People for the Ethical Treatment of Animals v. Lawrence Tabak
Not Reported Yet (2024)
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Rule of Law:
In a government-created limited public forum, speech restrictions must be viewpoint-neutral and reasonable in light of the forum's purpose; an 'off-topic' restriction implemented through inflexible keyword filters, which lack objective standards and broadly block terms that are often relevant to the forum's subject matter, is unreasonable and thus unconstitutional under the First Amendment.
Facts:
- The National Institutes of Health (NIH) is a federal agency that performs and supports biomedical and behavioral research.
- NIH maintains official Facebook and Instagram pages to communicate with citizens about agency-related work, posting research highlights and news, and allowing public comments.
- NIH's publicly available Comment Guidelines, which state that its 'blogs are not intended to serve as public forums,' prohibit 'off-topic posts' and ask that comments be 'respectful and relevant to the specific topic.'
- To enforce its guidelines, NIH used custom keyword filters on its social media pages to automatically hide comments containing words such as 'animal,' 'testing,' 'cruel,' 'PETA,' and names of specific researchers.
- People for the Ethical Treatment of Animals (PETA) and individual advocates Madeline Krasno and Ryan Hartkopf frequently commented on NIH’s social media to protest NIH’s funding of animal testing.
- Many comments made by PETA, Krasno, and Hartkopf were automatically hidden by NIH's keyword filters, including a comment by Krasno on an NIH Instagram post that mentioned 'animal testing.'
- A substantial portion of NIH's own posts directly depicted animals or discussed research conducted on animals.
- NIH’s keyword filters applied automatically and inflexibly to comments on all posts, without manual review, contextual consideration, or notification to users when their comments were filtered out.
Procedural Posture:
- On September 9, 2021, People for the Ethical Treatment of Animals (PETA), Madeline Krasno, and Ryan Hartkopf (Appellants) sued the National Institutes of Health (NIH) and the Department of Health and Human Services (HHS) in the U.S. District Court for the District of Columbia, alleging violations of their First Amendment rights.
- In December 2021, during the litigation, NIH removed specific terms like 'PETA' from its keyword filters on both platforms, and '#stopanimaltesting' and '#stoptesting' from its Instagram filters.
- The appellants, with the government's consent, filed a motion to dismiss their claims against HHS in the district court, which the district court granted, ensuring the finality of the order for appeal purposes.
- The parties subsequently filed cross-motions for summary judgment in the District Court.
- On March 31, 2023, the District Court granted summary judgment in favor of the government (NIH), ruling that NIH's keyword filters were viewpoint-neutral and constituted reasonable restrictions in a limited public forum.
- Appellants appealed the District Court's decision to the United States Court of Appeals for the District of Columbia Circuit.
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Issue:
Is a government agency's social media 'off-topic' comment restriction, implemented via keyword filters, a reasonable restriction in a limited public forum when the filters broadly block terms that are often relevant to the agency's posts and the policy lacks objective, workable standards for application?
Opinions:
Majority - Circuit Judge Garcia
No, a government agency's social media 'off-topic' comment restriction, implemented via keyword filters, is not a reasonable restriction in a limited public forum when the filters broadly block terms that are often relevant to the agency's posts and the policy lacks objective, workable standards for application, rendering it unconstitutional. The court first agreed with the district court that NIH’s comment threads are limited public forums, as NIH signaled its intent to limit discussion to specific subjects through its Comment Guidelines and consistent, albeit imperfect, enforcement efforts with keyword filters. This contrasts with designated public forums where the government intends to open a space for general public discourse. However, in a limited public forum, speech restrictions must be reasonable in light of the forum's purpose and viewpoint neutral. The court found NIH’s 'off-topic' restriction, as implemented by its keyword filters, to be unreasonable. It is unreasonable to categorize words related to 'animal testing' as categorically 'off-topic' when a significant portion of NIH’s own posts directly depict animals or discuss research conducted on animals. Furthermore, NIH failed to provide any definition of 'off-topic' to its moderators or during litigation, meaning there were no 'objective, workable standards' to guide either NIH staff or the public on what constituted permissible speech. This indeterminacy allows for abuse and undermines the policy's reasonableness, as evidenced by NIH's initial inclusion of terms like 'PETA' in its filters. The policy is also inflexible and unresponsive to context, applying automatically to all comments without considering the specific post’s topic or offering a mechanism for review or appeal by users. This lack of adaptability, especially without evidence of material disruption caused by animal testing comments, further supports its unreasonableness. Lastly, the court expressed concern that filtering terms like 'torture' and 'cruel' skewed against the appellants’ viewpoint, potentially distorting public discourse and censoring criticism of governmental actions, which the First Amendment aims to prevent. For these reasons, the court held that NIH’s 'off-topic' restriction is unreasonable under the First Amendment.
Analysis:
This decision is significant for defining the boundaries of government speech regulation on social media, especially concerning comment sections. It clarifies that while government social media can be limited public forums, speech restrictions within them must still be reasonable, clearly defined, and context-sensitive. The ruling sets a higher bar for 'reasonableness' in forums compatible with expressive activity and highlights the dangers of overly broad or opaque content moderation policies, particularly when they disproportionately affect critical viewpoints. This precedent could lead to closer scrutiny of keyword filtering policies across all government agencies and may compel them to adopt more nuanced, context-aware moderation strategies for their online platforms.
