In a big win for free speech on the Internet, an EFF lawsuit has compelled the nation’s second-largest public university to stop censoring dissent on its social media. To settle our First Amendment case, Texas A&M University (TAMU) agreed to end its automatic and manual blocking of comments posted on its Facebook page by People for the Ethical Treatment of Animals (PETA) about the school’s dog labs. This legal victory is an important step forward in EFF’s nationwide campaign to end censorship in government-operated social media.
Why We Fight Censorship in Government Social Media
Social media has changed the way people all over the world connect and communicate. As the U.S. Supreme Court explained in Packingham v. North Carolina (2017): “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general, and social media in particular.” (The Court in Packingham repeatedly cited EFF’s amicus brief.)
Government has fully embraced social media to communicate with the public. From federal departments to small-town bureaus, government agencies use their social media to conduct official business and engage in two-way communications with the public, and to facilitate communications among members of the public. In the words of a growing number of courts, governments thereby create “interactive spaces” where members of the public can talk back to the government and communicate with each other. While the government generally has the prerogative to control the content of its social media posts, the First Amendment protects the right of technology users to express their own views in the interactive spaces.
Unfortunately, many government officials respond to criticism in social media by deleting user comments or blocking users. This burdens First Amendment rights. Perhaps most famously, President Trump blocked critics from his Twitter account, prompting a lawsuit from the Knight Institute, which EFF supported with amicus briefs in the district and appellate courts. Many state and local officials have also censored their social media. These include the Hunt County (Texas) Sheriff’s Office, against which EFF filed an amicus brief, and the City of Norman (Oklahoma), against which EFF provided oral argument.
Our PETA v. TAMU lawsuit
In 2016, PETA launched an advocacy campaign against TAMU’s dog labs, which led some supporters to post critical comments on TAMU’s Facebook page. TAMU responding by blocking comments from PETA and its supporters. Its censorship scheme had two components. First, TAMU used automatic filters to identify and block comments that contained words like “PETA” and “lab.” Second, if PETA-generated posts did not contain these forbidden words, then TAMU manually deleted them.
In May 2018, EFF filed a First Amendment lawsuit on behalf of PETA against TAMU. We sought forward-looking injunctive and declaratory relief. We filed in the U.S. District Court for Southern Texas. Our co-counsel are Gabriel Walters of the PETA Foundation (which includes PETA’s law office) and Christopher Rothfelder of Houston-based Rothfelder & Falick, L.L.P.
At oral argument in September 2018, the district court denied TAMU’s motion to dismiss. Ruling from the bench, the court acknowledged that “the foundational right of all Americans,” namely the freedom of speech, applied to new technologies. The court added: “There were folks who said the First Amendment doesn’t cover movies and television … They weren’t successful.” The court also expressed skepticism of TAMU’s suggestion that PETA could express itself elsewhere: “You sound like [an unsuccessful advocate before] the Supreme Court, when it says, ‘You don’t need to use the auditorium, you can print posters. And you don’t need to print posters, you can march in the streets. You don’t need to march in the streets.’ If you added them all up, you just don’t need to talk.”
- Facebook pages contain interactive spaces for speech by page visitors.
- TAMU by policy and practice allows a dizzying quantity and variety of speech by the public on TAMU’s Facebook page.
- TAMU used automatic and manual tactics to block comments from PETA and its supporters about TAMU’s dog lab.
We also demonstrated that TAMU’s censorship scheme violated the First Amendment. We made three principal arguments.
First, TAMU engaged in viewpoint-based discriminated against PETA, that is, against PETA’s viewpoint that TAMU’s dog labs are cruel and should be closed. Viewpoint discrimination is unlawful in all types of government forums.
Second, TAMU engaged in content-based discrimination against PETA, that is, against the entire subject matter of the dog labs. TAMU designated the interactive spaces of its Facebook page as a public forum for speech by the public. In such forums, TAMU cannot engage in content-based discrimination, even if it is not also engaged in viewpoint-based discrimination.
Third, TAMU violated PETA’s First Amendment right to petition the government for redress of grievances. This includes PETA’s right to use TAMU’s Facebook page to demand that TAMU close its dog labs.
Our PETA v. TAMU victory
Soon after our summary judgment motion, the parties began to actively explore settlement.
In February 2020, these discussion bore fruit. TAMU and PETA finalized a settlement agreement in which TAMU committed to dismantling its censorship scheme. First, TAMU will remove all settings that block or filter PETA’s comments on TAMU’s Facebook page. Second, TAMU will not exercise viewpoint discrimination when administering its Facebook page, including against PETA and its supporters. Third, TAMU will not automatically or manually block or filter PETA’s comments on TAMU’s Facebook page. TAMU also agreed to pay PETA’s attorney fees incurred in prosecuting this case.
TAMU reserved its right to remove PETA comments that violate its new Facebook Use Policy, which TAMU adopted after PETA filed this suit. PETA in turn reserved its right to bring a new lawsuit against TAMU’s new policy. We expect that TAMU has learned its lesson, and will comply with the First Amendment in its administration of its Facebook page.
But of course, eternal vigilance is the price of digital liberty. EFF will continue to work as the leading defender of free speech on the Internet. This includes the right of all technology users to express themselves in the interactive spaces of government-operated social media, like TAMU’s Facebook page.
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Author: Adam Schwartz