The Volokh Conspiracy
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Government Entity's Excluding "Off-Topic" Comments on Social Media Posts May Be Constitutional
From Krasno v. Mnookin, decided yesterday by Magistrate Judge Stephen Crocker (W.D. Wisc.):
Although there is no requirement of narrow tailoring in a nonpublic forum, the government's restrictions still must be viewpoint neutral and must be "reasonable in light of the purpose served by the forum." In order to show that a speech restriction is "reasonable," the government must show that its restraint: (1) furthers a "permissible objective;" and (2) contains "objective, workable standards" that are "capable of reasoned application."
{[C]ourts often describe a forum opened by the government that is limited to certain speakers or subjects as a "limited public forum." Although most of these cases use the term interchangeably with "nonpublic," meaning that regulations in both are subject to a lower level of scrutiny, at times the term "limited public forum" has been used to describe a subcategory of "designated public" fora subject to the strict scrutiny test. In the instant case, when the University argues that the comment threads to its social media posts are "limited public" fora, I understand it to mean a forum governed by the reasonableness and viewpoint neutrality requirements applied to "nonpublic" fora. To avoid confusion, I will use the term "nonpublic" in this opinion to designate such a forum.}
[T]he University has a legitimate, viewpoint-neutral interest in limiting the comment threads to discussion of or reaction 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 the interactive comment threads, the University monitors what other social media users are saying in response to the University's posts, to see how its content is generally being received and to see the reactions its posts are generating. The University also wants to see if anyone has questions, and it may engage in its own speech in the comment threads to answer them. Allowing off-topic comments to proliferate makes it more difficult for the University to engage with its followers and to see comments to which it may wish to respond.
It also is legitimate for the University to consider the distraction that off-topic comments may present to other users seeking to engage in and to discuss the topic of the University's post. It is reasonable for the University to conclude that these other users may be less inclined to leave a comment, to ask a question, or to engage in on-topic discussion with other users if the University's pages are fraught with off-topic comments…. "[F]ailure to effectively moderate a public discussion may be as deleterious to dialogue in such a forum as censorship." There is nothing unreasonable about the University preferring that the interactive comment threads have the look and feel of a brown bag lunch discussion rather than its open-air Library Mall at the foot of State Street.
Krasno argues that this court should find the University's goal of preserving its comment threads for on-topic discussion to be illegitimate because the University has not come forth with evidence of a time when a large volume of off-topic comments that actually prevented it from seeing a comment to which it would have responded, or with evidence that other users have complained or stopped commenting because of a proliferation of such comments. Krasno further points out that, unlike other public fora such as board meetings, where irrelevant commentary can take up the board's limited time for conducting business, Facebook and Instagram are designed to host dozens, if not hundreds of comments within a user's posts. In light of this, contends Krasno, off-topic comments are not inherently more disruptive of the purpose of the forum than large amounts of on-topic comments, which the University indisputably tolerates.
I agree with Krasno that the University's stated interests in limiting its fora to on-topic speech are not so strong as to be unassailable, but in a nonpublic forum, they don't have to be. "In contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated." Thus, whether large volumes of on-topic speech may or may not be disruptive is not the question; the question is whether it is unreasonable for the University to prohibit off-topic speech. Given that the University has a legitimate interest in hosting a moderated forum for discussion of the subjects on which it posts, off-topic comments are, by definition, more disruptive than on-topic comments….
Having concluded that the University may hide or delete off-topic comments, the remaining question to be answered is whether the University's off-topic rule, which is undoubtedly viewpoint neutral on its face, is "capable of reasoned application." To meet this test, "the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out." Minnesota Voters Alliance v. Mansky. This does not require eliminating all discretion but merely that any discretion "must be guided by objective, workable standards." In Mansky, for example, the Court found that Minnesota's law prohibiting anyone from wearing a "political" 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 of partisan discord, Minnesota had failed to offer any interpretations of the expansive term that were capable of reasoned application….
Although the Court recognized that election judges screening individuals at the entrance to the polls needed to have some degree of discretion and that "[p]erfect clarity and precise guidance" were not required, the problems with Minnesota's restriction went "beyond close calls on borderline or fanciful cases" and was therefore unreasonable….
[W]hether a statement is "off" or "on" topic is content and context specific. To apply it, one needs an objectively sufficient understanding of the substance and scope of the underlying topic. Even then, interpreting whether a comment is off this topic necessarily will involve a fair amount of interpretive discretion, because "the point at which speech becomes unduly repetitious or largely irrelevant is not mathematically determinable."
Krasno contends that the subjectivity inherent in deciding whether something is off topic, along with the undisputed evidence of inconsistent application, means that the University must abandon the rule. See Mansky ("It is 'self-evident' that an indeterminate prohibition carries with it '[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.' "). However, Krasno hasn't explained how the University could preserve the forum for its intended use — discussion of the topics selected for posting by the University—without vesting significant discretion in its moderators. Depending on the nature of the forum, even a rule that "may defy objective description and may vary with individual circumstances" is not necessarily unreasonable. Griffin v. Secretary of Veterans Affairs (Fed. Cir. 2002) (rule vesting discretion in VA administrators to ensure that cemeteries remain "sacred to the honor and memory of those interred or memorialized there" was reasonable in light of characteristic nature and function of national cemeteries).
Here, just like in any moderated discussion, a fair amount of judgment must be vested in the moderator in order to ensure the forum serves its intended purpose. But that doesn't make the terms "not germane" or "off topic" wholly subject to the whims of the moderator. To the contrary, although reasonable people may have different degrees of tolerance for when something is "not germane" or "off topic," the terms as commonly understood are sufficiently objective to preclude wildly divergent applications, particularly now that the University has made clear in its Social Media Statement that the comparison point for relevancy purposes is the subject of the University's post. Further, by prohibiting its moderators from engaging in viewpoint discrimination, it has reduced the likelihood that the "off topic" rule will be used as a cudgel to stifle speech with which the moderator disagrees.
Finally, the existence of alternative channels of communication is a factor in the reasonableness analysis. Here, myriad alternative means of communication exist by which Krasno, fellow animal rights advocates—and everyone else in the world—may express their off-topic views about the University to the public. To the extent the internet has become the "modern public square," Krasno et omnes in mundo can say whatever they wish about the University on their own media accounts, major, popular platforms for which extend well beyond Facebook and Instagram. Given these alternatives and the University's professed intolerance of viewpoint discrimination, I am satisfied that the risk that the University may sometimes hide arguably relevant comments does not outweigh its interests in maintaining the comment threads for their intended purpose.
In sum, the University's rule allowing for moderation of off-topic comments is a reasonable and viewpoint neutral rule that furthers the University's permissible interest in preserving the interactive comment threads for discussion of the subjects posted by the University. Krasno is free to post her views about testing on animals on her own pages or anywhere else allowed on the internet. However, she has no First Amendment right to post them on the University's social media pages unless they are germane to the topic of the University's post….
