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October 24, 2023+Bryan Gentry
+Viewpoint Diversity+Campus Policy+Public Policy

Can Public Universities Censor Their Social Media Comments? The Supreme Court May Have Guidance Soon.

From the front steps outside my public university office, I see two street corners that often attract demonstrators. At one corner, a man often sits in a camp chair with religious tracts. One block down, a group sometimes offers pocket-sized copies of the New Testament.

Students almost always ignore them and walk past staring into their smartphones.

The sight reminds me that the public square still exists in the physical world, but it is often trumped by the virtual one. Therefore, First Amendment rights are as vital online as they are on the street. The Supreme Court affirmed this in its unanimous response to Packingham v. North Carolina: “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”

But a 2020 report by the Foundation for Individual Rights and Expression (FIRE) showed that public universities often censor comments on their social media channels, using Facebook filters to weed out comments with profanity or custom lists of offending words. FIRE says that filtering or deleting comments amounts to illegal government censorship. But university communications staff who deal with those comments daily often argue the opposite.

I have long contemplated this question as an advocate for free speech and as a communications director who works with university social media. I know that censorship on social media stifles viewpoint diversity and makes it more difficult to hold institutions accountable. But I also know the agony of having my work diluted and complicated by off-topic, out-of-control comments from trolls, hecklers and bots.

Neither censorship nor unhinged comment sections fulfill a university’s mission to seek knowledge and truth. Therefore, to support free speech and market our universities, we must strike a careful balance that begins with knowing the place that our social media channels play in the public square.

What Kind of Forum is a University Social Media Page?

According to FIRE’s report, a public school’s social media comments section is a “designated public forum,” a place the government sets up for speech without defining a specific purpose. This is how a district court classified former President Trump’s Twitter account when it ruled that he could not block Twitter followers.

But when the Supreme Court turned down the opportunity to review the Trump Twitter case, Justice Clarence Thomas pointed out the need to reconsider the classification. “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,” he wrote.

The court will do just that at the end of this month when it considers two cases involving public officials who blocked constituents from their social media pages. Neither case involves a university, but both ask when a public official’s social media channel constitutes a public forum. The court’s ultimate ruling may provide further guidance.

To explore several ways the court could classify our public university social channels, join me for a walk around a metaphorical town square.

Public Square or a Public Meeting

Imagine a town square at the corner of Main Street and Commerce Avenue. Near this intersection you find a bank, a newspaper, the downtown branch of a college and Town Hall. There’s also a billboard run by an ad agency.

Town Hall’s digital marquee announces the next town council meeting, shares news about civic activities and congratulates the high school softball champs. In the town square, political candidates launch their campaigns, protestors gather with signs and sandwich boards, and preachers pass out pamphlets.

This is a “traditional public forum,” where speech is virtually limitless.

Suppose that Town Hall’s digital marquee is the content a university publishes on social media, while the public speakers are internet users leaving comments on those posts. With rare exceptions, the town can’t kick someone out of the public square, and the university can’t delete comments on its social media.

For example, for years PETA has protested Texas A&M’s use of dogs in muscular dystrophy research by posting comments on the university’s social media channels. The university deleting and filtering those comments has resulted in multiple lawsuits.

But let’s return to the public square and go into Town Hall for the weekly council meeting, which is a better metaphor for university social media. A Town Council meeting is a “limited public forum,” meaning the town can regulate some aspects of speech.

As FIRE states in its report, “restrictions need not be content-neutral, but must be viewpoint-neutral.” Speech rules must also be reasonable and cannot exclude individuals or types of speech that the forum is for. A 2008 ruling from the Federal Fourth Circuit Court of Appeals affirmed that a public body may forbid personal attacks, off-topic remarks and overly long comments in meetings.

Like the town council meeting, university social channels have an agenda. Texas A&M could have argued that deleting PETA’s comments was just part of maintaining order in a public meeting — in this case, a commencement with an agenda of celebrating graduates, not soliciting comments on university research policy. It’s like asking an off-topic, repetitive speaker to leave the Town Council meeting, but the person remains free to go outside and continue their speech; PETA can still post elsewhere on Facebook.

Of course, the school must remain viewpoint neutral. All off-topic comments (even one praising the university’s use of animals in research) would have to be removed, otherwise it may amount to viewpoint discrimination.

A Class Discussion or an Alumni Magazine

Stepping out of the town council meeting, let’s walk around the public square until we reach the downtown branch of the college. Inside, we find a professor conducting a philosophy class.

They have a lot of open dialogue, but not limitless free speech. The professor guides the discussion to keep it on topic and insist that students provide reasonable evidence for their claims. A bit of professorial censorship empowers the university’s truth-seeking, teaching mission by preventing students from hijacking the discussion for their own causes.

Next door is the local newspaper. It’s a staunch champion of the First Amendment, but still it does not print every letter to the editor it receives or pursue every story pitched by public relations departments (much to my chagrin). It might even decline to run ads that violate its policies.

Perhaps instead of a public square or a public meeting, a university’s social media channels are like an academic discussion, because much of the content concerns the research of faculty and students, or a newspaper with editorial discretion.

Similar arguments arose in a lawsuit against the University of Wisconsin-Madison. A UW-Madison graduate named Madeline Krasno sued because her alma mater had removed or blocked her comments criticizing its treatment of research animals.

In November 2022, a judge dismissed the lawsuit, stating that UW-Madison’s social media channels are a nonpublic forum that could restrict off-topic speech. “There is nothing unreasonable about the University preferring that the interactive comment threads have the look and feel of a brown bag lunch discussion rather than its open-air Library Mall at the foot of State Street," he wrote.

Krasno appealed the decision, and the Seventh Circuit recently considered whether to accept the appeal. One judge compared comments to content in an alumni magazine: “The letters to the editor... are the speech of the letter writers. But the university as publisher, as editor, chooses what will be there.”

Imagining the comments section as an academic discussion or an alumni magazine raises more justification for university social media managers to moderate comments in their channels. However, if a comment is deleted there, the comment can still be published, and go viral, elsewhere on the internet. The public square is still open.

A Billboard Ad

Let’s consider one more metaphor. From the town square, you look up and notice that a nearby university recently rented the billboard to advertise its upcoming open house. But a snarky graffiti artist has painted additional words: “FOR WHITES ONLY.”

Not only is the billboard’s message incorrect now, but it’s also offensive. The graffiti creator’s speech has interfered with the university’s ability to fulfill a mandate to recruit students without discrimination. In real life we call it vandalism, and the university and/or ad agency can remove the offending paint.

We university communications professionals see our social media posts as part of our advertising. We expend time, energy and advertising dollars to draw readers to this content. If unhinged comments are permanently attached to our messages, then we cannot publicize our comments without also publicizing the speech of private individuals. Comments like the billboard graffiti completely nullify the government purpose for creating such an ad.

"Giving government employees the power to decide who gets to speak and what views may be expressed can have a chilling effect and decrease viewpoint diversity. I don’t want that power for myself."

Just Because We Can Does Not Mean That We Should

We’ve now considered five metaphors for a public university social media page: A public forum, a public meeting, an academic class, an alumni magazine, and a billboard advertisement. With these in mind, I hope you can see why universities might need to moderate comments, and might be allowed to do so without violating the First Amendment.

Managing comments can help fulfill a university’s mission to seek and disseminate truth by guiding discussions from veering off topic, or limiting comments not supported by evidence. If we don’t allow students to interrupt a philosophy class with a Viagra sales pitch, why would we allow bots to do so on our social media?

FIRE’s report on university censorship acknowledges that universities might need to remove some comments, and it provides pointers for complying with First Amendment law in the process. The recommendations include transparent rules, such as publicizing any blacklisted words, and consistent, viewpoint-neutral enforcement.

But even with FIRE’s carveout, deleting or blocking social media comments may still be unwise social media policy. In fact, I suggest that universities should craft comment policies that rarely, if ever, call for a comment to be removed.

Here is why: Any social media comment policy is going to be open to interpretation and will require a government agent to make a judgment call about which messages deserve public dissemination and which do not. Often, this agent is an underpaid, overworked social media manager without a legal background.

Sometimes the call is easy — Viagra sales are off topic — but others are more complicated. Where one reader sees “hate speech,” another sees good-faith commentary on a new university policy regarding transgender issues or religious groups.

Where one reader sees off-topic spam, another sees someone holding the institution accountable for insufficient safeguards protecting animals in laboratories.

A statement that aligns with your political views might seem benign, while the opposite view sounds like political advocacy threatening violence.

Giving government employees the power to decide who gets to speak and what views may be expressed can have a chilling effect and decrease viewpoint diversity. I don’t want that power for myself.

A Better Response than Censorship

Besides, deleting comments is considered bad social media policy, even for private entities that are not bound by the First Amendment. The modern marketplace knows when an organization tries to escape accountability through censorship. Prospective students or faculty members with heterodox views may shy away from campuses if they detect such censorship.

Rather than delete comments, it is better to ignore them or, when needed, acknowledge and engage with them. Numerous companies and universities have repaired longtime wrongs when social media brought misdeeds to light. Other times, we have to dial back on social media while a firestorm passes.

Regardless of the situation, university communications professionals go back into the work of developing content that builds trust and enhances the university’s reputation. Rather than hit “delete” on uncomfortable or unflattering topics, we must grapple with negativity in a way that makes the institution stronger. That’s our job.

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