Government entities’ exclusion of ‘off-topic’ comments on social media posts may be constitutional

Of Krasno vs. Mnookindecided yesterday by Magistrate Judge Stephen Crocker (WD Wisc.):

Although there is no requirement of close fitting in a non-public forum, the
government restrictions must always be neutral from the point of view and must be “reasonable in light of the objective pursued by the forum”. In order to show that a restriction on free speech is “reasonable”, the government must demonstrate that its restriction: (1) serves a “permitted purpose”; and (2) contains “objective and achievable standards” that are “capable of reasoned application”.

{[C]Bears often describe a forum opened by the government that is limited to certain speakers or topics as a “limited public forum.” Although most of these cases use the term interchangeably with “non-public”, which means that the regulations in both cases are subject to a lower level of scrutiny, the term “limited public forum” has sometimes been used. to describe a subcategory of “designated public” forums subject to the strict scrutiny test. In this case, when the University argues that the comment threads of its social media posts are “limited public” forums, I understand this to be a forum governed by the requirements of reasonableness and of viewpoint neutrality applied to “non-public” forums. To avoid confusion, I will use the term “non-public” in this notice to refer to such a forum.}

[T]The University has a legitimate and viewpoint-neutral interest in limiting comment threads to discussing or reacting to the specific topic of the University’s post. The University uses its Facebook page and Instagram account as channels to communicate official University announcements, events and policies to the public, including its student body, and as a means of promoting the UW-Madison “brand”. With respect to interactive comment threads, the University monitors what other social media users say in response to University posts, to see how its content is generally received, and to see what reactions its posts generate. The University also wants to see if anyone has any questions, and they can engage in their own talk in the comment threads to answer them. Allowing off-topic comments to proliferate makes it harder for the University to engage with its followers and see what comments it might want to respond to.

It is also legitimate for the University to consider the distraction that off-topic comments may present to other users seeking to engage and discuss the subject of the University post. It is reasonable for the University to conclude that these other users may be less inclined to leave a comment, ask a question or engage in a discussion on the subject with other users if the University’s pages are full of off-topic comments. “[F]There’s nothing unreasonable about the University preferring interactive comment threads to have the look and feel of a lunchtime discussion rather than an open debate. air Library Mall at the foot of State Street.

Krasno argues that this court should conclude that the University’s goal of preserving its comment threads for discussion of the topic is illegitimate, because the University has not presented evidence from a time when large numbers off-topic comments actually prevented him from seeing a comment he replied to, or with evidence that other users complained or stopped commenting due to a proliferation of such comments. Krasno further points out that, unlike other public forums such as board meetings, where irrelevant comments can take up the board’s limited time to conduct business, Facebook and Instagram are designed to host dozens or even hundreds of comments in a user’s posts. In light of this, Krasno argues, off-topic comments are inherently no more disruptive to the purpose of the forum than large amounts of on-topic comments, which the University unquestionably condones.

I agree with Krasno that the University’s stated interests in limiting its forums to speech on the subject aren’t strong enough to be unassailable, but in a non-public forum they don’t have to be . “Unlike a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the operation of the non-public forum is not required.” Thus, whether or not large volumes of discourse on the subject can be disruptive is beside the point; the question is whether it is unreasonable for the University to prohibit off-topic speeches. Since the University has a legitimate interest in hosting a moderated forum for discussion of the topics it posts on, off-topic comments are, by definition, more disruptive than on-topic comments….

Having concluded that the University may hide or remove off-topic comments, the remaining question to be answered is whether the University’s off-topic rule, which is arguably neutral on its face, is “capable of reasoned application”. To meet this test, “the state must be able to articulate a reasonable basis for distinguishing what can enter from what must stay out.” Minnesota Voters Alliance vs. Mansky. This does not require the elimination of all discretion, simply that all discretion “must be guided by objective and achievable standards”. In Mansky, for example, the Court found that Minnesota’s law prohibiting anyone from wearing a badge, button or other political insignia at a polling place was too vague to pass this test. Although the Court found that Minnesota had a legitimate interest in maintaining a polling place free from partisan divisiveness, Minnesota had offered no interpretation of the term expansive capable of reasoned application….

Although the Court recognized that election judges checking individuals at the entrance to polling stations must have a certain degree of discretion and that “[p]Perfect clarity and specific guidance “was unnecessary, the issues with the Minnesota restriction went “beyond close calls on borderline or fanciful cases” and were therefore unreasonable….

[W]whether a statement is “off” or “on”, the subject is content and context specific. To apply it requires an objectively sufficient understanding of the substance and scope of the underlying subject. Even so, interpreting whether a comment is stopped this subject will necessarily involve a healthy dose of interpretative discretion, since “the point at which discourse becomes unduly repetitive or largely irrelevant is not mathematically determinable”.

Krasno argues that the inherent subjectivity in deciding whether something is off topic, along with the undisputed evidence of inconsistent application, means the University must abandon the rule. See Mansky (“It goes without saying that an indefinite ban brings with it ‘[t]opportunity for abuse, especially where [it] received a virtually open interpretation. “). However, Krasno did not explain how the University could preserve the forum for its intended use – discussion of topics selected for publication by the University –without conferring significant discretionary power on its moderators. Depending on the nature of the forum, even a rule that “may defy objective description and may vary according to individual circumstances” is not necessarily unreasonable. Griffin v. Secretary of Veterans Affairs (Fed. Cir. 2002) (the rule granting discretion to VA administrators to ensure cemeteries remain “sacred to the honor and memory of those buried or memorialized therein” was reasonable considering given the characteristic nature and function of national cemeteries).

Here, as with any moderated discussion, a fair amount of judgment must be exercised by the moderator to ensure that the forum serves its purpose. But that doesn’t make the terms “irrelevant” or “off-topic” entirely subject to the whims of the moderator. On the contrary, although reasonable people may have varying degrees of tolerance when something is “irrelevant” or “off topic”, the terms as commonly understood are objective enough to exclude wildly divergent applications, in especially now that the University has made it clear in its social media statement that the point of comparison for relevance purposes is the subject of the University’s message. Additionally, by prohibiting its moderators from engaging in viewpoint discrimination, it has reduced the likelihood that the “off-topic” rule will be used as a baton to stifle speech with which the moderator is not in agreement. OK.

Finally, the existence of other channels of communication is a factor in the analysis of reasonableness. Here, there are myriad alternative mediums through which Krasno, other animal rights activists — and everyone else in the world — can air their off-topic opinions about the University to the public. Since the Internet has become the “modern public square”, Krasno and omnes in the world can say what they want about the University on their own media accounts, major and popular platforms for which extend far beyond Facebook and Instagram. Given these alternatives and the University’s stated intolerance of discrimination of viewpoints, I am confident that the risk that the University may sometimes hide arguably relevant comments does not outweigh on its interests in maintaining the comment threads for the intended purposes.

In sum, the University’s rule allowing moderation of off-topic comments is a reasonable and viewpoint-neutral rule that furthers the University’s legitimate interest in preserving interactive comment threads for the discussion of topics posted by the University. Krasno is free to publish his views on animal testing on his own pages or anywhere else allowed on the internet. However, she does not have a First Amendment right to post them on the University’s social media pages unless they are relevant to the subject of the University’s message….

Jessica C. Bell