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

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.