue at first instance, the district court should keep in mind that the Supreme Court has permitted “pre-execution review in circumstances that make the threatened execution sufficiently imminent.” “[W]When the threatened law enforcement effort challenges First Amendment rights, the investigation is reversed dramatically toward establishing standing.” And “evidence of previous law enforcement cases” – such as that experienced by Gilley when he was barred from viewing a government account for months – “is important in an ongoing investigation.”
We affirm the district court’s finding that Gilley raised serious doubts about the merit of some of his claims. We reject, however, his conclusion that Gilley did not adequately allege the risk of irreparable harm. Again, he had been barred for two months when he first sought injunctive relief. During this period he tried to obtain information about the policy under which he was blocked without having to go to court. The University denied there was such a policy throughout the period Gilley was stranded.
The University subsequently disclosed to Gilley its internal social media policy that contained policies for blocking users and said that policy was in effect at the time of Gilley’s blocking. By arguing before us that a policy existed, but that it violated it, the University demonstrates that it does not have sufficient policies in place to prevent such deviations from policy by a dishonest employee. These facts easily demonstrate irreparable damage. When, as in this case, constitutional harm is “threatened and occurs at the time of defendants’ motion,” there is a risk of irreparable harm. Given the irreparable harm that Gilley actually faced in the months leading up to the filing of this lawsuit, he carried his burden of proving “Some recognizable danger” of a recurring violation beyond what is necessary to avoid questionability.
Justice William Fletcher dissented:
When the University learned that Gilley had been blocked, it immediately unblocked him and rejected Stabin’s decision to block him as inconsistent with the prohibition on viewpoint discrimination. Gilley’s request for relief is therefore moot.
Stabin blocked Gilley on one occasion. You acted alone and without the knowledge or approval of any other University employee. The University released Gilley the day it learned of her lawsuit. Stabin retired the same day.
A few days later, the University sent Gilley a letter saying it “does not intend to block [Gilley] or anyone else in the future based on the exercise of protected speech.” The University also reiterated to its employees that, according to its social media guidelines, “[w]We do not delete comments or block users because they are critical or because we disagree with the sentiment or point of view.” It instructed its employees to “immediately unblock any users you have blocked unless you can demonstrate convincing that they violated the guidelines.” There is no evidence that the University will block Gilley again or change the guidelines’ ban on viewpoint discrimination.
The majority believes that the University has not shouldered the burden of demonstrating questionability because its guidelines “lack… formality”; they are relatively new; and lack “procedural safeguards”. But it is undisputed that the facts demonstrate that the guidelines are written; that the guidelines have existed since at least 2019; and that employees are subject to discipline if they do not comply with the guidelines. The record also shows that Stabin’s decision to block Gilley was an anomaly. Over the past decade there have been 2,558 retweets and direct replies to the @UOEquity account. Only three users (including Gilley) were blocked during that period.
The University released Gilley immediately after learning of the stabbing. By unblocking Gilley, the University “did not effect a policy change in the typical sense” because it made no changes to the guidelines. Instead, reversing Stabin’s action, the University reiterated that the guidelines prohibit viewpoint discrimination. When, as in this case, a defendant government “declares that it will be more vigilant in following an existing policy” in a non-discriminatory manner, “[o]Our confidence in the government’s voluntary termination… is at its peak.”
In this case there was a clear voluntary cessation, with virtually no likelihood of resumption. Gilley’s request for an injunction is therefore moot….
Del Kolde and Stephanie Brown (Free Speech Institute) and D. Angus Lee (Angus Lee Law Firm, PLLC) represent Gilley.