Madeline Krasno v. Jennifer Mnookin

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 1, 2025
• Docket: 22-3170
• Status: Published

Opinion

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.