Krasno v. Mnookin

638 F.Supp.3d 954

Madeline KRASNO, Plaintiff, v. Jennifer MNOOKIN¹, Charles Hoslet, John Lucas,Mike Klein, and Nate Moll, Defendants.

21-cv-99-slc

United States District Court, W.D. Wisconsin

Signed November 2, 2022

Christopher Andrew Berry, Animal Legal Defense Fund, Cotati, CA, Jessica L. Farley, Mark M. Leitner, Joseph S. Goode, Laffey, Leitner & Goode, LLC, Milwaukee, WI, Caitlin Foley, Animal Legal Defense Fund, Chicago, IL, for Plaintiff.

Steven Carl Kilpatrick, Brian P. Keenan, Lynn Kristine Lodahl, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

STEPHEN L. CROCKER, Magistrate Judge

Like most public universities, the University of Wisconsin-Madison uses social media to communicate with its students, staff, alumni, and the general public. This case concerns the University's @uwmadison Instagram and Facebook accounts, sometimes referred to as "pages," which are the official and primary Instagram and Facebook accounts for the institution. Plaintiff Madeline Krasno is an alumna of the University and a self-described advocate for humane treatment of animals. Krasno sometimes leaves comments on the University's pages expressing opposition to the University's use of primates for research purposes. After discovering that the University had been deleting her comments or hiding them from public view, Krasno filed this action under 42 U.S.C. § 1983, contending that University officials and employees were violating her First Amendment rights to free speech and to petition the government. Specifically, Krasno alleges that the University engaged in unlawful censorship when: (1) the University placed an account restriction on her Instagram account from September 2020 to January 2021; (2) the University manually deleted her December 9, 2020 comment to one of the University's Facebook posts; and (3) the University employed (and continues to employ) keyword filters on both platforms that she claims prevent or make it difficult for her to post publically-visible comments that reflect her views on animal testing.

The University admits that it suppressed Krasno's speech, but it denies that it did so because of her views on animal testing. Instead, contends the University, it hid Krasno's comments because they were "off topic" to the subject of the post on which Krasno was commenting, a practice it maintains is permissible to maintain the purpose of opening up the comment threads in the first place. Although the University has removed Krasno's account restriction, it defends its right to "hide" or delete off-topic comments, either manually or through auto-moderation tools offered by Facebook and Instagram.

Both sides have moved for summary judgment. Dkts. 31, 34. I am denying Krasno's motion and granting defendants' motion. As discussed below, because there was no settled law putting defendants on notice that their moderation decisions violated Krasno's First Amendment rights, her individual capacity claims must be dismissed under the doctrine of qualified immunity. And because the University lifted the account restriction in January 2021, Krasno's official capacity claim with respect to that practice is barred by the Eleventh Amendment. Finally, her claim that she faces harm from the University's use of the keyword filter is too speculative and remote to warrant injunctive relief, so I am granting summary judgment to the University on that claim, as well.

From the parties' joint and individual proposed findings, I find the following facts to be undisputed for purposes of deciding the instant motions:

FACTS

I. Background

The University of Wisconsin-Madison uses social media as a platform to communicate with its students, staff, alumni, and the general public. As noted, this case concerns the University's @uwmadison Instagram and Facebook accounts, sometimes referred to as "pages," which are the official and primary Instagram and Facebook accounts for the institution.

Instagram and Facebook are social media platforms owned by Meta. The platforms facilitate interactions between users by allowing them to share text, photos and videos, and to like, share, or comment on other users' shared content. Account holders on both platforms also can call another user's attention to a post by "tagging" them, which results in that content appearing on the other user's Instagram or Facebook page.

Meta offers its account holders various settings and tools to govern the level of interaction they wish to allow on their social media webpages. The University has opted to make its Instagram and Facebook pages "public," meaning they are accessible to anyone with an Instagram or Facebook account.² The University also has opted to turn the "commenting" feature of the webpages "on," which allows other Instagram and Facebook users to leave comments, and to reply to other users' comments in the interactive area that appears beneath the University's posts.

The University uses its Facebook page and Instagram account to communicate official University announcements, events and policies to its student body and to the public on a wide range of University-related issues. It sees social media as an opportunity to promote the UW-Madison "brand" and to get information to its key stakeholders quickly and publicly, and as an opportunity for those stakeholders to access the University. The content included in the University's social media posts on its @uwmadison Instagram and Facebook accounts is represented as the official "voice" of the University.

The subjects of the University's posts range from feel-good content (e.g., celebrating the accomplishments of its sports teams and lauding research breakthroughs by its scientists) to letters from university administrators providing updates and information impacting campus life (e.g., COVID-19 protection measures, and announcements of university closures). The University has posted about the medical care provided by its veterinary and engineering schools, and has featured animals.

Depending on the topic, posts may generate hundreds or even thousands of responses in the comment threads, ranging from anodyne emojis and tags to substantive critiques of University policy. For instance, in response to a December 15, 2020 University Facebook post describing its mobile COVID-19 testing facility, over 50 comments and replies were made that debated the necessity, rationale, and efficacy of the University's testing, along with comments alluding to the University's ability to track the whereabouts of its students. See dkt. 60, exhs. 1-3. The University sometimes engages in its own speech in the comment threads by responding to questions posed by other users.

Regardless of the number of comments appended to a particular post, the University's own posts on both Facebook and Instagram are always visible for engagement with users. In general, the University does not remove or restrict criticisms from the comment threads associated with its Facebook posts, even when the criticisms are aimed at University policy or practices on topics such as holding in-person classes, expenditures on guest speakers and on art, and the University's solicitation of donations to fund student fees.³

The University's Office of University Communications is responsible for generating the content of the University's posts on its Instagram and Facebook pages, for administrating the accounts, and for moderating users' comments. Defendant John Lucas is Assistant Vice Chancellor for University Communications; Mike Klein is Director for News Content and Editorial Projects at the University; and Nate Moll is a Social Media Manager. Moll, and to a lesser extent Klein, are primarily responsible for overseeing operations of the University's social media accounts and for moderating comments on its Instagram and Facebook pages. Lucas and the Office of University Communications are responsible for ensuring that the University's social media managers comply with any guidance concerning content moderation.

The University conducts invasive research on animals, including invasive research on nonhuman primates at both the Harlow Center for Biological Psychology and the Wisconsin National Primate Research Center. In April 2020, the University was fined for alleged violations of the Animal Welfare Act, including one involving a traumatic injury to a primate when it was returned to its shared cage despite a previous act of aggression by its cagemate.

These facts make the University a frequent target of criticism and social media campaigns by animal rights groups, such as the People for the Ethical Treatment of Animals. The University's Communications team monitors the social media activities of these groups to stay apprised of what they are saying about the University's animal testing program, and when a social media campaign might be afoot. The University Communications team routinely shares this information with social media managers in the Research Communications department, whose bailiwick includes communications involving animal research, and they sometimes consult with Research Communications employees about moderation decisions.

II. The University's Moderation Policies

At the time this lawsuit was filed, the University's only written policy concerning what people could post on its Instagram and Facebook pages was a "Social Media Statement." This statement could be found on the University's website and by clicking on a series of links on its Instagram and Facebook pages. The policy stated in relevant part:

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, off-topic, commercial or promotion of organizations or programs not related to or affiliated with the university, or otherwise injurious or illegal.

After this lawsuit was filed, the University issued Interim Guidance to social...