CHICAGO (CN) — The Seventh Circuit considered the extent of social media free speech rights on Thursday morning in a case pitting the University of Wisconsin–Madison against one of its own alumni.
The alumna, Madeline Krasno, once worked in the university's primate research lab but came to oppose animal testing based on the reportedly inhumane conditions the creatures in the lab suffer. She took to criticizing the UW-Madison's animal testing practices on its social media pages, like Facebook and Instagram, and filed suit in federal court in February 2021 after the university began censoring her and others' less-than-flattering comments.
"The university created its social media pages in order to communicate with the public about the university, yet when one of its alumni did just that, criticizing the university for its animal testing program, the university responded by tracking her offsite private activity, and censoring her topical commentary," Krasno's attorney Christopher Berry of the Animal Legal Defense Fund argued Thursday.
He claimed the university accomplished its goal by "manually hiding comments, temporarily restricting her [Instagram] account, and employing a keyword filter intended to automatically remove all comments... mentioning words like 'animal testing' or 'torture.'"
The attorney went on to argue, as Krasno did in her appellate brief, that UW-Madison's social media pages are a public forum open to all users, and therefore Krasno's comments were protected under the First Amendment.
"Looking into the purpose of the university having these pages. It is to foster communication between the public and the university," Berry said.
But the university insisted the comments sections of its social media posts, where Krasno was most active, are a "nonpublic forum" where it has the right to moderate content for relevancy, so long as that moderation is viewpoint-neutral.
The university argued in its appellate brief that Krasno had tried to agitate against animal testing on posts that had nothing to do with the issue, and that to strip the university of its comment moderation powers would "convert its social media pages into Krasno’s own personal soapbox."
"She wants to comment about her views on animal rights advocacy," Wisconsin Assistant Attorney General Steven Kilpatrick argued on UW-Madison's behalf Thursday. "And she wants to do that to a post, for example, that the university makes congratulating the women's volleyball team on its national championship."
The West Wisconsin District Court agreed with the university last November. Magistrate Judge Stephen Crocker, in an opinion granting summary judgment to the UW-Madison administrators Krasno sued, wrote that "the evidence establishes that [the] university sufficiently attempts to moderate and sufficiently does moderate the comment threads to qualify its Instagram and Facebook pages as nonpublic fora."
The appellate panel hearing the arguments consisted of the Ronald Reagan-appointed U.S. Circuit Judges Frank Easterbrook and Ilana Rovner and Joe Biden appointee U.S. Circuit Judge Doris Pryor. They had criticism for both lines of argument.
Judge Easterbrook repeatedly argued that there may be no legal difference between comments on UW-Madison's social media pages and letters to the editor in its alumni magazine, where the university also exercises a great degree of editorial control.
"The letters to the editor... are the speech of the letter writers. But the university as publisher, as editor, chooses what will be there," Easterbrook said.
When Berry tried to rebut that, saying social media comment threads are a wholly different beast from letters to the editor, given social media's interactive nature and lack of spatial bounds, Easterbrook called the distinction irrelevant to the more conceptual legal question.
On the other side of the debate, Judge Rovner openly doubted Kilpatrick's claim that the university had only sparingly used its keyword filter — which Krasno had to work around, in order to make her animal rights criticism — and would turn it off for any social media discussion focusing on animal rights.
"I am skeptical about this claim that the university would turn off the filters if comments about animal testing ever became relevant," she said, proposing a hypothetical situation in which Krasno critiqued the university for not using vegan materials on a post announcing new leather Nike shoes for its basketball team.
Kilpatrick said in a gray situation like that, the university's social media management team would defer to the legal department and "likely" allow the comment to remain out of an abundance of caution.
More broadly, the appellate panel wondered what they should even do with this case, given that the Supreme Court is poised to examine a case dealing with similar issues, O’Connor-Ratcliff v. Garnier, this October.
Ratcliff deals with "whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account," as SCOTUSblog puts it, and Thursday's panel wondered if Krasno's case should be put on hold until after the high court has had a chance to examine it.
"We've got a field where the Supreme Court is active, and I'm trying to figure out what our role is as an inferior court, given that this is on the Supreme Court's docket," Easterbrook said.
While Kilpatrick said the university would be fine waiting for a Supreme Court decision in Ratcliff, Berry argued that case would be immaterial to Krasno's suit, given its focus on "expressive activity." He also said Krasno's case is "of public importance," as it deals with digital forums whose public nature — owned by private corporations but engaged with by public institutions and figures — is up for debate.
The judges took the attorneys' arguments under advisement but did not say when they would issue a ruling.
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