Court To Public University: Yeah, It’s A 1st Amendment Problem When You Delete Comments You Don’t Like

from the being-governed-by-Aggies dept

Just a somewhat periodic reminder: publicly-funded colleges are government entities. Almost every public university is. Sometimes, they seem to forget what they are and act in ways governments can’t — not without violating rights.

That inability to remember constraints imposed on it by inalienable rights is causing problems for Texas A&M University. And its arguments in court aren’t doing it any favors. A perennial protagonist has gone after the university in both regular courts and the court of public opinion. Its latter court appearances has prompted two civil rights lawsuits, detailed here by Eric Goldman.

Texas A&M (TAMU) does medical experiments on dogs. PETA objects to these experiments and commented on TAMU’s social media pages. TAMU blocked PETA, which led to a prior lawsuit that settled. The settlement terms included: “TAMU would not exercise viewpoint discrimination against PETA, its supporters, or members when administering its Facebook page; nor would it set automatic or manual blocking filters on PETA’s comments made to TAMU’s Facebook page, provided that TAMU could remove comments not in compliance with its Facebook Usage Policy.” Was there ever any doubt that this “resolution” would create further conflict?

Now, it’s well-known PETA courts controversy, routinely engages in highly performative anger, and otherwise often acts like a nuisance, rather than a public interest group. Every now and then, it manages to raise a valid issue.

And it’s not wrong here. And the settlement it obtained was never going to be enough to satisfy the demands of the Constitution.

A second lawsuit followed. PETA claims the settlement still allows the university to violate its First Amendment rights. The judge handling this case agrees with PETA, at least as far as procedural things are concerned. The lawsuit can move forward.

The judge is far less impressed with Texas A&M’s arguments in support of its motion to dismiss. Theoretically, A&M is the adult in the room. But you’d never be able to tell that from its terrible defense of ongoing censorship (real or theoretical) of PETA’s comments.

The court says [PDF] PETA has raised valid issues. This isn’t to say PETA will win. But it does definitely say Texas A&M can’t win — not with this settlement and not with these horrendous arguments.

The issue arises from comments PETA and its supporters added to a remote livestream of the school’s May 2020 graduation ceremony. PETA alleges the university [TAMU] deleted 137 of its 553 comments (most at Facebook, a few at YouTube).

The person representing the school is President M. Katherine Banks, named directly as the defendant in this follow-up suit. The school (through Banks) argues there’s no alleged injury, no ongoing injury, no potential future injury, and that the settlement made this all not worth arguing again in court.

First, Banks argued she shouldn’t even be named as a defendant, since it was her predecessor who crafted the inadequate settlement now being sued over. The court says she’s still on the hook. After all, lawsuits against other government agencies don’t simply end because the named defendant is no longer in office. The responsibility lies with the head of the government entity, whoever that currently happens to be.

Despite the inordinate number of pages devoted to this issue, which include a sur-reply, an advisory, and a reply to that advisory, I have no trouble finding that President Banks has a sufficient connection to the enforcement of TAMU’s social media policies. All that is required is that PETA allege enough facts that I can plausibly infer an enforcement connection. It is undisputed that President Young, TAMU’s previous President, executed a settlement agreement, in his official capacity, regarding the enforcement of TAMU’s social media policies against PETA. This action makes it entirely plausible that President Banks, as President Young’s successor, has at least “some connection” to the challenged behavior in this litigation. That is all that is required of this “straightforward inquiry.”

The court goes on to note that Banks provided plenty of precedent to support her argument, but none that actually supported her argument in this context. There is no precedent that agrees with the current university president’s argument she cannot be sued as the putative head of the entity engaging in the alleged violations.

The idea that a university’s head is an appropriate party for challenging the university’s actions seems so unobjectionable in a variety of contexts that I have not located cases holding otherwise, and President Banks certainly has not pointed me toward any.

The inability of TAMU’s president to find supporting precedent continues. Banks claimed no Constitutional injury in terms of future posting by PETA can be alleged because PETA failed to provide the school with details about its planned future actions in regards to TAMU social media content. Ridiculous, says the court. The allegation is enough to satisfy PETA’s standing requirements in this case. The arguments raised by Banks range from insipid to dangerous. If the university held off on deletion of PETA comments until after litigation concluded, but resumed shortly thereafter, what is even the point of having a court system?

[P]laying President Banks’s argument out to its logical conclusion shows how misguided it is. Were PETA to repost its original comments to TAMU’s social media sites and TAMU to delete them again, PETA would have the same standing it does now. But if—as is much more likely to occur given that litigation is ongoing—PETA were to repost its original comments to TAMU’s social media sites and TAMU did not delete them, I would nevertheless find that PETA has standing.

As the Supreme Court has repeatedly held:

It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.

You can’t escape a lawsuit simply because you choose to not do the thing prompting the lawsuit temporarily. You cannot escape a lawsuit by making temporary concessions in hopes of eluding injury claims. Once you’re in it, you’re in it. Prove your case or face judgment.

PETA also claimed the limitations of the original settlement, along with TAMU’s refusal to engage outside of litigation, makes it unlikely PETA could be fully “restored” without the intervention of the court. President Banks claims otherwise. And, wow, is she wrong.

President Banks also argues that PETA’s restoration injury is not sufficiently imminent because it is premised on “three contingencies:

(1) individuals will watch TAMU’s over 500-day-old videos; (2) these viewers will read the comments posted to the videos; and (3) these viewers would have seen PETA’s deleted comments (if they were restored) while missing PETA’s many other non-deleted comments.” The only case President Banks cites in support of this metaphysical argument is Glass, 900 F.3d 233, a case as inapposite in this context as it was in the context of PETA’s posting injury.

A rights violation is still a violation whether or not only the entity suffering the violation notices it.

Just as a falling tree produces vibrational waves in the air, viewpoint discrimination offends the Constitution regardless of whether anyone is in the hypothetical forest to hear (or, in this case, read) it. Phrased differently, it does not matter whether anyone wants to read PETA’s comments; PETA has a right to put them in TAMU’s public forum.

How wrong can one university rep be? Very very very very wrong, apparently.

President Banks contends that PETA cannot assert organizational standing because it does not satisfy Article III’s standing requirements. But I have already determined that it does. That ought to be the end of the standing inquiry. However, President Banks argues that “to assert organizational standing, PETA must show that TAMU’s conduct ‘perceptibly impaired’ its mission.” Phrased differently, President Banks argues that it is not enough that PETA alleged a violation of its First Amendment right to free speech; PETA must also allege that the violation of its free speech rights perceptibly impaired its mission. This is obviously wrong.

Once again, cherry-picking rulings that seem to support your arguments is a losing strategy if the selective selection of cases don’t say the things you think they say.

Tellingly, none of the cases President Banks cites in support of this argument are cases regarding constitutional violations. The Constitution does not require this much. PETA “has alleged violations of its First Amendment . . . rights and thereby satisfied the irreparable injury requirement.”

The lawsuit moves forward and all claims, including PETA’s §1983 allegation, survive. TAMU is a government entity. No matter how much it may dislike PETA’s appearances in the court of public opinion, it cannot do what it did and expect to remain in constitutional good graces.

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Comments on “Court To Public University: Yeah, It’s A 1st Amendment Problem When You Delete Comments You Don’t Like”

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Christenson says:

Gets thorny quickly

Suppose TAMU has a public particle physics facebook page, and PETA starts posting comments, which are moderated out. 1A problem?

Suppose PETA is trolling the animal research youtube, and the moderation works similar to Techdirt, with the community voting on which posts to hide, and PETAs posts invariably get hidden. 1A problem?

Suppose TAMU decides that only faculty, staff, and graduating students may post in the graduation livestream, but anyone may read. 1A problem?

And suppose they rate-limit comments on that livestream — 557 comments seems excessive — or are just sloppy and lose 10% of them at random. 1A problem?

melonlord (profile) says:


  1. Yes. TAMU is a state actor. A social media account is not a limited forum like a government building where the state can restrict speech. See, e.g., the Trump Twitter account cases. Removing PETA’s comments because of their content probably violates the constitution.
  2. No, because there is no state action.
  3. TAMU could argue such a restriction is not content-based, but still a potential issue as it would deprive PETA of an entire channel of speech. Regardless, I doubt this would keep PETA from just paying a student to comment through their account.
  4. Not as much, because this is arguably a content-neutral time/place/manner restriction that doesn’t totally deprive anyone of the ability to speak. And sloppiness raises no 1st amendment issues because the 1st amendment doesn’t obligate the government to preserve our speech.
Christenson says:

Re: Re: Re: Finding the line...

All examples above and below assume some kind of setup officially-endorsed by TAMU, and run by TAMU faculty, staff, or students.

Note that your answers get counterintuitive if you substitute a fully private institution for TAMU. Not that those are easy to find; basically every college and university that’s actually educating students accepts federal funding and has their students using federal student loan programs.

So is the TAMU particle physics page allowed to announce and enforce policy that off-topic comments will be deleted? How about moving off-topic comments to the off-topic section? What if it’s the student-run newspaper?

And in the case of Techdirt style moderation, I’ve noticed that some flagged comments got deleted this week. Would that be 1A kosher?

Rocky says:

Re: Re: Re:2

And in the case of Techdirt style moderation, I’ve noticed that some flagged comments got deleted this week. Would that be 1A kosher?

The comments that get deleted here is spam but spam is a form of speech too, so no, that wouldn’t be ok.

I’m sure someone has an argument why spam shouldn’t be considered protected speech, but such arguments usually means a ride on the slippery slope that erodes free speech.

melonlord (profile) says:

I’ve learned over the years that many, many people in positions of power have absolutely no fucking idea what the 1st amendment means, and when you tell them they can’t actually punish people for saying things they don’t like, they act like you just kicked their puppy. A disturbing proportion of government officials are constitutionally illiterate.

LostInLoDOS (profile) says:

Still fuzzy

I still find difficulties in calling a social account a government actor, no different than the official account.
I understand part of my problem is my lack of belief for social media being any thing worthy of respect.

But still, if it’s not your own site it’s not official.

Right or wrong, it appears to be the dividing line in such debates as this.

Simply put, it’s not a left or right thing; not a political issue. It’s a disconnect between what is and is not official.

This is not an easy battle to simply place a flag in the sand. If social accounts are official, we have problems when private actors dump them. Ala trump. But if they are not official there’s no reason a private actor (the account holder) should be forced to host speech (comments) it doesn’t like or agree with.

Figuring out that tangle of ideals is not cut and dry.

Stephen T. Stone (profile) says:


I still find difficulties in calling a social account a government actor, no different than the official account.

The idea isn’t that hard to grasp: A government-run account on a social media service is bound by the limits of the First Amendment. Cases against both Donald Trump and AOC made this clear.

I understand part of my problem is my lack of belief for social media being any thing worthy of respect.

Yes, yes, you think Twitter should die in a fire. So does everyone else. Find a new complaint; this one is as dead as my social life.

If social accounts are official, we have problems when private actors dump them.

Not really. Twitter can voluntarily host government speech if it so wishes, but the government can’t require Twitter to host government speech. The government can host its own speech on its own websites.

LostInLoDOS (profile) says:

Re: Re:

The government can host its own speech on its own websites.

Unfortunately they don’t.
And drawing the line between official and unofficial…

The entire process of officially posting on a non-official platform needlessly muddies the speech waters!

And that doesn’t begin to cover the fact that some 20% of the population can not use twitter, broadband gaps.

Side question… “ and AOC made this clear.”
What in the world could she get into trouble for? Firebrand notwithstanding, she’s not generally extreme.

Stephen T. Stone (profile) says:

Re: Re: Re:

drawing the line between official and unofficial

If a government official uses a social media account for official government purposes more than personal purposes, that account is considered an official government account. That’s why both Donald Trump and AOC got dinged by the courts: Because their Twitter accounts were/are considered official government accounts, they weren’t legally allowed to block their consitutents from viewing and interacting with those accounts. (They could still mute and report accounts, so far as I know.)

The entire process of officially posting on a non-official platform needlessly muddies the speech waters!

Life is complicated. Learn to live with that.

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