DC Circuit rules for PETA in First Amendment challenge to agency's social media comment filters
The National Institutes of Health violated the First Amendment when it used keyword filters that blocked Facebook and Instagram comments that criticized animal testing, a federal appeals court has ruled. (Image from Shutterstock)
The National Institutes of Health violated the First Amendment when it used keyword filters that blocked Facebook and Instagram comments that criticized animal testing, a federal appeals court has ruled.
The U.S. Court of Appeals for the District of Columbia Circuit ruled for the nonprofit People for the Ethical Treatment of Animals and two animal rights activists in a July 30 opinion.
Judge Bradley N. Garcia, an appointee of President Joe Biden, wrote the panel opinion.
The NIH comment policy had banned off-topic posts on Facebook and Instagram with the help of a keyword filter. Comments were hidden if they used such keywords as “PETA,” “animal(s),” “chimpanzee(s),” “monkey(s),” “cruel,” “torment(ing),” “torture(s)” and the hashtag #stopanimaltesting.
After the lawsuit was filed in September 2021, the NIH changed its keyword filter to allow references to PETA and to animal testing hashtags. But the agency did not lift the ban on other words.
The appeals court concluded that the comment threads are limited public forums because the NIH sought to limit comments to discussions of certain subjects. Besides banning off-topic posts, the comment policy banned obscene or discriminatory language, endorsements of commercial products, repetitive posts, spam and links to external sites.
In a limited public forum, speech restrictions can be based on a subject matter if they are reasonable and viewpoint neutral, the appeals court said. The NIH policy fails that test because it is unreasonable under the First Amendment, the D.C. Circuit concluded.
Because a substantial number of NIH posts depict animals or discuss animal research, it “defies common sense” to say comments related to animal testing are categorically off topic, the appeals court said.
The off-topic policy implemented by keyword restrictions “is further unreasonable because it is inflexible and unresponsive to context,” the D.C. Circuit said. In addition, the agency’s moderation of comment threads “skews sharply against the appellants’ viewpoint that the agency should stop funding animal testing.”
“The right to ‘praise or criticize governmental agents’ lies at the heart of the First Amendment’s protections,” the appeals court said. “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.”
PETA called the decision “a major victory” in a July 30 press release.
The plaintiffs were represented by the Knight First Amendment Institute at Columbia University, the Animal Legal Defense Fund and the PETA Foundation.
Courthouse News Service covered the decision, People for the Ethical Treatment of Animals v. Tabak.
