A federal judge’s ruling regarding a lawsuit against the University of Wisconsin found that a UW alumna was not allowed to post comments regarding animal rights under UW social media posts as part of her First Amendment right to free speech.
Madeline Krasno sued the University in 2021 after comments she made on UW’s social media pages had been deleted. The comments pertained to the treatment of animals during her time as an animal caretaker in 2013 at UW Labs. She claimed that by deleting her comments, the university was infringing on her first amendment rights.
The university said they deleted the comments because they were “off topic” to the subject of the post, not because of her views on animal testing.
On Nov. 2, U.S. Magistrate Stephen Crocker dismissed the case, stating that the university reserved the right to delete comments since UW’s social media pages are considered a “nonpublic forum” which is a forum for public speech that is neither traditional nor assigned for public forum.
The First Amendment of the Bill of Rights provides Americans with the freedom of speech, religion, assembly and press.
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The designation of different forums regarding the first amendment goes back to the Public Forum Doctrine, an idea tied to Hague v. Committee for Industrial Organization, in which the Supreme Court ruled that banning a group of people from holding political meetings in a public place violated the freedom to assemble under the First Amendment.
UW Professor Robert Dreschel, who specializes in knowledge of the First Amendment, said that when it comes to social media and its impact on the first amendment there is no definitive answer at this point, Dreschel said.
“There are certain places controlled by the government that, historically, everybody would agree have been places open to and welcoming to a wide variety of speech, of symbolic speech, of protest, speech and so on and it’s in these areas that speech occurs in these forums,” Dreschel said.
During a 1983 Supreme Court case, Perry Educ. Ass’n v. Perry Educators’ Ass’n, resulted in the designation of three separate, overarching types of forums — traditional public forums, designated forums and nonpublic forums.
The traditional forum is one that would be expected in a public park or on the street, with the traditional understanding of freedom of speech. The only ways in which the government can restrict speech in a traditional forum would be through time, place and manner restrictions but nothing beyond that.
The second type of public forum is a designated public forum, in which the government allows for a public space, owned by the government, to be opened up to the public and used as a platform for public expression.
All speech that occurs in this space is therefore protected by the first amendment as long as the forum is open. Within the designated forum group, however, there is a subgroup called “limited forums” in which the government may prevent certain groups of people from joining as long as they are not discriminating based on viewpoint.
An example of a limited forum could be a funding committee that is meeting to discuss municipal funding. Based on the rules regarding limited forums, it would be constitutional to prevent people who are not on the committee from joining the forum, but it would not be constitutional to prevent someone based on their religious affiliation.
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Nonpublic forums are forums that take place in spaces that are not spaces for traditional public forums or a designated forum.
In nonpublic forums, the government can restrict speech as long as the restriction is reasonable and does not discriminate against the speaker based on their viewpoint. Examples of physical spaces where a nonpublic forum may take place are courtrooms or courtroom lobbies, airport terminals and polling places.
When the public forum doctrine was first introduced, forums happened in physical places. Courts and litigants are still struggling with a host of questions involving social media that have never come up before, according to Dreschel.
Things become a bit more nuanced when we jump to social media, UW Professor Howard Schweber said.
“Cyberspace does not fit neatly into the classic models of forums. And so it’s often very hard to describe the consequences of what happens in cyberspace,” Schweber said.
Because of the complications that cyberspace brings to the conversation of the first amendment and its applications, outlining where the government does and does not have authority in free speech becomes difficult, Schweber said.
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“A really good example is a middle school that can have rules against bullying on the playground,” Schweber said. “But can they have rules against bullying in cyberspace outside of school hours, given the consequences of that bullying may be very harmful to students in the school? There’s no clear answer to that question.”
