Racism and Mindreading in the Academy

​We begin this piece with a trigger warning. You might want to shut the door and draw the blinds. Steel yourself to read something distressing: Bruce Gilley, a Portland State University professor, was blocked from a Twitter account owned by his employer because he – we warned you – posted: “All men are created equal.”
 
This was his response to an “interrupt racism” thread of the university’s Division of Equity and Inclusion in 2022. Gilley sued over the university’s decision to remove him from its twitter thread. The university lost a motion to dismiss. On Tuesday, federal Judge Marco Hernandez slapped the university with a temporary injunction from “hiding, muting, or deleting posts by @Bruce Gilley on the @UOEquity X account.” The judge’s action is based on a substantial likelihood that Gilley would prevail on the merits.
 
Gilley was deposted because the account’s university administrators found his messages, somehow, constituted racism. Gilley is, to be fair, provocative in his lashing critiques of post-colonial ideology and DEI imperatives. (By the way, universities once delighted in academics who provoked debate, and “provocative” was considered a compliment.)
 
The university clearly violated its own social media guidelines for employees, the first of which is:
 
“As a public university that values freedom of speech and a robust exchange of ideas, you should err on the side of letting people have their say when commenting on social media properties. When appropriate, engage with commenters and repliers, even if it’s just to like or reply to their comments or to acknowledge their criticism. Don’t delete comments or block users because they are critical or because you disagree with their sentiment or viewpoint.”
 
The university’s social media guidelines do allow the removal of comments if they are “violent, obscene, profane, hateful, or racist or otherwise use offensive or inappropriate language.”
 
Gilley successfully argued that the First Amendment would protect even actual hateful and racist speech. Judge Hernandez issued the temporary injunction holding that the university cannot depost Gilley’s messages because they are found to be “hateful,” “racist,” “otherwise offensive,” or “out of context.” The judge’s use of quotes is clearly aimed at the slippery standards the university’s DEI office applied to Gilley’s views – and this injunction only applies to Gilley. It would be a mistake to extrapolate from this that even a public university, which must show maximal respect for the First Amendment, is prevented from issuing a viewpoint neutral policy of excluding racial slurs.
 
The root issue here is not just about the law. It is an intellectual one, the inability of so many today to use common sense to distinguish between messages that are clearly racist and those that can only be construed as racist by inference or mind-reading. There’s no judicial fix for that one, only better education.