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Tuesday, December 20, 2022

Wisconsin Court Finds University Social Media to be Nonpublic Forum

We wrote last week about an Illinois federal district court case involving government use of social media. In that case, the district court allowed a First Amendment challenge against a city alderman to proceed, finding that the interactive space on the alderman's social media page was a public forum and his deleting and blocking activities may have violated users free speech rights. In that case, the court acknowledged that the Seventh Circuit Court of Appeals (the federal appeals court covering Illinois as well as certain other nearby states) had not yet weighed in on whether government social media was a public forum but found cases decided by other courts of appeal that hadd made that determination to be persuasive.

In today's post, we write about a Wisconsin federal district court case also involving government social media activities. Krasno v. Mnookin. This case involves a First Amendment challenge to social media actions by the University of Wisconsin-Madison. The University operates Facebook and Instagram pages where it communicates with students, faculty, and the general public. The University  moderates its social media accounts in several ways, including hiding or deleting comments that the University deems "off-topic" and employing a "keyword filter" that hides comments that include words or phrases that the University includes in the filter. The University also turns off comments on certain posts to prevent users from commenting.

A former student who had worked in the primate testing center of the University frequently commented on University posts to express her views opposing animal testing. The University hid or deleted some of her posts and left others. The University had also imposed an account restriction on the former student's Instagram account meaning that her posts on the University's page would be automatically hidden unless the University "unhid" them. Many of her posts were hidden through the keyword filter because they included filtered words such as "lab," "animal testing," "kill animals," and dozens of other words and phrases that were included in the filter. 

In 2021, the former student sued the Univerrsity, claiming that the University's restrictions on her Instagram Account and deleting her posts from Facebook constituted unlawful censorship in violation of her First Amendment rights. She also claimed that the University's use of the "keyword filter" was "viewpoint discrimination" in violation of her free speech rights. 

While the Wisconsin federal court acknowledged that a number of courts had determined that the interactive area of a government social media site was a designated public forum, the court distinguished these cases and held that the University operated a "nonpublic forum" on its social media pages because it had, by policy or practice, restricted comments on its pages to "on topic" discussions only. The court determined that the University's ban on "off topic" comments was a reasonable and viewpoint neutral rule that furthered the University's interest in preserving the interactive comment threads to University-related topics. The court also found that users have alternative ways to express their views. In sum, the court rejected the former student's First Amendment challenge on all grounds.

While this is an interesting case, and certainly favorable to governments who might benefit from adopting a similar "off topic" rule for their own social media sites, it is important to note that this case appears to be an outlier - the Wisconsin court even acknowledges that there are a number of cases that have held that government social media is a designated public forum. This ruling has also been appealed so it will be interesting to see what the Seventh Circuit Court of Appeals does since that court of appeals has yet to weigh in on government social media in the context of a First Amendment challenge. We will keep you posted as this appeal moves forward but governments might want to take a cautious approach in relying on this particular ruling, at least until it goes through the court of appeals. 


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