Viewpoint-Based Moderation of Open Municipal Website Comment Sections Is Clearly Unconstitutional (No Qualified Immunity)

Case: Elizabeth Schulte v. Kenneth J. Leners and Town of Cedar Lake, Wisconsin
Court: United States Court of Appeals for the Seventh Circuit
Date: August 5, 2026
Judge: Easterbrook, Circuit Judge (Pryor and Kolar, Circuit Judges, joined)

1. Introduction

This interlocutory appeal arises from a First Amendment suit under 42 U.S.C. §1983 brought by Elizabeth Schulte, a Cedar Lake property co-owner, against Kenneth J. Leners (then chairman of the Town’s three-member Board of Supervisors) and the Town of Cedar Lake, Wisconsin. The Town operated an official website that, until September 2022, allowed public comments beneath Town posts without limiting who could comment or what could be said.

The dispute began after Leners posted an “Update on Recreational Residential Dwellings” criticizing RV use and favoring increased regulation. Schulte (an RV owner) and others criticized the post in the comment section. According to the complaint—taken as true at the motion-to-dismiss stage—Leners responded by labeling critical comments “disrespectful,” announcing bans on selected critics, deleting their replies, and later removing all comments under the post.

The core legal issue on appeal was narrow: whether Leners was entitled to qualified immunity for selectively deleting comments on the Town website in September 2022, i.e., whether the unlawfulness of his alleged viewpoint discrimination was “clearly established” at the time.

2. Summary of the Opinion

The Seventh Circuit (1) dismissed the Town’s interlocutory appeal because municipalities cannot assert qualified immunity; and (2) affirmed the district court’s denial of qualified immunity to Leners on the selective deletion of comments.

3. Analysis

3.1 Appellate Jurisdiction and Scope of Review

The court reaffirmed that denials of qualified immunity are immediately appealable under Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985), but emphasized the limited scope of such appeals: the appellate court addresses only the “clearly established law” question while factual disputes remain for the district court.

The panel also clarified what was (and was not) before it. The district court denied qualified immunity only as to Leners’s “moderation activity” involving selective deletion under the September 13 post. The district court did not decide qualified immunity on retaliation or vagueness theories, so the Seventh Circuit confined its review accordingly.

Finally, the panel dismissed the Town from the appeal because qualified immunity does not apply to municipalities, citing Owen v. Independence, 445 U.S. 622 (1980).

3.2 Qualified Immunity Framework Applied

Under District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018), once an official invokes qualified immunity, the plaintiff must show both (i) a constitutional violation and (ii) that the right was clearly established at the time. Here, Leners conceded for purposes of the appeal that his conduct violated a federal right, so the fight was exclusively about clearly established law.

The opinion anchored the standard in Zorn v. Linton, 607 U.S. 568, 572 (2026): a right is clearly established when it is “sufficiently clear that every reasonable official would have understood” the conduct violated the right, and precedent must be specific enough that “every reasonable official” would interpret it to establish the particular rule sought.

3.3 Precedents Cited—and How They Drove the Outcome

A. Viewpoint discrimination in public forums: the “clearly established” baseline

The panel treated the anti-viewpoint-discrimination principle as one of the most settled rules in constitutional law once the government has opened a forum for private speech. It relied on a line of Supreme Court cases, including:

• Shurtleff v. Boston, 596 U.S. 243, 258 (2022)
• Minnesota Voters Alliance v. Mansky, 585 U.S. 1, 11-12 (2018)
• Christian Legal Society v. Martinez, 561 U.S. 661, 679 (2010)
• Good News Club v. Milford Central School, 533 U.S. 98, 106 (2001)
• Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 (1993)
• Rosenberger v. University of Virginia, 515 U.S. 819, 828-30 (1995)
• Chiles v. Salazar, 146 S. Ct. 1010 (2026)

These cases supplied the doctrinal backbone: when the government provides a platform for private expression (a public forum, including a designated public forum), it may not exclude speech because it disagrees with the speaker’s viewpoint. The panel also invoked Rosenberger for the proposition that viewpoint discrimination is an “egregious form” of content discrimination—relevant to why an official could not plausibly claim uncertainty about its unlawfulness.

B. “Offensive” speech is still protected (and “disrespect” rationales are constitutionally suspect)

The court highlighted that Leners contemporaneously justified deletions as responding to “disrespect,” “derogatory,” or “offensive” comments—an explanation the Supreme Court has repeatedly rejected as a basis for suppressing protected speech:

• Matal v. Tam, 582 U.S. 218 (2017)
• Iancu v. Brunetti, 588 U.S. 388 (2019)
• Snyder v. Phelps, 562 U.S. 443 (2011)
• Papish v. University of Missouri, 410 U.S. 667 (1973)
• Cohen v. California, 403 U.S. 15 (1971)

Iancu served a dual function: it reinforced that morality/offensiveness criteria can be viewpoint-based, and it supported an inference that Leners’s “disrespect” framing itself suggested viewpoint discrimination.

C. Seventh Circuit guidance: content/viewpoint discrimination defeats immunity

The court cited Surita v. Hyde, 665 F.3d 860, 869-74 (7th Cir. 2011), where qualified immunity was denied when an official discriminated against a speaker based on content. That precedent helped bridge general forum principles to the qualified-immunity posture: if unconstitutional discrimination is apparent, officials cannot rely on “novelty” arguments to escape liability.

D. “Novel forum” arguments rejected: websites are not a First Amendment dead zone

Leners argued the municipal website comment section posed a novel scenario. The court rejected this in two steps.

First, it leaned on Packingham v. North Carolina, 582 U.S. 98, 104 (2017), describing cyberspace as among the “most important places” for exchanging views. Packingham did not itself decide forum status of comment sections, but it erased the premise that online speech should be treated as categorically different (or less protected).

Second, the panel canvassed out-of-circuit decisions that had already applied traditional forum analysis to government-controlled interactive online spaces:

• Davison v. Randall, 912 F.3d 666, 681-88 (4th Cir. 2019)
• Robinson v. Hunt County, 921 F.3d 440, 447-49 (5th Cir. 2019)
• Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1177-80 (9th Cir. 2022), vacated and remanded on other grounds, 601 U.S. 205 (2024)

While the court “assume[d]” out-of-circuit cases could be relevant to clearly established law (citing Figgs v. Dawson, 829 F.3d 895, 906 (7th Cir. 2016)), it carefully avoided definitively resolving that doctrinal question. It noted the Supreme Court’s qualified-immunity cases that have “assumed without deciding” whether “controlling Circuit precedent” can clearly establish law:

• Zorn, 607 U.S. at 572 n.3
• Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)
• Wesby, 583 U.S. at 66 n.8
• Reichle v. Howards, 566 U.S. 658, 665-66 (2012)

And, invoking the party-presentation principle, it declined to decide the broader “out-of-circuit” question because Leners did not contest using such authority, citing Clark v. Sweeney, 607 U.S. 7 (2025), and United States v. Sineneng-Smith, 590 U.S. 371 (2020).

The court also distinguished and disregarded Knight First Amendment Institute v. Trump, 928 F.3d 226 (2d Cir. 2019), rehearing en banc denied, 953 F.3d 216 (2020), vacated as moot under the name Biden v. Knight First Amendment Institute, 141 S. Ct. 1220 (2021), because vacatur removed its precedential force.

Finally, the panel pointed to its own subsequent decision, Krasno v. Mnookin, 148 F.4th 465 (7th Cir. 2025), recognizing comment sections on official University of Wisconsin Instagram and Facebook pages as public forums—confirming the Seventh Circuit’s alignment with the national consensus (even though Krasno post-dated the events).

E. The government-speech doctrine: the most serious defense, and why it failed under Shurtleff

The court treated the strongest potential path to immunity as the government-speech doctrine: if the comments were reasonably understood as the Town’s own speech, Leners could exercise editorial discretion. It reviewed the doctrine through:

• Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015)
• Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 673-74 (1998)
• Moody v. NetChoice, LLC, 603 U.S. 707, 728 (2024)
• Pleasant Grove v. Summum, 555 U.S. 460 (2009)
• Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)

These cases establish that when the government is speaking, it may “determin[e] the content of what it says” and engage in editorial judgment over curated compilations. But the panel emphasized that the relevant “speech at issue” was not the Town’s posts generally; it was the open comment section beneath a Town post.

Shurtleff v. Boston was decisive in translating government-speech doctrine into a practical test for interactive spaces: even where the medium (flags) historically conveys government messages, private speech is found where the government lacks “meaningful involvement” and “actively control[s]” neither selection nor message, especially absent “written policies or clear internal guidance.”

Applying Shurtleff, the Seventh Circuit held that by September 2022 it was clear that when private parties communicate through a public forum and the government lacks a policy governing what may be said, the speech is private—not government speech. Here, the complaint alleged the Town “did not have a policy concerning who could comment or what they could say,” and commenters used the space to discuss municipal affairs among themselves. That made the comment section “a far cry” from a curated “letters to the editor” feature.

The consequence was straightforward: no reasonable official could conclude the comment section was government speech, and thus no reasonable official could believe viewpoint-based “culling” was lawful.

F. Closing a forum vs. discriminating within an open forum

The opinion acknowledged (citing Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802 (1985)) that the government can close a designated forum it has created. This mattered because the Town later removed comment sections entirely (an action the court said the Town had “every right” to take).

But that principle did not help Leners because the forum remained open when he selectively deleted critics in September 2022. The constitutional defect was not “closing the forum”; it was viewpoint discrimination while the forum was still open.

3.4 Legal Reasoning (Step-by-Step)

1. Posture: On a motion to dismiss, the complaint’s allegations are taken as true; factual disputes are not resolved on interlocutory appeal.
2. Concession: Leners conceded a constitutional violation for purposes of appeal; only “clearly established” was contested.
3. Forum status as pleaded: While open to all without content limits, the website comment section functioned as a public forum for private speech.
4. Viewpoint discrimination as pleaded: Leners allegedly targeted critics, threatened bans, deleted their comments, and justified it as “disrespect.”
5. Clearly established law: Supreme Court law clearly prohibited viewpoint discrimination in public forums, including for “offensive” speech.
6. No viable “novelty” carve-out: Online forums are protected spaces, and multiple circuits had already applied traditional forum rules to interactive online comment sections.
7. Government-speech defense fails under Shurtleff: The absence of policy/control over the comment section made it clearly private speech, not government speech.
8. Result: Qualified immunity denied; no reasonable official could think viewpoint-based deletions in this open, unregulated comment forum were lawful in September 2022.

3.5 Impact

The opinion’s practical impact is to tighten the qualified-immunity analysis for officials moderating interactive features on official government websites.

• For municipal websites: If a government site hosts open comment threads without clear, consistently applied policies, officials face heightened risk if they delete or ban based on disagreement with criticism.
• For moderation policies: Governments retain the option to (i) close comment sections entirely, or (ii) adopt viewpoint-neutral rules (e.g., spam, obscenity as defined by law, off-topic limits in a limited forum) and apply them evenhandedly.
• For litigation posture: Plaintiffs can defeat qualified immunity at the pleading stage by alleging (with plausible facts) viewpoint-based deletions in an open, uncontrolled comment forum—especially where officials justify actions with “disrespect/offensive” rationales.
• Doctrinal ripple: The panel’s party-presentation discussion preserves uncertainty about how much out-of-circuit authority can “clearly establish” law, leaving that question for a future case with adversarial briefing.

4. Complex Concepts Simplified

Qualified Immunity

A doctrine that can shield individual officials from damages unless the plaintiff shows the unlawfulness was “clearly established” at the time—meaning a reasonable official would have known the conduct was unconstitutional.

Public Forum (and “Designated” Public Forum)

When the government opens a space for the public to speak (like an open comment section), it generally cannot pick winners and losers based on viewpoint. It may impose reasonable, viewpoint-neutral rules, and it may close the forum, but while it is open it cannot discriminate based on perspective.

Viewpoint Discrimination vs. Content Discrimination

Content discrimination regulates subject matter (e.g., “no comments about RVs”). Viewpoint discrimination targets a position on a subject (e.g., “comments criticizing RV regulation are banned”). Viewpoint discrimination is treated as especially unconstitutional.

Government Speech

When the government is itself the speaker (or is curating a message as its own), it can choose what to say. But when it creates a platform for private speakers—especially without policies or control—the speech is not attributed to the government, and First Amendment forum rules apply.

5. Conclusion

Schulte v. Leners applies settled First Amendment principles to a modern, but increasingly common, fact pattern: interactive comment features on official government websites. The Seventh Circuit held that by September 2022 it was clearly established that an official cannot selectively delete comments based on viewpoint in an open, unregulated municipal website comment section—and cannot claim qualified immunity by calling the issue “novel” or by relabeling criticism as “disrespect.” The decision reinforces a simple constitutional line: governments may close an online forum, or regulate it with clear and viewpoint-neutral rules, but they may not keep it open and silence critics.