Texas A&M: Our secret list of naughty words you can’t say on our Facebook page doesn’t offend the First Amendment

Last December, People for the Ethical Treatment of Animals noticed that posts and comments on Texas A&M University’s Facebook page that were critical of the university for experiments on golden retrievers would quickly disappear. With a bit of experimentation, PETA surmised that the university had set up a blacklist of particular words that would, if included in a comment or post, automatically be hidden from the university’s Facebook page.

In May, with the help of the capable folks at the Electronic Frontier Foundation, PETA filed a lawsuit against the university, alleging that the restrictions ran afoul of the First Amendment. Days after the lawsuit was filed, another federal court held that President Donald Trump’s blocking of critics on Twitter unlawfully denied them access to a public forum.

To confirm its suspicions, PETA issued a public records request to the university, requesting copies of its Facebook and Twitter settings. In subsequent court filings, PETA shared the results of that request, showing that Texas A&M had blocked, among others, the words “abuse,” “abusers,” “lab,” “md,” and “peta.”

Texas A&M is now asking the federal court to dismiss the lawsuit, arguing that its secret blacklist doesn’t offend the First Amendment at all.

First, the university asserts that its status as a university allows administrators to censor these posts, citing the Supreme Court’s observation in Widmar v. Vincent that universities’ “mission is education,” thus allowing universities to make reasonable regulations to further that mission. But the Widmar Court also explained that while a “university legitimately may regard some subjects as more relevant to its educational mission than others,” it can’t engage in viewpoint discrimination. Moreover, it’s difficult to see what a university’s educational mission has to do with its Facebook page. If a university is fulfilling its educational mission through its Facebook page, students should ask for a refund.

Second, Texas A&M argues that it was right and good to censor these posts because they “disrupted” the intended purpose of the Facebook page, which was “to share information about [Texas A&M’s] programs and services with the University community.” But posting a comment on a thread doesn’t interfere with the university’s ability to post, or for its intended audience to read those posts.

Third, the university says this doesn’t amount to viewpoint discrimination, because someone could hypothetically post: “TAMU must end inhumane muscular dystrophy research on dogs”; they just can’t use words like “PETA” or “abuse” or “abusers.” This assumes, however, that posters know what’s on the secret list of banned words, and that the university wouldn’t simply add those words to the blacklist once its critics found out they weren’t prohibited yet. More importantly, banning words used to criticize particular research is de facto viewpoint discrimination: the university isn’t blocking words that praise the program.

Maybe your own university has a secret list of forbidden words you can’t use on its Facebook page. If it’s a public institution, you might be able to use a state public records law to ask your university for a copy of their blacklist. The Student Press Law Center provides a handy letter generator, and PETA’s request provides some useful language. If you get something interesting back, I’d be interested to hear about it.