University of Wisconsin-Madison Censored Animal-Rights Activist on Instagram and Facebook–Krasno v. UWM

August 5, 2025 · by · in Content Regulation

Krasno is a critic of University of Wisconsin-Madison’s treatment of animals. She commented on UWM’s Instagram and Facebook posts. UWM’s social media managers hid her comments manually; some of her comments were blocked by UWM’s keyword filters. Prior blog post.

The court enumerates the keywords UWM filtered:

Instagram: #freebabycocoa, #releasecornelius, @peta, Cornelius, WNPRC, 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, vivisection, you guys are sick.

Facebook: peta, macaques, animal laboratories, testing on animals, animal testing, barbaric, wnprc, primate, primates, experimenting on, research animals, cruelty, torturing, torture, vivisection, monkeys, and experimenting.

[As the majority notes later, the censorial intent of the blocked keywords is unmistakable.]

Eventually, UWM restricted Krasno’s Instagram account (which automatically hid her comments) “because she had a consistent pattern of off-topic comments.” UWM later lifted this restriction.

“Krasno argues the University’s off-topic comment rule—as implemented through keyword filters, an Instagram account restriction, and manual moderation of individual comments pursuant to the University’s Social Media Statement and interim guidance—is unconstitutional as applied to her.” The majority agrees. Judge Easterbrook dissents in a terrible opinion.

Majority Opinion

Standing

She claims the University is barring her speech from the interactive portions of its social media pages by enforcing its off-topic comment rule in a discriminatory manner. That is a cognizable injury.

Krasno has demonstrated that her comments have been suppressed by the University’s implementation of its offtopic comment rule in the past, that she wants to continue commenting 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 imminent injury.

Sovereign Immunity

Ex parte Young permits Krasno’s request for an injunction against the University’s use of keyword filters, which qualifies as prospective relief against an allegedly ongoing violation of federal law. Likewise, Krasno may seek injunctive relief 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 comments.

However, she cannot proceed regarding the Instagram account restriction because it’s already been lifted.

Government Speech

The majority says that third-party comments to UWM social media posts are private speech, not government speech.

the University is not actively involved in the selection of the comments displayed on its comment threads, as the University does not sift through submissions of comments to feature only those comments that “present[ ] the image of the [University] that it wishes to project.” Were Moll or another social media moderator to screen all comments prior to publication and then publish only those comments that aligned with the University’s preferred image, the comments could more reasonably be attributed to the University. But that is not how the comment threads operate. Comments are published without the University taking any action, such that “the degree of government involvement” in shaping the comments’ messaging is nearly imperceptible.

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. The filters do not evaluate the substance of a comment to display only comments that convey University-approved messages. 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 meaningfully or actively involved in selecting comments or shaping a comment’s message, they do not supply a basis on which we can find the comments constitute the University’s speech….

the University’s minimal involvement in shaping the comments on its comment threads weighs against finding that the comments constitute the University’s speech….

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.” The speaker is the commenter. Should the University comment within a comment 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 person 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 University.

To me, the majority uses a lot of words to express a simple concept. When third parties comment on a social media post, their content is speaking for themselves, not the university. This seems so obvious, I don’t even understand how it could debatable. Perhaps at some point a university might filter the comments so heavily that they convert from being private speech to government speech, but that should be an extreme edge case–nowhere close to the facts at issue in this case.

Unfortunately, the majority’s explanations of its reasoning leaves a lot to be desired.

First, it uses the active/passive distinction, which never makes sense because passive editorial involvement is an oxymoron. Also, from my perspective, it wouldn’t matter even if the university had more than “minimal involvement” in managing the user comments. It should be an extreme degree of involvement to change the content’s character, not some kind of sliding scale.

Second, the prescreening/post-publication review dichotomy also is dubious. There are many ways to exercise editorial control, and I’m not sure why the majority prioritizes one approach over the others.

Third, basing a constitutional test on how the public perceives the content source is a shaky legal foundation. It’s likely that readers attribute the users’ comments as the simultaneous responsibility of the poster, the university, AND the social media service. Now what?

[Note: Section 230 has a long history of classifying and making distinctions between first-party speech and third-party speech. In general, per 230, third-party content remains third-party content throughout its life, subject to truly exceptional interventions like a service’s editoral revisions that change the submitted content’s meaning to add the legal problem. However, Section 230 doesn’t help the court because the government speech doctrine is constitutional law, and legislative statutes can’t override it].

Forum Characterization

Following the Tabek case, the court says social media comments to government-operated social media accounts are limited public fora:

The University’s Social Media Statement and efforts at enforcing that statement reflect that the University did not intend to create a designated public forum without limits on discussion, but instead intended to open the comment sections for the discussion of certain subjects—principally, those that relate to its posts….

only that the comment threads attached to the University’s social media posts—and not social media platforms more broadly—are limited public forums.

Limited Public Forum Analysis

UWM censored Krasno:

We find unconstitutional the University’s off-topic rule as applied to Krasno because it is not viewpoint neutral, but instead discriminates against Krasno’s anti-animal testing and pro-animal rights viewpoint. The terms the University selected 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 testing 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 conveyed.

The majority also says UWM’s off-topic comment rule is unreasonable. It’s OK to have an off-topic rule to keep the conversation uncluttered, but the policy has to explained in more detail and precision than a policy containing a single phrase banning “off-topic” comments. Implementing an off-topic policy can’t be done by dumb keyword filters, either, because that’s “inflexible and context-blind.”

Judge Easterbrook’s Dissent

[Judge Easterbook’s dissent is terrible. If it makes you angry, you are not alone. I’m going to spend a disproportionate amount of words on the dissent because Judge Easterbrook’s views will surely garner interest from the conservative SCOTUS justices if this case gets appealed there.]

Continuing his decades-long quest to negate Internet Law as a separate field of inquiry, Judge Easterbrook remarkable thinks that social media comments are legally identical to letters to the University of Wisconsin alumni magazine. Putting aside the question of whether alumni magazine letters are properly characterized as “government speech,” the analogy is fundamentally misguided. As the majority explained, there is a major qualitative difference in the degree of editorial control that magazine publishers exercise compared to social media comments. Even if government agencies prescreened online comments (if the social media technology permits them), I would firmly resist the idea that any accepted comments have become the “government’s speech.”

Judge Easterbrook’s expansive views of what constitutes “government speech” takes him to the deep end of the censorship pool:

when a governmental body does have policies that shape the message being presented, the government is entitled to claim editorial privilege to speak. And that is exactly 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….

the University has policies about what can appear and what can’t. If these policies are permissible in printed matter, where manual selection is the norm, what makes these policies constitutionally forbidden where computers do most of the work?…my point is that the rules exist, and their very existence is what nixes the assertion that the Facebook page is a public forum.

Say what? Judge Easterbrook seems to be saying that so long as a state actor has “policies that shape the message being presented,” those policies–simply by virtue of their existence–instantly become completely insulated from any Constitutional review. So, for example, if the UWM social media managers adopted a policy that they would only allow white supremacist comments to appear on its social media pages and blocked all other comments, Judge Easterbrook seems to be saying that the university has the unrestricted freedom to “curate the site to make the message its own.” No…just no. This is masking and normalizing flat-out government censorship.

As another example, Judge Easterbrook’s “logic” would indicate that a city council can pick and choose its speakers at an open mic session, so long as it has articulated a policy about what comments are permitted. So a city council could say that it will only accept comments in favor of a building project, and cut off the mic for any negative constituent comments, because the city council adopted an editorial policy for the open mic comments, which turns all of the citizen comments into government speech and thereby instantly becomes immune from constitutional challenge. No, this makes absolutely no sense.

Fortunately, the majority calls this out:

Were we to accept the dissent’s application, 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.

Judge Easterbrook wasn’t chastened at all. For example, he says “Neither the University nor Facebook censors private speech; any would-be speakers can say whatever they want on their own websites, Facebook pages, other social media, or letters to the editor of the Madison Capital Times.” This is a non-sequitur. The availability of other speech outlet is sometimes relevant to some censorship tests, but it’s misinvoked here. In particular, when the state actor blocks comments to a social media post, it blocks the commenter’s access to where the discussion is most visible to the readers.

Speakers always have alternative speech venues to share their message, but this fact alone is rarely significant. Misused, it can become a one-note justification for all forms of government censorship.

Judge Easterbrook also says:

the University ought to have greater editorial latitude on Facebook. For Facebook is a private entity, which controls what can be posted on its platform 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, but as a state actor the University remains entitled to select its own speech

Say what? The government can “select its own speech,” but it must do so in compliance with many constitutional and statutory restrictions. Due to the First Amendment, some of these restrictions could never be extended to private publishers like Facebook. Yet, somehow, Judge Easterbrook reaches the baffling conclusion that the government has even more press freedoms than the…press…?

Judge Easterbrook continues:

Instead of the editors being allowed to choose, the readers get 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 Facebook 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 (Facebook) should curtail the rights of the general public to compel the University to include what it deems anti-University speech.

Another misguided analogy. Comment submitters cannot “compel” the University to include their submissions. They can only require the University to exercise its “editorial discretion” in Constitutionally compliant ways. As discussed below, UWM can still remove off-topic comments–this is the opposite of “must-carry.”

But yes, government-run speech venues must permit more third-party content than private publishers, and that can look a lot like “must-carry.” That’s literally the point of the forum doctrines–to force the government to tolerate some speech on its venues than it would prefer.

Concluding Thoughts

I’m going to say something that doesn’t feel radical but maybe it is: government censorship is bad. Every government since the beginning of time has desired greater censorship to entrench its power. It allows the government to take our tax dollars and diminish our ability to criticize it and hold the government accountable. As a result, government censorship must be fought at every instance. Don’t allow anyone to normalize government censorship or to play jurisprudential tricks that lead to obviously wrong conclusions.

On the plus side, Judge Easterbrook expressly rejects must-carry obligations on publishers and even rejects mandatory editorial transparency. For example, he says: “Authors and editors need not explain their policies to the general public.” AMEN! Now, would he reject a state law mandating consistent content moderation and compelled disclosures of editorial policies of private publishers, like the obligations in the Florida and Texas social media censorship laws? Or does his vocal and vigorous support for publishers’ freedom actually depend on whether the legislation was enacted by a MAGA legislature or a woke legislature?

Implications

Animal rights activists are notorious conversation-derailers. I’m a 40+ year vegetarian (now fully vegan), and even I find the animal rights activists annoying. They are not shy about hijacking a conversation to steer it towards their agendas. Aggressive forms of protest can turn off the people who might otherwise be persuadable. Universities are notorious targets for their activism. Universities deserve critical scrutiny for their animal rights policies, but not every university function is the right time or place for that activism.

When can government accounts limit off-topic comments?

Krasno only challenged UWM’s “off-topic” policy. The court did not address any other aspect of UWM’s social media policy. Typically, government’s social media policies nominally provide the universities with ample discretion to moderate content. (Whether doing so is constitutional remains unclear, and the majority didn’t purport to answer it). But certainly every government operating a social media account wants–and needs–the ability to moderate off-topic comments (and spam comments and other conversation derailers).

The majority seems to say that government actors can moderate off-topic contents so long as the policies are reasonable, viewpoint-neutral, and sufficiently detailed that they don’t allow for secret censorial biases. The single word “off-topic” is an insufficient policy, and the off-topic policy cannot be encoded into banned keywords.

This defines a narrow path for moderating off-topic comments. However, due to the risks of getting it wrong, governments moderate “off-topic” social media posts at their peril.

Will government accounts shut down comments entirely?

Judge Easterbrook predicted:

Given my colleagues’ recognition that the letters section of On Wisconsin is not a public forum, the University may 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 promote the plaintiff’s goals, and both would harm other alums whose views would disappear.

Again, note Judge Easterbrook’s twisted logic. So now he’s worried about “alums whose views would disappear.” However, his everything-is-government-speech position would lead to other alumni’s views being selectively disappeared by governments. So it’s not like alumni comments won’t disappear. We just have to choose how they will disappear: (1) the government shutting down all comments, or (2) the government picking-and-choosing comments that flatter the institution and shutting down critical comments. Judge Easterbrook laments only the former and valorizes the latter, while the selective censorship to me seems one million times worse because it lets the government dictate the narratives and perpetuate lies.

But is he right? Will government actors turn off social media comments? I have long predicted this will be the case, for two reasons. First, most government actors don’t have the time, energy, or appetite for the workload and legal risks of moderating comments. It’s just not worth it. Second, governments are LOVING the ability to do one-way broadcasts of their propaganda. Why tolerate online criticism when you can blast out how great you are without rebuttal? This one-way broadcasting is especially powerful with the demise of independent journalism to contextualize and call out any misstatements. Now, the government has the perfect tool to shovel lies at their constituents without meaningful accountability.

What about Knight v. Trump and Lindke v. Freed?

The majority did not cite either Knight v. Trump or Lindke v. Freed, two of the flagship cases on government operation of social media accounts. Both cases turned on whether the account was operated by the government or in the accountholder’s personal capacity. That wasn’t an issue here–the accounts in question were clearly government-operated accounts.

However, if Judge Easterbrook’s views prevailed, then any distinction between private accounts and government-operated accounts would be moot, and both the Knight and Lindke cases would be irrelevant. Per Easterbrook, a government-operated account would have equal capacity to censor comments (so long as it had a policy authorizing that censorship) as a person operating a private account (per Easterbrook, maybe even more). Because his argument would sub silento moot dozens of precedent cases, including two Supreme Court cases, it’s another sign of how wrong Easterbrook’s dissent is.

Government’s adoption of private speech venues.

The majority opinion doesn’t turn on the fact that UWM was posting to a speech venue operated by a private publisher, but there are many complicated issues about the interplay between Facebook/Instagram’s content moderation and the government’s own content moderation. If the Facebook/Instagram content moderation blocks constitutionally permitted content, now what? For example, if Facebook automatically hid any comments containing the word “PETA” (a dumb example, but work with me) so that Krasno couldn’t comment on UWM Facebook posts, what result? Ultimately, it may not be possible for governments to operate social media accounts (other than broadcast-only accounts) on private speech venues, because the governments can’t override the baseline content moderation even if it’s inconsistent with the government’s constitutional obligations.

Case Citation: Krasno v. Mnookin, 2025 WL 2180825 (7th Cir. Aug. 1, 2025). Majority opinion. Dissent.

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