In a big win for free speech online, the U.S. Court of Appeals for the D.C. Circuit ruled that a federal agency violated the First Amendment when it blocked animal rights activists from commenting on the agency’s social media pages. We filed an amicus brief in the case, joined by the Foundation for Individual Rights and Expression (FIRE).
People for the Ethical Treatment of Animals (PETA) sued the National Institutes of Health (NIH) in 2021, arguing that the agency unconstitutionally blocked their comments opposing animal testing in scientific research on the agency’s Facebook and Instagram pages. (NIH provides funding for research that involves testing on animals.)
NIH argued it was simply implementing reasonable content guidelines that included a prohibition against public comments that are “off topic” to the agency’s social media posts. Yet the agency implemented the “off topic” rule by employing keyword filters that included words such as cruelty, revolting, tormenting, torture, hurt, kill, and stop to block PETA activists from posting comments that included these words.
NIH’s Social Media Pages Are Limited Public Forums
The D.C. Circuit first had to determine whether the comment sections of NIH’s social media pages are designated public forums or limited public forums. As the court explained, “comment threads of government social media pages are designated public forums when the pages are open for comment without restrictions and limited public forums when the government prospectively sets restrictions.”
The court concluded that the comment sections of NIH’s Facebook and Instagram pages are limited public forums: “because NIH attempted to remove a range of speech violating its policies … we find sufficient evidence that the government intended to limit the forum to only speech that meets its public guidelines.”
The nature of the government forum determines what First Amendment standard courts apply in evaluating the constitutionality of a speech restriction. Speech restrictions that define limited public forums must only be reasonable in light of the purposes of the forum, while speech restrictions in designated public forums must satisfy more demanding standards. In both forums, however, viewpoint discrimination is prohibited.
NIH’s Social Media Censorship Violated Animal Rights Activists’ First Amendment Rights
After holding that the comment sections of NIH’s Facebook and Instagram pages are limited public forums subject to a lower standard of reasonableness, the D.C. Circuit then nevertheless held that NIH’s “off topic” rule as implemented by keyword filters is unreasonable and thus violates the First Amendment.
The court explained that because the purpose of the forums (the comment sections of NIH’s social media pages) is directly related to speech, “reasonableness in this context is thus necessarily a more demanding test than in forums that have a primary purpose that is less compatible with expressive activity, like the football stadium.”
In rightly holding that NIH’s censorship was unreasonable, the court adopted several of the arguments we made in our amicus brief, in which we assumed that NIH’s social media pages are limited public forums but argued that the agency’s implementation of its “off topic” rule was unreasonable and thus unconstitutional.
Keyword Filters Can’t Discern Context
We argued, for example, that keyword filters are an “unreasonable form of automated content moderation because they are imprecise and preclude the necessary consideration of context and nuance.”
Similarly, the D.C. Circuit stated, “NIH’s off-topic policy, as implemented by the keywords, is further unreasonable because it is inflexible and unresponsive to context … The permanent and context-insensitive nature of NIH’s speech restriction reinforces its unreasonableness.”
Keyword Filters Are Overinclusive
We also argued, related to context, that keyword filters are unreasonable “because they are blunt tools that are overinclusive, censoring more speech than the ‘off topic’ rule was intended to block … NIH’s keyword filters assume that words related to animal testing will never be used in an on-topic comment to a particular NIH post. But this is false. Animal testing is certainly relevant to NIH’s work.”
The court acknowledged this, stating, “To say that comments related to animal testing are categorically off-topic when a significant portion of NIH’s posts are about research conducted on animals defies common sense.”
NIH’s Keyword Filters Reflect Viewpoint Discrimination
We also argued that NIH’s implementation of its “off topic” rule through keyword filters was unreasonable because those filters reflected a clear intent to censor speech critical of the government, that is, speech reflecting a viewpoint that the government did not like.
The court recognized this, stating, “NIH’s off-topic restriction is further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint that the agency should stop funding animal testing by filtering terms such as ‘torture’ and ‘cruel,’ not to mention terms previously included such as ‘PETA’ and ‘#stopanimaltesting.’”
On this point, we further argued that “courts should consider the actual vocabulary or terminology used … Certain terminology may be used by those on only one side of the debate … Those in favor of animal testing in scientific research, for example, do not typically use words like cruelty, revolting, tormenting, torture, hurt, kill, and stop.”
Additionally, we argued that “a highly regulated social media comments section that censors Plaintiffs’ comments against animal testing gives the false impression that no member of the public disagrees with the agency on this issue.”
The court acknowledged both points, stating, “The right to ‘praise or criticize governmental agents’ lies at the heart of the First Amendment’s protections … and censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discourse over NIH’s work.”
We are pleased that the D.C. Circuit took many of our arguments to heart in upholding the First Amendment rights of social media users in this important internet free speech case.
