Madeline Krasno v. Jennifer Mnookin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-3170

MADELINE KRASNO,

Plaintiff-Appellant,

v.

JENNIFER MNOOKIN, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 21-cv-99 — Stephen L. Crocker, Magistrate Judge.

____________________

ARGUED SEPTEMBER 21, 2023 — DECIDED AUGUST 1, 2025

____________________

Before EASTERBROOK, ROVNER, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge. After the University of Wisconsin–

Madison hid Madeline Krasno’s comments on its social media

posts and restricted Krasno’s Instagram account, Krasno

sued, alleging a violation of her First Amendment rights.

Krasno claimed she earned the University’s disapproval for

calling attention to what she believes to be animal abuse in the

University’s primate testing facilities. The University de-

fended its social media moderation decisions on the ground

2 No. 22-3170

that it was hiding “off-topic” comments. The district court en-

tered summary judgment for the University and denied sum-

mary judgment for Krasno. Relevant here, the district court

found the University’s comment threads were nonpublic fo-

rums and upheld the University’s social media moderation

decisions as reasonable and viewpoint neutral. It further held

that Krasno lacked standing to seek an injunction against the

University’s ongoing use of keyword filters to implement its

rule against off-topic comments.

We disagree. We find that Krasno has standing to bring

this as-applied challenge. We also conclude that the interac-

tive comment threads attached to the University’s posts are

limited public forums, such that speech restrictions imposed

by the University on the comment threads must be reasonable

and viewpoint neutral. Because the University’s ill-defined

off-topic comment rule is neither reasonable nor viewpoint

neutral, we find it unconstitutional under the First Amend-

ment.

I. BACKGROUND

“We review de novo a district court’s decision on cross-

motions for summary judgment, construing all facts and

drawing all reasonable inferences in favor of the party against

whom the motion under consideration was filed.” Hess v. Bd.

of Trs. of S. Ill. Univ., 839 F.3d 668, 673 (7th Cir. 2016). The fol-

lowing facts are undisputed.

A. Factual Background

1. Social Media Platforms

“Social-media platforms … have gone from unheard-of to

inescapable.” Moody v. NetChoice, LLC, 603 U.S. 707, 716

No. 22-3170 3

(2024). They now represent one of the “most important places

… for the exchange of views” in modern life. Packingham v.

North Carolina, 582 U.S. 98, 104 (2017). The University of Wis-

consin–Madison operates social media accounts on Instagram

and Facebook. Instagram and Facebook are social media plat-

forms that allow people and institutions to interact with one

another, including by sharing photos, videos, and messages.

Once a person or entity creates an account on either platform,

the platform generates an account-specific webpage where

the account holder can “post” (i.e., publish) content. When the

account holder posts content—whether in the form of photos,

videos, or text—the content is automatically accompanied by

an interactive space immediately adjacent to the content,

where other accounts can write comments and reply to com-

ments from others. This space is known as a “comment

thread.”

Comment threads on Instagram and Facebook are at-

tached to, but separate from, an account holder’s original

post. Within a comment thread, a commenter’s unique Insta-

gram or Facebook username appears immediately prior to the

comment. In other words, a comment is attributed to the com-

menter.

Instagram and Facebook offer tools for an account holder

to limit how commenters can interact in the comment threads

attached to the account holder’s posts. For instance, on Insta-

gram, an account holder can disable the comment thread en-

tirely for the account’s posts. Additionally, an Instagram ac-

count holder can “restrict” another account. If Account A “re-

stricts” Account B, then all of Account B’s comments will be

automatically hidden from the comment threads attached to

Account A’s posts, unless Account A affirmatively approves

4 No. 22-3170

a specific comment. Restricted accounts are not notified that

they have been restricted.

On Facebook, an account holder can manually hide from

public view, or delete entirely, specific comments of others. A

hidden comment can be seen only by the commenter and the

commenter’s “friends,” 1 while a deleted comment cannot be

seen by anyone.

Finally, both Instagram and Facebook allow account hold-

ers to implement “keyword filters” that automatically hide

any comments containing specific words or phrases the ac-

count holder selects.

2. The University’s Social Media Accounts and Comment

Moderation

The University’s Instagram and Facebook accounts bear

the username “UWMadison.” The University uses its ac-

counts to communicate official announcements, events, and

policies; they are considered “the official voice of the Univer-

sity.” The University chose to make both accounts “public,”

which by default allows anyone with an Instagram or Face-

book account to view and comment on the University’s posts.

The University’s audience includes current and prospective

students, faculty, staff, alumni, community members, and the

public. 2 To engage its audience, the University has created

more than 2,400 Instagram posts covering a wide range of

1

On Facebook, accounts can “friend” one another, thereby gaining access

to one another’s non-public posts.

2

(Dkt. 40, Joint Statement of Undisputed Facts, ¶¶ 67, 76).

No. 22-3170 5

topics. It also frequently shares information, announcements,

and anecdotes on its Facebook account.

The University’s Office of University Communications

oversees these social media accounts, including by moderat-

ing comments on the University’s posts. John Lucas is the As-

sistant Vice Chancellor for University Communications; Mike

Klein is the Director for News Content and Editorial Projects;

and Nate Moll is a Social Media Manager. Klein and Moll

make daily moderation decisions regarding comments on the

University’s posts, while Lucas oversees compliance with the

University’s social media guidelines for comment modera-

tion.

The University has a public “Social Media Statement”

which it published to its website before this litigation began.

It provides:

While UW–Madison does not regularly review

content posted to social media sites, it shall have

the right to remove any content for any reason,

including but not limited to, content that it

deems threatening, profane, obscene, a viola-

tion of intellectual property rights or privacy

laws, off-topic, commercial or promotion of or-

ganizations or programs not related to or affili-

ated with the university, or otherwise injurious

or illegal. Users are fully responsible for the con-

tent they load on any of UW–Madison’s social

media sites.

After the start of this litigation, the University distributed

interim guidance to its social media staff. The guidance in-

structs that the University’s “social media managers may

6 No. 22-3170

engage in content moderation of social media pages based on

one criterion: whether posted content is on vs. off topic.” It

provides that social media managers have discretion to “re-

move posts that are unrelated to the topic or purpose of the

page.” As an example, it explains that “while the social media

manager of a page dedicated to UW–Madison’s animal re-

search programs may hide a post stating ‘Taylor Swift is the

B0mB,’ he or she cannot hide a post that states, ‘Taylor Swift

agrees that all universities should stop torturing animals by

using them for research. This includes UW–Madison’s animal

research programs!’”

In addition to manual moderation, the University employs

keyword filters on its Instagram and Facebook accounts to en-

force the University’s social media guidelines. The University

programmed its keyword filter on Instagram to automatically

hide comments that include the following words or phrases:

#freebabycocoa, #releasecornelius, @peta, Cornelius, 3

WNPRC, 4 abusing, animal testing, biden, cruelty, kill animals,

killers, lab, monsters, rot in hell, shame on, testing on animals,

testing on cats, tests on cats, torture, torturing, trump, vivisec-

tion, you guys are sick. Its keyword filter on Facebook auto-

matically hides comments that include, among other phrases:

peta, macaques, animal laboratories, testing on animals, ani-

mal testing, barbaric, wnprc, primate, primates, experiment-

ing on, research animals, cruelty, torturing, torture, vivisec-

tion, monkeys, and experimenting.

3

Cornelius is one of the primates at the University’s research labs.

4

“WNPRC” stands for the Wisconsin National Primate Research Center.

No. 22-3170 7

Much of the University’s content moderation decisions are

left to its employees’ discretion. The University has no formal

practice for adding or removing terms from its keyword fil-

ters; the process is “situation dependent” and occurs on an

“as-needed basis.” Nor has it provided written guidance to

help staff decide whether to “ban” a user on social media; it

instead does so on a “case-by-case basis.” Similarly, Moll,

Klein, and Lucas have discretion to hide, respond to, or ignore

comments left by users. The University does not conduct au-

dits or compliance reviews regarding the application and en-

forcement of its social media guidelines.

3. Krasno’s Advocacy and the University’s Response

While a student at the University of Wisconsin–Madison,

Krasno worked as a primate caretaker at the Harlow Center

for Biological Psychology. Through the Harlow Center and

the Wisconsin National Primate Research Center, the Univer-

sity conducts invasive research on animals, including nonhu-

man primates.

Krasno’s background working for the Harlow Center in-

spired her to become an animal rights advocate and educate

others about the treatment of primates. She does this, in part,

by using social media to highlight her experiences at the Har-

low Center.

In September 2020, Krasno began commenting on the Uni-

versity’s social media posts to advocate for animal rights. For

instance, on September 18, 2020, she commented on a Univer-

sity Instagram post about dairy cows at the University’s Dairy

Cattle Center: “stop exploiting animals. Get with the future

and the future is consistent anti-oppression. Shut down the

labs and eat plants!” She also responded to another user’s

8 No. 22-3170

comment, explaining that she “used to work in one of their

labs.” Krasno’s comments were hidden. Another user com-

mented on the same post, stating, “Hopefully I will be admit-

ted next year, fingers crossed!” That comment was not hid-

den.

Ten days later, Krasno commented on a University Insta-

gram post about a new recreation center. Krasno wrote,

“Thanks for continuing to delete my comments … I will con-

tinue to share the truth about what it was like working in one

of your primate research labs and advocate for their closure.

… [T]oday is a great day to shut down the primate research

labs!” This comment, too, was hidden. At the time Krasno

posted, the post had 179 other comments.

At the end of September 2020, the University restricted

Krasno’s Instagram account, thereby automatically hiding her

comments on the University’s posts. When questioned about

the account restriction, Moll explained that he had noticed a

“consistent pattern of off-topic comments” by Krasno. By the

time Krasno filed suit, Krasno was the only person the Uni-

versity had restricted on Instagram. Moll removed the re-

striction on Krasno’s Instagram account in late January 2021.

While Krasno’s Instagram account was restricted, she

commented on five of the University’s posts; each comment

was hidden automatically due to the restriction. Four of the

posts she commented on concerned the University’s mascot,

COVID-19 efforts and measures, and Thanksgiving travel.

Krasno’s comments on these four posts urged the University

to stop testing on monkeys or to close its primate labs. The

fifth post concerned a dog being treated for cancer at the Uni-

versity’s veterinary hospital. On that post, Krasno com-

mented on December 22, 2020, “It is really quite hypocritical

No. 22-3170 9

the compassion shown to this dog while thousands of animals

languish in laboratories at @uwmadison. I really wish you

would acknowledge this and do something about it.” None of

these comments were unhidden after the University lifted

Krasno’s account restriction in January 2021, though the Uni-

versity does not dispute that the December 22 comment was

on topic.

The University also manually moderated Krasno’s com-

ments on Facebook. For example, on December 9, 2020,

Krasno commented on a University Facebook post about

proud alumni, stating, “University of Wisconsin–Madison,

are you really proud of all your graduates or just the ones who

don’t object to your barbaric treatment of monkeys in your

research labs?” The University manually hid Krasno’s com-

ment for being off topic.

On December 13, 2020, Krasno commented on a Univer-

sity Facebook post about winter commencement and the fu-

ture, remarking, “I wish you would think about the future in

new ways too and stop testing on monkeys. Working in one

of those labs during college showed me how important it is

that we create a just world. Animal research is not the way to

accomplish this.” This comment, which included a word on

the University’s keyword filter list (“monkeys”), was hidden.

Once Krasno discovered the University’s use of keyword

filters, she began modifying the spelling of certain words to

avoid the filters. On May 9, 2021, she responded to a Univer-

sity Instagram post about Mother’s Day, commenting “What

about all the mothers you have in cages on campus? Celebrat-

ing them too after ripping their babies away from them? A n

l m a l t e s t l n g is cruel.” On March 24, 2022, in response to

a University Facebook post announcing a “Cool Science

10 No. 22-3170

Image contest,” Krasno commented, “Considering much of

the ‘science’ done at the university is research without con-

sent AKA t e s t l n g o*n a n l m a l s, let’s see some footage

[of] the a l n m a l s in your l a b s. After all, y’all are all about

transparency right?” Both comments remain publicly visible.

B. Procedural History

On February 10, 2021, Krasno sued the University of Wis-

consin–Madison’s Board of Regents alongside Jennifer

Mnookin,5 the University’s Chancellor; Charles Hoslet, the

Vice Chancellor for University Relations; John Lucas, the As-

sistant Vice Chancellor for University Communications; Mike

Klein, the Director for News Content and Editorial Projects;

and Nate Moll, a Social Media Manager. Krasno alleged the

University violated her First Amendment rights by censoring

her speech in the University’s comment threads. Krasno

sought injunctive relief, declaratory relief, and nominal dam-

ages.

Each side moved for summary judgment. The parties dis-

puted, among other things, the nature of the forum the Uni-

versity created in its comment threads and the corresponding

standard to apply in assessing the University’s moderation

decisions. They also disputed whether Krasno had standing

and whether certain relief Krasno requested was barred by

the Eleventh Amendment. While briefing was ongoing,

Krasno voluntarily dismissed the Board of Regents as a de-

fendant, leaving only the individual defendants in the case.

5

Krasno initially sued Rebecca Blank, then-Chancellor of the University

of Wisconsin–Madison. When Jennifer Mnookin became Chancellor dur-

ing the pendency of this lawsuit, the district court substituted Mnookin

for Blank under Federal Rule of Civil Procedure 25(d).

No. 22-3170 11

The district court entered summary judgment for the de-

fendants and denied summary judgment for Krasno. It began

by applying the Supreme Court’s forum jurisprudence. Find-

ing nonpublic and limited public forums substantively equiv-

alent, the court determined that the comment threads at-

tached to the University’s posts were nonpublic forums, such

that any restrictions to speech were required to be reasonable

and viewpoint neutral. The court then held the University’s

off-topic comment rule satisfied this standard.

Next, the district court concluded that the Eleventh

Amendment barred Krasno’s official capacity claims against

the individual defendants insofar as they related to the deci-

sion to restrict her Instagram account and hide her December

9, 2020, Facebook comment. In particular, the district court

determined that the Ex parte Young limitation on sovereign

immunity did not save her claims because any violation was

no longer ongoing. As for Krasno’s request to enjoin the Uni-

versity’s use of keyword filters, the district court held that

Krasno lacked standing because she did not have a right “to

comment about animal testing regardless of the topic of the

University’s posts” and had not shown she was likely to be

harmed by the keyword filter in the future. Finally, the court

concluded that Krasno’s individual capacity claims failed be-

cause the defendants were entitled to qualified immunity.

Krasno timely appealed.

II. ANALYSIS

On appeal, Krasno challenges the dismissal of her official-

capacity claims against the individual defendants. Krasno ar-

gues the University’s off-topic comment rule—as imple-

mented through keyword filters, an Instagram account

12 No. 22-3170

restriction, and manual moderation of individual comments

pursuant to the University’s Social Media Statement and in-

terim guidance—is unconstitutional as applied to her.

We first address the jurisdictional issues relevant to this

appeal. We then turn to the merits of Krasno’s First Amend-

ment challenge.

A. Jurisdictional Issues

1. Standing

Article III of the United States Constitution limits the judi-

cial power to deciding “cases” and “controversies.” U.S.

CONST. art. III. § 2. To establish a case or controversy, the

plaintiff must demonstrate a “personal stake” in the matter.

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). In other

words, the plaintiff must establish standing to sue. Id. Stand-

ing requires a plaintiff to show “(i) that [s]he suffered an in-

jury in fact that is concrete, particularized, and actual or im-

minent; (ii) that the injury was likely caused by the defendant;

and (iii) that the injury would likely be redressed by judicial

relief.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992)).

The district court concluded that Krasno lacked standing

to seek injunctive relief against the University’s continued use

of keyword filters. In the district court’s view, Krasno was un-

able to show she faced an actual and imminent injury because

she had no “constitutionally-guaranteed right to comment

about animal testing regardless of the topic of the University’s

posts.” Nor could she show redressability, in the district

court’s view, because the possibility that Krasno would make

an off-topic comment that would be caught by the University’s

keyword filters was speculative.

No. 22-3170 13

But the district court erred by collapsing its standing in-

quiry into its assessment of the merits. Standing does not re-

quire a plaintiff to prove success on the merits. Aurora Loan

Servs., Inc. v. Craddieth, 442 F.3d 1018, 1024 (7th Cir. 2006). Ra-

ther, it requires demonstrating “a colorable claim” to a right

that the defendant allegedly infringed. Id. The conclusion that

Krasno lacked standing was based on the court’s merits de-

termination that Krasno had no right to comment on the Uni-

versity’s social media posts. But whether Krasno in fact has a

right to comment on the University’s posts cannot answer the

question of whether she raised a colorable claim to relief.

“Otherwise every losing suit would be dismissed for lack of

jurisdiction.” Owsley v. Gorbett, 960 F.3d 969, 971 (7th Cir.

2020).

Krasno has standing to seek relief against the University’s

moderation of her comments. She claims the University is bar-

ring her speech from the interactive portions of its social me-

dia pages by enforcing its off-topic comment rule in a discrim-

inatory manner. That is a cognizable injury. See Members of

City Council of City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 803 (1984). The University continues to implement

its off-topic rule through keyword filters that block the speech

Krasno wants to engage in, such that the alleged harm is on-

going and could warrant injunctive relief. See Backpage.com,

LLC v. Dart, 807 F.3d 229, 238–39 (7th Cir. 2015).

Krasno has demonstrated that her comments have been

suppressed by the University’s implementation of its off-topic

comment rule in the past, that she wants to continue comment-

ing in the future, and that the University’s filters have largely

remained stagnant over time. As such, she has shown that the

off-topic comment rule poses an ongoing threat of actual or

14 No. 22-3170

imminent injury. See Bell v. Keating, 697 F.3d 445, 454 (7th Cir.

2012); Lawson v. Hill, 368 F.3d 955, 957 (7th Cir. 2004). Such

injury is redressable because an injunction against the use of

the keyword filters would remedy the injury allegedly caused

by the filters blocking Krasno’s speech. See Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 74 (2001) (“[I]njunctive relief has long

been recognized as the proper means for preventing entities

from acting unconstitutionally.”).

2. Sovereign Immunity

As confirmed by the Eleventh Amendment, states are sov-

ereigns and are therefore immune from suit. Va. Off. for Prot.

and Advoc. v. Stewart, 563 U.S. 247, 253 (2011). While “the Elev-

enth Amendment is not ‘jurisdictional’ in the same way as Ar-

ticle III’s case-or-controversy requirement,” it is “‘jurisdic-

tional’ in the sense that a defendant invoking its sovereign im-

munity deprives a federal court of jurisdiction over the claims

against that defendant.” McHugh v. Ill. Dept. of Trans., 55 F.4th

529, 533 (7th Cir. 2022).

The doctrine of Ex parte Young provides an “important

limit on the sovereign-immunity principle.” Stewart, 563 U.S.

at 254. It “allows suits … for declaratory or injunctive relief

against state officers in their official capacities.” Reed v. Goertz,

598 U.S. 230, 234 (2023). In particular, private parties may sue

state officials in their official capacities “for prospective relief

to enjoin ongoing violations of federal law.” Sherwood v. Mar-

chiori, 76 F.4th 688, 693 (7th Cir. 2023) (citation and quotation

omitted).

“In determining whether the doctrine of Ex parte Young

avoids an Eleventh Amendment bar to suit, a court need only

conduct a straightforward inquiry into whether [the]

No. 22-3170 15

complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Verizon

Md., Inc. v. Pub. Serv. Com’n of Md., 535 U.S. 635, 645 (2002)

(alteration in original) (citation and quotation omitted).

Ex parte Young permits Krasno’s request for an injunction

against the University’s use of keyword filters, which quali-

fies as prospective relief against an allegedly ongoing viola-

tion of federal law. Likewise, Krasno may seek injunctive re-

lief against the University’s ongoing implementation of its

off-topic comment rule through the manual moderation of its

comment threads. The sources of the University’s rule—i.e.,

its Social Media Statement and interim guidance—continue to

afford moderators discretion to manually moderate com-

ments.

The district court, however, found barred by sovereign

immunity Krasno’s request for a declaration that the re-

striction of her Instagram account and hiding of a December

2020 Facebook comment violated the First Amendment. 6 As it

observed, the University lifted the restriction on Krasno’s In-

stagram account in January 2021 such that any violation of

federal law was not ongoing; rather, the restriction occurred

only in the past. It also reasoned that the University’s act of

hiding the December 2020 Facebook comment was past con-

duct.

6

Although the district court and Krasno frame the University’s action on

December 9, 2020, as the deletion of a Facebook comment, the record re-

flects that the Facebook comment was hidden by the University; it was not

deleted. For accuracy, we refer to the December 9 comment as being hid-

den, not deleted.

16 No. 22-3170

We agree with the district court that Ex parte Young does

not allow Krasno to seek relief for either event. The Instagram

account restriction was lifted in January 2021. Krasno is there-

fore free to comment on the same posts on which she previ-

ously commented; this time, her comments will not be auto-

matically hidden pursuant to any account restriction. Simi-

larly, the hiding of a Facebook comment in December 2020

occurred in the past. Because these actions are not “continu-

ing conduct” that must be “change[d] to comply with federal

law,” they do not amount to alleged ongoing violations of fed-

eral law and Ex parte Young does not apply. Sherwood, 76 F.4th

at 694 (quoting Watkins v. Blinzinger, 789 F.2d 474, 484 (7th Cir.

1986)).

The relief Krasno sought in relation to the account re-

striction and hiding of her December 2020 Facebook comment

also cannot be “properly characterized as prospective.” Veri-

zon Md., Inc., 535 U.S. at 645. In particular, Krasno sought an

order declaring that “Defendants’ practice of restricting [her]

Instagram account” and “deletion of [her] comments from the

UW–Madison Facebook page … [are] unconstitutional.” But

an order declaring that these past actions violated the Consti-

tution would not require the University to act prospectively.

P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 146 (1993) (Ex parte Young “does not permit judgments

against state officers declaring that they violated federal law

in the past”). And while Krasno proposes on appeal that she

could also be entitled to an injunction requiring the University

to “unhide” the comments that were hidden, she does not

identify where she requested this form of injunctive relief be-

fore the district court. As far as we can tell, the prospective

action she sought from the University concerned its ongoing

implementation of its off-topic comment rule through

No. 22-3170 17

keyword filters and discretionary manual moderation deci-

sions. She cannot advance new claims for relief for the first

time on appeal. Gerlach v. Rokita, 95 F.4th 493, 498 (7th Cir.

2024).

B. First Amendment Analysis

Having established our jurisdiction and the relief Krasno

may seek in view of the Eleventh Amendment, we turn to the

merits of Krasno’s First Amendment challenge to the Univer-

sity’s off-topic rule, as applied to her. The First Amendment

provides, in relevant part, that “Congress shall make no law

… abridging the freedom of speech.” U.S. CONST. amend. I. It

applies to the states (and, by extension, state universities) via

the Fourteenth Amendment’s Due Process Clause. Gitlow v.

New York, 268 U.S. 652, 666 (1925) (states); Widmar v. Vincent,

454 U.S. 263, 267–69 (1981) (state universities).

The parties agree the comment threads attached to the

University’s social media posts are government-controlled

property. When the government restricts private speech on

property it controls, the Supreme Court’s forum caselaw

guides our assessment of whether the restrictions are consti-

tutional. Hague v. CIO, 307 U.S. 496, 515–16 (1939); Perry Educ.

Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45–46 (1983);

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106–112

(2001); Christian Legal Soc’y v. Martinez, 561 U.S. 661, 679 n. 11

(2010). By contrast, “forum analysis is misplaced” when the

government is “speaking on its own behalf” on its property,

Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.

200, 215 (2015), as the government is “entitled … to take a po-

sition” when it speaks, id. at 208. Accordingly, before under-

taking any forum analysis, we must assure ourselves that

comments within the comment threads are private speech

18 No. 22-3170

rather than speech of the University. We do this by applying

the government-speech doctrine. Shurtleff v. City of Boston,

Mass., 596 U.S. 243, 252–53 (2022).

1. Government-Speech Doctrine

Our evaluation of “whether the government intends to

speak for itself or to regulate private expression” on its prop-

erty “is not mechanical” nor guided by “the rote application

of rigid factors”; rather, “it is driven by a case’s context.”

Shurtleff, 596 U.S. at 252. Speech may be attributed to the gov-

ernment where, for example, the government has “actively

shaped or controlled” the messaging on its property to a

meaningful extent, id., or where “the public would tend to

view the speech at issue as the government’s,” id. at 255.

For instance, in Pleasant Grove City, Utah v. Summum, the

Supreme Court found that Pleasant Grove City’s display of

donated monuments in its park constituted the City’s expres-

sive conduct, as the City actively selected certain monuments

“for the purpose of presenting the image of the City that it

wishe[d] to project,” and because “persons who observe[d]

donated monuments” on the City’s property would reasona-

bly “interpret them as conveying some message on the

[City’s] behalf.” 555 U.S. 460, 471–73 (2009).

Likewise, in Walker, the Supreme Court held that specialty

license plate designs offered by Texas for use by its citizens

conveyed Texas’ speech, even though some of the designs

were created and proposed by private groups. 576 U.S. at 204–

05, 208, 214–15. To that end, it was relevant that a proposed

design would not be offered to the public until the design re-

ceived affirmative approval from the Texas Department of

Motor Vehicle Board. Id. at 205, 213–14. In both Summum and

No. 22-3170 19

Walker, then, the government was actively involved in select-

ing content to display on its property, such that the govern-

ment effectively adopted its selections as its own expression.

In contrast, the Supreme Court in Shurtleff found that the

city of Boston was not engaged in government speech when,

“[f]or years,” it “allowed private groups to request use of the

flagpole [outside Boston City Hall] to raise flags of their

choosing.” 596 U.S. at 248. While the Court acknowledged

Boston’s tradition of displaying flags on its City Hall Plaza to

“convey the city’s messages,” id. at 254, and further recog-

nized the possibility that the public might “ordinarily associ-

ate a flag’s message with Boston,” id. at 255, it found “most

salient” that Boston lacked “meaningful involvement in the

selection of flags or crafting of their messages,” id. at 256, 258.

For instance, the Court noted that the city employee tasked

with handling flag-raising applications never viewed the

flags prior to the flag-raising events, and that Boston offered

no guidance as to the permissible messages that flags could

communicate. Id. at 257. As such, the flag raising was deemed

private speech. Id. at 258.

Because the comment threads here operate similarly to

Boston’s flag-raising program and differently from a govern-

ment’s display of donated statues in its park or curated offer-

ing of license plate designs, we find that the comments are

private speech. Most critically, the University is not actively

involved in the selection of the comments displayed on its

comment threads, as the University does not sift through sub-

missions of comments to feature only those comments that

“present[] the image of the [University] that it wishes to pro-

ject.” Summum, 555 U.S. at 473. Were Moll or another social

media moderator to screen all comments prior to publication

20 No. 22-3170

and then publish only those comments that aligned with the

University’s preferred image, the comments could more rea-

sonably be attributed to the University. But that is not how

the comment threads operate. Comments are published with-

out the University taking any action, such that “the degree of

government involvement” in shaping the comments’ messag-

ing is nearly imperceptible. Shurtleff, 596 U.S. at 257.

We acknowledge that the keyword filters employed by the

University do amount to some government involvement in the

messages that ultimately appear on the comment threads. But

the nature and extent of that involvement is not meaningful

enough to transform the comments into the University’s

speech. The keyword filters operate passively, not actively, as

they only suppress comments that happen to contain certain

phrases or words. See Shurtleff, 596 U.S. at 252. The filters do

not evaluate the substance of a comment to display only com-

ments that convey University-approved messages. See id. at

258. In fact, that a commenter may circumvent the filters to

publish a comment antithetical to the University’s messaging

(e.g., by editing the spacing of letters in a word) underscores

that the filters do not actively select messages the University

wishes to feature. Because the keyword filters are not mean-

ingfully or actively involved in selecting comments or shap-

ing a comment’s message, they do not supply a basis on

which we can find the comments constitute the University’s

speech. 7 See id.

7

The dissent portrays our reasoning as finding it “significant” that the

University uses an automated program rather than human curation in

suppressing comments from its comment threads. But our conclusion that

the University’s keyword filters do not transform the comments into

No. 22-3170 21

Given this absence of meaningful involvement by the Uni-

versity in selecting comments, we disagree with our dissent-

ing colleague that the comments are materially analogous to

letters to the editor featured in the University’s alumni mag-

azine. As the dissent acknowledges, in an alumni magazine,

each letter is chosen by the editor. That being the case, we take

no issue with the dissent’s position that a selection of letters

to the editor in the University’s magazine (whether in an

online or paper format) could constitute government speech.

But this case does not concern an alumni magazine, nor any

other online publication of the University. The comment

threads also do not function like an alumni magazine. Each

letter in an alumni magazine is chosen by the University; each

comment on the comment threads is not.

We also disagree with the dissent’s application of Shurtleff

as suggesting that the mere existence of a policy governing

speech transforms any speech subject to that policy into the

government’s own speech. Were we to accept the dissent’s ap-

plication, policies restricting speech on government property

would become unreviewable: So long as the government had

some policy regulating speech, the policy would be protected

from First Amendment scrutiny under the government-

speech doctrine. We cannot agree with this result, nor do we

find this result supported by Shurtleff. In applying the govern-

ment-speech doctrine, Shurtleff did not instruct courts to ask

the binary question of whether the government had a policy

regulating speech or not. Rather, Shurtleff instructed that

government speech does not rest on the distinction between automated

and human curation. To the contrary, our conclusion rests on the fact that

the degree of the keyword filters’ involvement in the comment threads is

minimal at best. See Shurtleff, 596 U.S. at 257.

22 No. 22-3170

courts conduct a “holistic inquiry” not driven by “the rote ap-

plication of rigid factors.” 596 U.S. at 252. That inquiry, it ex-

plained, may include an assessment of “the extent to which

the government has actively shaped or controlled the expres-

sion” on its property, id., and whether that involvement is

“meaningful,” id. at 258. Where there is no policy nor other

effort at shaping speech whatsoever, then the degree of gov-

ernment involvement will not be sufficiently meaningful to

warrant finding that the regulated speech is government

speech. See id. at 257. But that does not mean that the existence

of a policy compels finding that any speech subject to that pol-

icy is government speech. What mattered in Shurtleff was not

the existence or absence of a policy, alone, but the extent of

government involvement in shaping speech. Id. at 256–58.

Here, the University’s minimal involvement in shaping the

comments on its comment threads weighs against finding

that the comments constitute the University’s speech.

The University’s representations as to how it uses its com-

ment threads, and the nature of social media more generally,

reinforce that the University is not “enlist[ing] private [per-

sons] to convey [the University’s] own message” through the

private persons’ comments. Rosenberger v. Rector and Visitors

of Univ. of Va., 515 U.S. 819, 833 (1995). For example, the Uni-

versity represents that it does not generally “remove or re-

strict criticisms from the comment threads” on Facebook (dkt.

40 at 17 ¶ 78) and that it has replied to comments that criti-

cized the University (id. at 14 ¶ 64); (dkt. 54 at 17–18 ¶ 46).

The University also recognizes that its comment threads al-

low social media users to engage with one another, including

by debating issues such as the University’s research initia-

tives, the campus community’s willingness to wear face

masks, and the necessity and efficacy of a mobile COVID-19

No. 22-3170 23

testing facility. (Dkt. 40 at 16 ¶¶ 74–75). Moreover, the Uni-

versity’s Social Media Statement places responsibility on the

commenter for the content of a comment, reflecting that the

University does not intend to “take[] ownership” of each com-

ment on its comment threads or otherwise “associate[] itself”

with the comments. Walker, 576 U.S. at 216. Collectively, these

representations illustrate that the University opened its com-

ment threads to facilitate discourse among and with its audi-

ence, but not to display its audience’s comments “for the pur-

pose of delivering a [University]-controlled message.” Sum-

mum, 555 U.S. at 468.

The University’s discourse-oriented use of its comment

threads aligns with qualities inherent in social media, as well.

Indeed, the Supreme Court has acknowledged social media

as among “the most important places … for the exchange of

views,” likening it to a “modern public square” where indi-

viduals engage in protected First Amendment activities such

as speaking, listening, and debating topics “as diverse as hu-

man thought.” Packingham, 582 U.S. at 104, 105, 107. Because

individuals use social media with the expectation that they

will see and participate in debate and other discourse, we see

“little chance that observers will fail to appreciate the identity

of the speaker.” Summum, 555 U.S. at 471. The speaker is the

commenter. Should the University comment within a com-

ment thread attached to one of its posts (e.g., when replying

to a comment critical of the University), then the speaker will

be the University. But a comment published by a private per-

son constitutes the speech of that person, whose username is

displayed immediately prior to the person’s comment. We are

therefore confident that the public is unlikely to perceive

those comments as conveying a message on behalf of the Uni-

versity. See Shurtleff, 596 U.S. at 252. Accordingly, under the

24 No. 22-3170

“holistic inquiry” mandated by Shurtleff, the public’s likely

perception presents another reason to find the comments con-

stitute private speech. Id.

Because we find the University does not display the com-

ments of others as its own speech, but instead opens its com-

ment threads for private expression, we proceed to assess the

constitutionality of the University’s speech restrictions on its

comment threads by looking to “the nature of the relevant fo-

rum,” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

U.S. 788, 800 (1985), and the government’s action, see Minne-

sota Voters All. v. Mansky, 585 U.S. 1, 11–12 (2018).

2. The Supreme Court’s Forum Jurisprudence

The Supreme Court has identified several types of govern-

ment property, including: the traditional public forum, desig-

nated public forum, limited public forum, and nonpublic fo-

rum. Mansky, 585 U.S. at 11; Walker, 576 U.S. at 215–16; Mar-

tinez, 561 U.S. at 679 n.11.

A traditional public forum is public property—for in-

stance, streets and parks—that “ha[s] immemorially been

held in trust for the use of the public, and, time out of mind,

ha[s] been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions.”

Perry, 460 U.S. at 45 (citation and quotation omitted). A des-

ignated public forum encompasses “government property

that has not traditionally been regarded as a public forum”

but “is intentionally opened up for that purpose.” Summum,

555 U.S. at 469. In both traditional and designated public fo-

rums, “the government may impose reasonable time, place,

and manner restrictions on private speech, but restrictions

No. 22-3170 25

based on content must satisfy strict scrutiny, and those based

on viewpoint are prohibited.” Mansky, 585 U.S. at 11.

The government has considerably greater leeway in re-

stricting speech in the remaining forums: limited public fo-

rums and nonpublic forums. A limited public forum is estab-

lished when the government “open[s] property ‘limited to use

by certain groups or dedicated solely to the discussion of cer-

tain subjects.’” Martinez, 561 U.S. at 679 n.11 (quoting Sum-

mum, 555 U.S. at 470). And a nonpublic forum is a “space that

‘is not by tradition or designation a forum for public commu-

nication.’” Mansky, 585 U.S. at 11 (quoting Perry, 460 U.S. at

46). Rather, it exists “[w]here the government is acting as a

proprietor, managing its internal operations.” Int’l Soc’y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992); see

also Women’s Health Link, Inc. v. Fort Wayne Pub. Trans. Corp.,

826 F.3d 947, 951 (7th Cir. 2016) (describing a nonpublic forum

as property “that could be and sometimes [is] used for private

expressive activities but [is] not primarily intended for such

use”). Speech restrictions applied to limited public forums

and nonpublic forums need only be reasonable and view-

point-neutral; there is no strict scrutiny analysis involved.

Martinez, 561 U.S. at 679; Mansky, 585 U.S. at 11–12.

3. Determining the Type of Forum

Krasno argues the University’s comment threads are des-

ignated public forums, while the University contends they are

either nonpublic or limited public forums.

When considering how to classify a forum, the govern-

ment’s intent in establishing the forum matters. Cornelius, 473

U.S. at 802. Ascertaining the government’s intent requires that

we look to “the nature of the property and its compatibility

26 No. 22-3170

with expressive activity,” as well as the government’s “policy

and practice.” Id.

The comment threads attached to the University’s posts

are inherently compatible with expressive activity because

they are designed to facilitate that purpose. At the same time,

the University’s policy and practice demonstrate that in de-

ciding to open to the public the comment threads on its posts,

the University did not intend the public’s expressive activity

to proceed entirely unchecked. Instead, the University re-

served the right to remove any content for, among other

things, being off topic. 8 This policy was not a hidden or post

hoc rationale to support the University’s comment modera-

tion decisions. See Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation

of the City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995). Rather,

the Social Media Statement was publicly posted on the Uni-

versity’s website before this litigation began, and it consti-

tutes “[o]bjective indicia” of the University’s intent. Id. at

1154.

The University’s Social Media Statement and efforts at en-

forcing that statement reflect that the University did not in-

tend to create a designated public forum without limits on

discussion, but instead intended to open the comment sec-

tions for the discussion of certain subjects—principally, those

that relate to its posts. See Cornelius, 473 U.S. at 802–03 (“We

will not find that a public forum has been created in the face

of clear evidence of a contrary intent” or based on mere “in-

action” by the government). Accordingly, we find the

8

Krasno does not challenge the portions of the University’s Social Media

Statement that reserve the right to remove content for reasons other than

being off topic.

No. 22-3170 27

University’s comment threads are best characterized as lim-

ited public forums. 9

Our conclusion aligns with the few circuit courts that have

applied the Supreme Court’s forum jurisprudence to govern-

ment-run social media accounts. In general, courts have

found “that the comment threads of government social media

pages are designated public forums when the pages are open

for comment without restrictions and limited public forums

when the government prospectively sets restrictions.” People

for the Ethical Treatment of Animals v. Tabak, 109 F.4th 627, 634

(D.C. Cir. 2024) (collecting cases). Because the University

chose to promulgate and implement its Social Media State-

ment rather than open its comment threads without re-

striction, we conclude the comment threads attached to the

University’s posts are limited public forums. And while we

acknowledge the dissent characterizes our holding as finding

that Facebook itself is a limited public forum, we emphasize

that our holding is narrower. We decide only that the com-

ment threads attached to the University’s social media

posts—and not social media platforms more broadly—are

limited public forums.

9

Classifying the comment threads as nonpublic forums would not change

how we assess the constitutionality of the University’s speech restrictions.

We have at times treated limited public and nonpublic forums as synony-

mous, see Milestone v. City of Monroe, 665 F.3d 774, 783 n.3 (7th Cir. 2011),

while in other cases we have treated them as distinct, see Women’s Health

Link, Inc., 826 F.3d at 951. Regardless of whether the comment threads are

deemed limited public or nonpublic forums, the University’s regulation

of speech must be reasonable and viewpoint neutral. See Summum, 555

U.S. at 470 (limited public forums); Mansky, 585 U.S. at 13 (nonpublic fo-

rums).

28 No. 22-3170

4. Applying the Reasonable-and-Viewpoint-Neutral Test

to the Off-Topic Comment Rule

Because the University’s comment threads are limited

public forums, we must determine whether the speech re-

strictions within these spaces are reasonable and viewpoint

neutral. See Martinez, 561 U.S. at 679 n.11; Rosenberger, 515 U.S.

at 829.

We find unconstitutional the University’s off-topic rule as

applied to Krasno because it is not viewpoint neutral, but in-

stead discriminates against Krasno’s anti-animal testing and

pro-animal rights viewpoint. The terms the University se-

lected for filtering are terms that one would reasonably expect

to be used by individuals opposed to animal testing. That the

University also chose to program its keyword filters to hide

words and phrases that are unrelated to animal testing does

not change the fact that many of the keywords selected by the

University align significantly with Krasno’s anti-animal test-

ing and pro-animal rights viewpoint. And the University’s

admission that it has hidden an on-topic comment by Krasno

suggests that the University’s moderation decisions were

spurred not by the relevance of Krasno’s commentary to the

underlying posts, but by the views her commentary con-

veyed.

We also find the off-topic comment rule unconstitutional

because it is unreasonable. To assess reasonableness, we con-

sider the University’s justifications for its off-topic rule. Man-

sky, 585 U.S. at 13; Martinez, 561 U.S. at 687. Recall that the off-

topic comment rule, which affords the University’s social me-

dia staff discretion to moderate comments it deems off topic,

is rooted in the University’s public Social Media Statement

and was reaffirmed by the University in its interim guidance.

No. 22-3170 29

The University claims the rule keeps its comment threads un-

clogged, enabling its audience to interact with its posts and

the University to respond to questions and comments. We

agree this is a permissible objective given the communicative

purpose of the comment threads.

But lines drawn by the University to further this permissi-

ble objective must be reasonable. In other words, “the [Uni-

versity] must be able to articulate some sensible basis for dis-

tinguishing what may come in from what must stay out” of

its comment threads. See Mansky, 585 U.S. at 16. While the

University need not be perfectly clear and precise, an “inde-

terminate prohibition” enforced through sheer discretion

without “objective, workable standards” is not reasonable. Id.

at 21.

The University’s bare instruction in its Social Media State-

ment that comments may be removed if “off-topic” and its

discretion-based practice of enforcing that statement through

manual moderation decisions and keyword filters fail this

test. The University has neither clarified what it means to be

“off-topic” nor provided “objective, workable standards” to

guide its social media managers’ discretion. Id. To be sure, af-

ter this litigation began, the University’s interim guidance

provided staff a single example of what is “on vs. off topic”—

i.e., its Taylor Swift example. But even that limited guidance

refers to the “topic … of the page”—seemingly referring to the

webpages associated with the University’s accounts—which

conflicts with the University’s assertion in this litigation that

comments must relate to the topic of the “post.” Moreover, by

its own terms the guidance does not mandate consistent mod-

eration of off-topic comments, and the University admits

moderation decisions are discretionary. In sum, the

30 No. 22-3170

University has not supplied a “sensible basis for distinguish-

ing what may come in from what must stay out.” Id. at 16.

“It is ‘self-evident’ that an indeterminate prohibition car-

ries with it ‘[t]he opportunity for abuse, especially where [it]

has received a virtually open-ended interpretation.’” Id. at 21

(quoting Bd. of Airport Com’rs of City of Los Angeles v. Jews for

Jesus, Inc., 482 U.S. 569, 576 (1987)). The unreasonableness of

the off-topic comment rule and potential for abuse is ce-

mented by the University’s admission that it has hidden cer-

tain comments of Krasno that were on-topic comments. Such

missteps demonstrate that the University has not “respect[ed]

the lawful boundaries it has itself set.” Rosenberger, 515 U.S. at

829.

The off-topic comment rule is also unreasonable because,

“as implemented by the keywords, … it is inflexible and un-

responsive to context”—meaning it does not really operate as

an “off-topic” rule in the first place. Tabak, 109 F.4th at 637–38.

The keyword filters apply automatically to comments on the

University’s posts, regardless of a given post’s topic. In other

words, Krasno could not today renew her comment on the

University’s December 22, 2020, Instagram post about a dog

being treated for cancer, even though the University admitted

such a comment would be on topic. The record contains no

evidence that the University manually approves on-topic

comments initially hidden by its filters.

In short, the University’s inflexible and context-blind key-

word filters do not reasonably further its “off-topic” justifica-

tion when there is no way to know before a post is created

whether a given phrase will be on- or off-topic in relation to

the post. See id. at 636 (finding unreasonable a highly similar

off-topic comment rule that “consider[ed] words related to

No. 22-3170 31

animal testing categorically ‘off-topic’”). We therefore con-

clude that the University’s off-topic comment restriction, as

currently written and enforced against Krasno, is unreasona-

ble under the First Amendment.

III. CONCLUSION

For these reasons, we REVERSE the entry of summary

judgment for the University and REMAND with instruction

to the district court to enter judgment for Krasno consistent

with this opinion.

32 No. 22-3170

EASTERBROOK, Circuit Judge, dissenting. On Wisconsin is the

alumni magazine of the University of Wisconsin-Madison.

Some of its articles bear bylines of the staff, some of alumni,

some of faculty members, and some of third parties. No mat-

ter the author, each article is chosen by the editor. On Wiscon-

sin also carries letters to the editor, which appear at pages 6

and 7 of the current issue (Summer 2025). These letters discuss

the University, its sports teams, and its graduates. None men-

tions animal research.

The magazine’s contents are governmental speech. Arti-

cles and letters may be written and signed by private parties,

but the University as the publisher decides what to print. See

Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc) (student

paper is speech by the school if teachers act as editors, but by

the students if the school supplies only a financial grant). In

this respect an alumni magazine is no different from a news-

paper. The paper’s owner does not write the stories, but the

publisher decides what to print—something as true of the

news pages, and the letters to the editor, as it is of the editori-

als. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

(1974) (state cannot compel a newspaper to engage in “bal-

anced” coverage of political campaigns by running letters op-

posed to the paper’s views). No one believes that a byline on

a story or letter strips a magazine’s or newspaper’s editor of

the right to decide what appears.

A governmental body has the same right to speak as any

private entity. “When the government wishes to state an opin-

ion, to speak for the community, to formulate policies, or to

implement programs, it naturally chooses what to say and

what not to say. That must be true for government to work.

Boston could not easily congratulate the Red Sox on a victory

No. 22-3170 33

were the city powerless to decline to simultaneously transmit

the views of disappointed Yankees fans. The Constitution

therefore relies first and foremost on the ballot box, not on

rules against viewpoint discrimination, to check the govern-

ment when it speaks.” Shurtleff v. Boston, 596 U.S. 243, 251–52

(2022) (citation omitted). See also, e.g., Walker v. Texas Divi-

sion, Sons of Confederate Veterans, Inc., 576 U.S. 200, 208 (2015);

Pleasant Grove v. Summum, 555 U.S. 460, 467–69 (2009); Univer-

sity of Wisconsin v. Southworth, 529 U.S. 217, 235 (2000); Rosen-

berger v. University of Virginia, 515 U.S. 819, 833 (1995).

In Summum the Court held that a monument was govern-

mental speech, even though a private party submitted and

paid for the monument. That’s equally true of letters to the

editor. “[E]xpressive activity includes presenting a curated

compilation of speech originally created by others.” Moody v.

NetChoice, LLC, 603 U.S. 707, 728 (2024). See also id. at 728–33

(collecting cases), 781 (Alito, J., concurring). So too the selec-

tion of speakers to appear on public TV is a form of govern-

mental expression, no matter who produces or submits the

shows. Arkansas Educational Television Commission v. Forbes,

523 U.S. 666, 674 (1998). Similarly, the choice of floats in a pa-

rade represents the speech of the organizer, not of the clubs

that submit the floats, even though each float bears its spon-

sor’s name. Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, Inc., 515 U.S. 557 (1995).

Given the power of a magazine’s editor to choose which

letters (if any) to publish, there can’t be any problem if the

editor delegates this task to another member of the staff, with

guidelines to ensure that the staff follows the editor’s prefer-

ences. The editor might tell the staff: (1) letters collectively

cannot exceed two pages of the magazine; (2) letters must not

34 No. 22-3170

undermine the University (so no praise of the Ohio State foot-

ball team or requests for contributions to Northwestern); (3)

no letters on the topic of animal research, a topic the editor

wants to reserve for commissioned articles.

Delegation to a subordinate can’t matter to constitutional

analysis, nor does the physical format of the magazine. Sup-

pose On Wisconsin appears as a PDF file on a website in addi-

tion to a printed version. (It does. See onwiscon-

sin.uwalumni.com/issues.) Suppose the University also pro-

duces the magazine as a website with clickable links to arti-

cles, letters, and other materials. (It does. See onwiscon-

sin.uwalumni.com.) The “extra space” of a website might lead

the editor to relax Guideline 1—or maybe not, as the editor

might not want to change the balance between commissioned

articles and readers’ submissions (now apt to be called “com-

ments” or “posts” rather than letters). But the magazine’s ex-

istence as a website would not be likely to change Guidelines

2 and 3, nor would the Constitution compel the editor to

change those Guidelines. If Boston need not praise the Yan-

kees, the University of Wisconsin need not publicize disgrun-

tled graduates’ proposals that alums send their donations to

Northwestern. Nor does the fact that each letter (or post, or

comment) is signed compel the University to publish it. Like-

wise the fact that On Wisconsin does not publish the Guide-

lines would not compel it to print everything submitted. Au-

thors and editors need not explain their policies to the general

public.

Next step: Instead of hosting the magazine on its own

website, the University decides to host the magazine, or its

equivalent, on Facebook, and to use the Guidelines to select

which comments will appear there. This should not make a

No. 22-3170 35

constitutional difference. The University remains the speaker

and editor. It labels its Facebook page “the official voice of the

University.” Neither the University nor Facebook censors pri-

vate speech; any would-be speakers can say whatever they

want on their own websites, Facebook pages, other social me-

dia, or letters to the editor of the Madison Capital Times.

If there is to be a legal difference, the University ought to

have greater editorial latitude on Facebook. For Facebook is a

private entity, which controls what can be posted on its plat-

form and how content filters work. Publishing On Wisconsin,

by contrast, is a governmental operation from start to finish.

When the University uses the tools of social media, it is a state

actor (see Lindke v. Freed, 601 U.S. 187 (2024)), but as a state

actor the University remains entitled to select its own speech.

As long as “expressive activity includes presenting a curated

compilation of speech originally created by others”, Moody,

603 U.S. at 728, it is hard to see why the University’s selectiv-

ity is more problematic on Facebook than on its own website,

the PDF version of the magazine, or the paper version of the

magazine. Similarly, the fact that the Miami Herald has “more

room” on a website or Facebook page than in the printed pa-

per would not allow a state to compel the Herald to offer equal

time to all political candidates. The newspaper would retain

its right to promote its favored causes and candidates. Cf. Pa-

cific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1

(1986) (“extra space” in a billing envelope cannot be con-

scripted by a state to undermine the mailer’s political or eco-

nomic views).

Yet my colleagues conclude that the move from wisc.edu

or an alumni site to facebook.com flips the constitutional rule.

Instead of the editors being allowed to choose, the readers get

36 No. 22-3170

to compel the University to include their submissions. This is

so, the majority says, because Facebook is a “limited public

forum.” I don’t understand why the University’s site on Face-

book is any more a public forum than is On Wisconsin’s web

page, or for that matter the printed magazine. All of these are

outlets for the University to get its ideas across. Moving from

a site under the University’s control to a private one (Face-

book) should curtail the rights of the general public to compel

the University to include what it deems anti-University

speech.

Shurtleff is the Supreme Court’s most recent effort to dis-

tinguish public forums from governmental speech. For dec-

ades Boston allowed private groups to fly their flags over the

plaza of City Hall, but it balked at what one group called a

“Christian Flag.” In rejecting Boston’s argument that the

choice of flag was governmental speech, the Court empha-

sized that the city lacked any criteria for choosing which flags

could appear and that the tradition had been first-come-first-

served. That approach disabled the city from contending that

the flags represented its own speech. “[T]he city's lack of

meaningful involvement in the selection of flags or the craft-

ing of their messages leads us to classify the flag raisings as

private, not government, speech—though nothing prevents

Boston from changing its policies going forward.” 596 U.S. at

258. In other words, when a governmental body does have pol-

icies that shape the message being presented, the government

is entitled to claim editorial privilege to speak. And that is ex-

actly what the University of Wisconsin has done. Its policies,

designed to mold the views that appear on its Facebook page,

mean that the page is not a public forum under Shurtleff. The

University can curate the site to make the message its own.

No. 22-3170 37

My colleagues find it significant that the University uses

Facebook’s built-in filters rather than (or in addition to) hu-

man curation. That should not matter, any more than the del-

egation from On Wisconsin’s editor-in-chief to its staff should

matter. What does matter under Shurtleff is that the University

has policies about what can appear and what can’t. If these

policies are permissible in printed matter, where manual se-

lection is the norm, what makes these policies constitutionally

forbidden where computers do most of the work? As long as

people make the rules that the computers execute, the result

speaks for the University. Shurtleff tells us that having rules

about content is what separates an open forum from govern-

mental speech—and the University of Wisconsin assuredly

has rules about what can appear on its Facebook page. My

colleagues think these rules unreasonable. Maybe; maybe not;

my point is that the rules exist, and their very existence is what

nixes the assertion that the Facebook page is a public forum.

A university’s Facebook page, designed to portray the uni-

versity in a light of the university’s choice, is no more a public

forum than is the National Portrait Gallery, which is designed

to present great art (of the curators’ selection) rather than

kitsch. People for the Ethical Treatment of Animals, Inc. v. Gittens,

414 F.3d 23, 28 (D.C. Cir. 2005) (city can select among “party

animals” as street art even though all of them may be kitsch).

Just so, a public library chooses what to make available on the

shelves, and a decision to have Churchill’s six-volume The

Second World War does not compel it to offer Hitler’s Mein

Kampf as well. See Little v. Llano County, 138 F.4th 834 (5th Cir.

2025) (en banc). It does not matter that the curators and librar-

ians work under open-ended guidelines (“fine art”; “useful

books”), or that the curators and librarians are not the top pol-

icy makers (they would be the Board of the Smithsonian and

38 No. 22-3170

the legislature of the jurisdiction paying for the library). Using

those details to declare the museums and libraries are public

forums would prevent them from fulfilling their missions.

The constitutional point is instead that the museum and the

library do not regulate anyone’s speech and reading; kitsch

and Mein Kampf are widely available. Nor would it make a

difference if a visitor hangs a portrait that is removed by the

Portrait Gallery’s director (parallel to removing comments

that find their way onto Facebook).

My colleagues’ approach has support from People for the

Ethical Treatment of Animals, Inc. v. Tabak, 109 F.4th 627 (D.C.

Cir. 2024), which declares that a Facebook account established

by the National Institutes of Health is a “limited public fo-

rum” even though it implements access and topic controls

through keyword filters. I do not find the court’s analysis con-

vincing. The panel in PETA v. Tabak did not mention the same

circuit’s contrary approach in PETA v. Gittens. More im-

portant, it did not discuss Shurtleff, Moody, or many of the

other decisions on which I have relied. Summum received a

citation, but only in passing—no analysis. The panel did not

try to explain why a website differs from a newspaper or mag-

azine published by a governmental body. The decision seems

to be more a response to the Institute’s concession that the Fa-

cebook site is a public forum than it is an independent analy-

sis.

Tabak does mention, also in passing, Knight First Amend-

ment Institute v. Trump, 928 F.3d 226 (2d Cir. 2019), rehearing

en banc denied, 953 F.3d 216 (2020), vacated as moot under

the name Biden v. Knight First Amendment Institute, 141 S. Ct.

1220 (2021). Knight held that a public official who posts or dis-

cusses official policy on social media is constitutionally

No. 22-3170 39

forbidden to use the sites’ content-moderation features, such

as limits on who may respond and restrictions on off-topic

posts. This decision lacks precedential force, given the vaca-

tur, and has the same problem as PETA v. Tabak in explaining

why public officials are not entitled to express their views by

curating (and sometimes excluding) words penned by third

parties. Judge Park’s dissent from the denial of rehearing en

banc in the Second Circuit (953 F.3d at 228–31) exposes some

of these problems, and Knight has taken its lumps from aca-

demic commentators who wonder why forum analysis is ap-

propriate when a private actor controls the site. E.g., Noah

Feldman, Appeals Court Asks Wrong Question in Trump Twitter

Blocking Case, which appeared at bloomberg.com on July 9,

2019. Twitter (now X), the main forum in Knight, demon-

strated its control by excluding President Trump entirely,

which scotches any idea that it was a “public” forum con-

trolled by the government. The Supreme Court did not ad-

dress any substantive issue in Knight, given intervening moot-

ness, but this is not a good reason for us to follow the Second

Circuit down the rabbit hole.

PETA v. Tabak and Knight lack support in the Supreme

Court’s decisions. They cannot be reconciled with Moody,

Summum, Hurley, Little, PETA v. Gittens, and many other de-

cisions, which hold that choosing what private speech to pre-

sent is a form of governmental speech. We should stick with

Moody (“expressive activity includes presenting a curated

compilation of speech originally created by others”) and not

be led astray by flawed decisions of the D.C. and Second Cir-

cuits.

Given my colleagues’ recognition that the letters section of

On Wisconsin is not a public forum, the University may

40 No. 22-3170

respond to today’s decision by closing all comment options

on Facebook, vindicating its status as “the official voice of the

University”—or manually vetting all comments and posting

only those that the editors like. Neither response would pro-

mote the plaintiff’s goals, and both would harm other alums

whose views would disappear.