Reminder: the First Amendment Governs Content Moderation by the Government-PETA v. Banks – Technology & Marketing Law Blog

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Reminder: the First Amendment Governs Content Moderation by the Government-PETA v. Banks - Technology & Marketing Law Blog

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?

In 2020, TAMU livestreamed a pandemic-related virtual graduation and PETA was there:

PETA alleges TAMU engaged in viewpoint discrimination by deleting PETA’s comments protesting TAMU’s dog laboratories from TAMU’s Facebook and YouTube livestreams of its graduation ceremonies. According to PETA, 54 of the 80 comments PETA employees and supporters posted on the CVMBS Facebook livestream were deleted, 64 of the 413 comments PETA employees posted to the TAMU Facebook livestream were deleted, and at least 19 of the 70 comments PETA employees and supporters posted on the TAMU YouTube livestream were initially deleted

TAMU claims that PETA’s comments were “spam” that violated TAMU’s social media policy. TAMU subsequently deleted the whole graduation video, including all of the comments.

(As a decades-long vegetarian, I am generally predisposed to support PETA’s positions. However, if I were celebrating a virtual graduation during a pandemic and PETA tried to hijack the event for its advocacy, I would be thinking: “not now, PETA”).

PETA sued TAMU for violating the First Amendment. This ruling addresses the preliminary issue of standing, not the substantive questions of whether TAMU violated the First Amendment. It’s still not a good look for TAMU.

For example, instead of PETA suing now, TAMU argued that, because “a violation of TAMU’s social media policy carries no risk of criminal prosecution, civil penalty, or other serious sanction,” PETA should be “posting comments on TAMU’s social media sites and waiting to see if those comments get deleted.” The court calls this argument “misguided,” saying: “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.”

TAMU also argued that no one wants to watch a 2-year-old graduation video, so restoring PETA’s comments is a meaningless outcome. Putting aside the obvious dubiousness of that argument, the court responds: “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.”

As a result, the court says PETA has standing and greenlights the lawsuit to the next phase.

While it’s not clear PETA will ultimately win this lawsuit, its mere existence is a reminder of the risks that state actors face when they moderate online content. Every removal decision provides the basis for a potential lawsuit–so something as simple as moderating a single livestream can create dozens or hundreds of lawsuits. For more on these risks, see, e.g., this post. Vigorous government-performed content moderation is a euphemism for “perpetual lawsuit-making machine.”

This also is a reminder to universities (and, frankly, anyone running livestreams) to plan out the content moderation issues well in advance, not on the spot. It would be appropriate for universities to impose time/place/manner restrictions for comments on something like a graduation livestream. Maybe let the comments flow freely before and after the ceremony, but turn off all comments during the event itself?

Case Citation: PETA v. Banks, 2022 WL 4021938 (S.D. Tex. Sept. 2, 2022)