We reported previously about a Wisconsin federal district court case that determined that a University social media page was a non-public forum, and ruled against a former student who challenged the University's deletion of her comments from the University's accounts. That 2022 ruling had been appealed to the Seventh Circuit Court of Appeals, which just recently issued an opinion reversing the district court and finding that the University's social media page was a limited public forum, and the University's actions violated the former student's free speech rights. Krasno v. Mnookin (7th Cir. August 1, 2025).
The University of Wisconsin-Madison 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 the University finds to be "off-topic," and using a "keyword filter" that hides comments that include words or phrases the University includes in the filter, such as "lab," "animal testing," "kill animals," and others. The University also turns off comments on certain posts to prevent users from commenting. A former student who worked in the primate testing center of the University sued the University after she claims her comments were automatically hidden or deleted by the University in violation of her First Amendment rights. In 2022, a federal district court ruled that the University's social media pages were "nonpublic forums" because the University had, by policy or practice, restricted comments by banning "off topic" comments, so the University's actions did not violate the former student's free speech rights.
The former student appealed, and the Seventh Circuit Court of Appeals rejected the district court's ruling that the University's social media pages were non-public forums. Instead, the Seventh Circuit ruled in favor of the former student on several grounds, holding that the interactive spaces on the University's social media pages (i.e., the comment section) were limited public forums and the University's "off topic" comment rule as applied to the former student was unconstitutional.
The Seventh Circuit determined that the interactive space on the University's social media pages (i.e., the space where private users can post comments) was not government speech nor a traditional public forum, nor a nonpublic forum. Instead, the Seventh Circuit held that the interactive space on the University's social media pages was a "limited public forum" because it was opened up for the purpose of allowing the discussion of certain topics. The Seventh Circuit likened the University's social media page to the City of Boston's flag pole which the U.S. Supreme Court had found to be a public forum because Boston had opened its pole up to private groups to display their flags. Here, the Seventh Circuit found that the University opened its comment section on its social media pages to speech by private users.
In a limited public forum, governments can establish restrictions, but those restrictions must be reasonable and viewpoint neutral. The Seventh Circuit applied that test to the University's "off topic" comment rule and found it to be unconstitutional because the University's use of a filtering program to hide comments that included certain words and phrases relating to animal testing was unreasonable and constituted viewpoint discrimination against the former student's anti-animal testing and pro-animal rights viewpoint. The Seventh Circuit also found the University's "off topic" social media statement to be too open-ended, inflexible, and vague, and the University's enforcement to be too discretionary to survive a First Amendment analysis. As a result, the Seventh Circuit reversed the district court's ruling in favor of the University, and ordered the district court to enter judgment in favor of the former student on her First Amendment claims.
There was a dissenting opinion that would have found the University's social media pages to be a nonpublic forum, similar to the National Portrait Gallery or the letters section of the University's "On Wisconsin" magazine.
The Seventh Circuit's ruling that the University's social media pages are public forums is consistent with other federal courts of appeals that have analyzed similar challenges. We noted in our post about the district court ruling that we thought the district court's finding that the University's social media accounts were nonpublic forums was an outlier, and it is not surprising that the Seventh Circuit ruling last week was more inline with those other rulings. Governments who enforce an "off topic" comment rule may want to consult with their legal counsel to advise them whether this ruling might have an impact on their own social media moderation activities.
