Krasno v. Mnookin, No. 22-3170 (7th Cir. 2025)

The social media era digitized the public square of yesteryear and led many courts to rule on just how constitutional rights intermix with the “modern public square.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017). On August 1, 2025, the Seventh Circuit issued the latest opinion addressing social media accounts operated by public bodies. See Krasno v. Mnookin, No. 22-3170 (7th Cir. 2025).

In a 2-1 ruling, the Seventh Circuit held that the University of Wisconsin-Madison (“University”) violated the First Amendment rights of Madeline Krasno (“Krasno”) through its policy of removing “off-topic” comments. In doing so, the Seventh Circuit determined that the University’s Facebook and Instagram pages constituted a limited public forum, which required any regulations to be reasonable and viewpoint neutral. The University’s manual moderation of comments, without a clear, objective standard of review, and its use of keyword filters that did not account for context, rendered its social media policy unreasonable.

In light of this decision, public bodies should review their social media policies and practices to ensure that they are in compliance with this recent decision. Public bodies should work to ensure that there are clear standards and definitions for “off-topic” and should review the use of keyword filters.

The University’s Approach to Social Media Commenting

The University maintains a Facebook and Instagram account (the “Accounts”), with the commenting features enabled. The University utilizes its Accounts to communicate official announcements, events, and policies. The Accounts are public and any platform user can engage with the Accounts through commenting on specific posts in the comment sections. Alongside each comment is the individual users’ unique accounts names and profile picture.

Both Facebook and Instagram offer tools that permit users to limit how others can interact within the comment sections of their posts. For instance, on Instagram, a comment section could be disabled entirely for a user’s posts. Additionally, a user could restrict a specific user from leaving comments on their posts, while the comment section remained available for all other users. On Facebook, a user could manually hide from public view, or delete entirely, the comments of other users on their own posts. A hidden comment could be seen by the commenter and those approved by the commenter to see their private posts, and a deleted comment was removed entirely.

The University’s Office of University Communications oversees these Accounts, which includes moderating comments on the University’s posts. The University’s website also included a “Social Media Statement”, which stated that the University “shall have the right to remove any content for any reason,” including off-topic content. Krasno, No. 22-3170, at 5.

After litigation commenced, the University distributed interim guidelines on content moderation to its social media staff, stating that social media managers may moderate content on one criterion: whether the posted content is on vs. off topic (“Off-topic Rule”). The guidelines further stated that social media managers had discretion to remove posted content that is unrelated to the topic or the purpose of the social media page.

In addition to this manual moderation, the University employed keyword filters on its Accounts. A keyword filter automatically hides comments that contain certain words or phrases selected by the University. The words or phrases selected by the University to be filtered out on both Facebook and Instagram included hashtags, names, and keywords related to discussions of animal testing and cruelty such as “animal testing” and “vivisection”, and more general but related phrases such as “barbaric” and “you guys are sick”. Much of these content moderation decisions were left to the University’s employees’ discretion.

Cutting Off Krasno

Krasno’s grievances began with her campaign to shed light on the University’s primate testing facilities, which she believed committed animal abuse. To protect the primates, Krasno turned to the digital realm and engaged with the University’s social media platforms. Her aim was to highlight her experiences as a student and primate caretaker at the University’s Harlow Center for Biological Psychology (“Harlow Center”) and the Wisconsin National Primate Research Center (“WNPRC”). 

In September 2020, Krasno began commenting on the University’s social media posts to advocate for animal rights. Almost immediately, the University began hiding her comments. For instance, on a September 2020 Instagram post about the dairy cows at the University’s Dairy Cattle Center, Krasno commented: “Stop exploiting animals. Get with the future and the future is consistent anti-oppression. Shut down the labs and eat plants!”. This comment was hidden while another user’s comment hoping to be admitted to the University was left public.

At the end of September 2020, the University restricted Krasno’s Instagram account, making her comments on the University’s posts automatically hidden. When questioned about the account restriction, a social media manager at the University stated that they had noticed a consistent pattern of off-topic comments. Krasno was the only user restricted by the University on Instagram. The restriction was removed in late January 2021, but during this time Krasno’s comments, both related and unrelated to the adjacent post, on five different Instagram posts were automatically hidden.

After the restriction was lifted and Krasno discovered the University’s use of keyword filters, she began modifying the spelling of certain words to avoid the filters and continued to leave comments on the University’s posts.

The University further moderated Krasno’s comments on its Facebook posts manually, hiding both related and unrelated comments. In December 2020, Krasno commented on a University Facebook post about proud alumni, stating, “University of Wisconsin–Madison, are you really proud of all your graduates or just the ones who don’t object to your barbaric treatment of monkeys in your research labs?” The University manually hid Krasno’s comment for being off topic. The University Facebook page also employed keyword filters, and Krasno similarly left comments with alternate spellings to avoid the filters.

In February 2021, Krasno sued the University and certain University officials, alleging that the University violated her First Amendment rights by censoring her speech in the University’s comment sections. At the district court level, the University was successful on summary judgment and the University’s posts were deemed non-public forums. Krasno also sought to enjoin the University’s use of keyword filters, but the district court found that she did not have standing because she did not have right to comment about animal testing, nor did she demonstrate she was likely to be harmed by the keyword filter in the future.

Comment Control

            Prior to addressing any forum issues, the Seventh Circuit determined whether the comment threads were government-controlled, and, if so, whether the comments were private or public speech. The parties agreed that the comment threads attached to the University’s social media posts consist of government-controlled property.

            The comments, as posted by individual users but adjacent to the University’s posts, were deemed private speech. Multiple factors weighed in favor of this determination, including the University’s passive involvement in comment selection and the indication that the University does not sift through submission of comments to actively shape or control the messaging nor did they do so in a manner that the public may misconstrue the speech as the University’s.

            In contrast, the Seventh Circuit may have found differently if a social media manager were screening all comments and only allowing those comments that aligned with the University’s preferred image to be published. However, comments are freely posted and only restricted after the fact, rendering the degree of the government’s involvement in shaping the comments messaging as nearly imperceptible. The Court did acknowledge that the keyword filters provided some government involvement in the comments, but the extent of that involvement was not meaningful enough to consider the comments to be the University’s speech.

            The Seventh Circuit also rejected the dissent’s position that the existence of the Social Media Statement transformed the speech into government speech. The Court reasoned that this approach would render any speech on government property unreviewable, so long as the governmental unit could point to an internal social media policy.

Focus on Forum

            Under the First Amendment, the limits on speech may shift based on the forum in which it occurs. There are four types of forums: traditional, designated, limited, and nonpublic. Here, three forum types are proposed.

Krasno pushed for a designated public forum, which would limit government regulations to reasonable time, place, and manner restrictions and subject any regulations to strict scrutiny, which is the highest level of scrutiny.

The University argued for either a nonpublic or limited public forum. Both forums are subject to a reasonable and view-point neutral review. A limited public forum exists when property has a limited use by certain groups or is dedicated solely to the discussion of certain subjects. A nonpublic forum is one that, not by tradition or designation, is a forum for public communication.

Identifying forum requires identifying the University’s intent when establishing these Accounts. The Court emphasized that the University’s posts are “inherently compatible with expressive activity, because they are designed to facilitate that purpose.” Krasno, No. 22-3170, at 26. However, the Social Media Statement indicates that the University did not intend to allow its comment threads to run wild, and that it intended for the comments to related to the accompanying post. Id.

The Seventh Circuit ultimately found the comment threads attached to the University’s posts to be a limited public forum. The Seventh Circuit emphasized that government-run social media accounts are more likely to be deemed designated public forums when comment threads are open with no restrictions, whereas prospective restrictions lean towards a limited public forum. This distinction is important because a designated public forum is subject to a higher level of scrutiny.

Constitutional Question

            With forum decided, the Court held that the Off-topic Rule, as applied to Krasno, was unconstitutional under the First Amendment. As private speech in a limited public forum, any restrictions must be viewpoint-neutral and reasonable. However, the University’s moderation policy was deemed neither.

            First, the application was not viewpoint-neutral because it targeted Krasno’s anti-animal testing and pro-animal rights viewpoint. This was demonstrated through the keyword filters selected by University officials, as well as the manual hiding of Krasno’s one on-topic comment. The Court reasoned that the University’s moderation decisions were spurred not by the relevance of Krasno’s commentary to the underlying posts, but by the views her commentary conveyed.

The Court further found the Off-topic Rule unconstitutional because it was unreasonable.

The University claimed the rule un-clogs its comment threads, enables its audience to interact with its posts and facilitates effective University responses. While this is a permissible objective, the path to achieving it must be reasonable. The bare instructions to staff did not demonstrate objective, workable standards. Indeed, there was no working definition of “off-topic,” rendering many decisions within the sheer discretion of employees. Further, the guidelines did not mandate consistent moderation of off-topic comments, and the University admits moderation decisions are discretionary. According to the court, the University failed to supply a sensible basis for distinguishing what may come in from what must stay out.

            Unreasonableness was also demonstrated through actual enforcement. Namely, the University admitted some of Krasno’s hidden comments were on-topic. Additionally, the keyword filter enforcement was inflexible and failed to account for context. The content-blind keyword filters did not further the “off-topic” justification because the preemptively choosing a given phrase could not account for the topic of yet-unknown future social media posts.

Conclusion

            The University’s manual moderation and keyword filter enforcement, as applied against Krasno, was deemed unconstitutional.

Tangible Takeaways

• There was jurisdiction over Krasno’s claims for injunctive relief but not over her claims for declaratory relief.
  • Krasno’s standing for injunctive relief was based on past suppression of her comments, her intent to continued commenting, and the University’s stagnant use of keyword filters, which demonstrated that there was a threat of actual or imminent injury
  • Sovereign immunity did not bar Krasno’s claim for injunctive relief, as it qualified as prospective relief against an allegedly ongoing violation of federal law.
  • Sovereign immunity did bar Krasno’s claims for declaratory relief, as they arose from the account restriction that was lifted in January 2021, and the manual hiding of the December 2020 comment, and therefore the requested relief could not be properly characterized as prospective under the sovereign immunity exception for prospective relief.
• The University’s comment moderation policies did violate the First Amendment as applied to Krasno.
  • The comments in the comment section of the University’s posts are private speech in a restricted public space as the University engages in minimal moderation but reserves the right to delete comments for any reason. Restrictions on private speech in a restricted public space must be viewpoint-neutral and reasonable.
  • The University’s off-topic comment rule, which governed the moderation of the comment section, was not enforced as viewpoint-neutral when the keyword filter targeted phrases used by animal-rights activists and Krasno’s on-topic comments were hidden.
  • This off-topic comment rule was also unreasonable as the University’s bare instructions for its social media staff failed to provide objective, workable standards. Further, the enforcement, where Krasno’s on-topic comments were hidden and the keyword filter was inflexible and unresponsive to context, showed that the rule was unreasonable and prone to abuse.

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