In last week's People for Ethical Treatment of Animals v. Tabak, the D.C. Circuit (in an opinion by Judge Bradley Garcia, joined by Judges Karen LeCraft Henderson and Patricia Millett), held that NIH's automated filtering of comments on Facebook and Instagram pages was unconstitutional. The filtering was supposedly aimed at blocking "off-topic" posts, but it did so by filtering out words "such as … 'animal,' 'testing,' and 'cruel.'" This was unconstitutional, the court held because a government-agency-run comment section was a "limited public forum," where restrictions on public speech had to be "reasonable in light of the purpose served by the forum" and "viewpoint neutral," requirements that weren't satisfied here:
Reasonableness is to be assessed in light of the purpose of the forum, which here is to "communicate and interact with citizens," and to "encourage respectful and constructive dialogue" through the public's comments. 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 [speech by attendees at a] football stadium …. In service of those purposes, NIH's off-topic restriction furthers the "permissible objective[s]," of creating comment threads dedicated to each post's topic and allowing the public to engage on that topic, instead of being distracted or overwhelmed by off-topic comments.
But NIH must "draw a reasonable line," informed by "objective, workable standards," between what is considered on-topic and what is considered off-topic. "Although there is no requirement of narrow tailoring," the government "must be able to articulate some sensible basis for distinguishing what may come in from what must stay out." This NIH has not done.
In the context of NIH's posts—which often feature research conducted using animal experiments or researchers who have conducted such experiments—to consider words related to animal testing categorically "off-topic" does not "ring[ ] of common-sense." For example, consider NIH's July 20, 2021 Instagram post, which featured a photo of the eye of a zebrafish. The caption read, in part: "This picture of an anesthetized adult zebrafish was taken with a powerful microscope that uses lasers to illuminate the fish." It is unreasonable to think that comments related to animal testing are off-topic for such a post. Yet a comment like "animal testing on zebrafish is cruel" would have been filtered out because "animal," "testing," and "cruel" are all blocked by NIH's keyword filters.
The government admits that animal testing comments would be on-topic for that post and instead argues that the off-topic rule is still reasonable because a reasonable policy may be both over- and underinclusive. That argument assumes the zebrafish post is an outlier. But the record indicates otherwise. A substantial portion of the NIH posts included in the stipulated record either directly depict animals or discuss research conducted on animals. 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.
Worse, the government fails to provide any definition of "off-topic" in its Comment Guidelines, to its social media moderators, or even in this litigation. See Oral Arg. Tr. 29:4–7 (NIH arguing that "off topic" is a "commonly understood" term but providing no explicit definition); id. at 29:20–21 (NIH stating that "[t]here's nothing in the comment guidelines that define[s] what off topic means"); id. at 54:22–55:25 (NIH stating its moderators use their "experience"). And without such guidance, in this context at least, it is far from clear where the line between off-topic and on-topic lies.
Take another recurring example from the record: An NIH post highlighting a study by a researcher who regularly conducts experiments on animals but did not conduct any such experiments in the particular study highlighted.
One could argue that a comment criticizing that researcher's general use of animal testing is on-topic, because the post introduced the researcher as a "topic" of the post. But one could also reasonably think that such a comment is off-topic because the specific study highlighted is the relevant "topic," and the study itself did not involve animal testing. Simply announcing a rule against "off-topic" comments does not provide "objective, workable standards" to guide either NIH's social media moderators or the public as to how to divine "what may come in from what must stay out." Though we have never required a speech restriction to demonstrate "perfect clarity," the problem with NIH's off-topic rule goes "beyond close calls on borderline or fanciful cases." Moreover, while NIH claimed in this litigation that there was an "alarming number of repetitive, off-topic" comments about animal testing, NIH provided no line (either to us or to its own social media moderators) demarcating what is an acceptable number of off-topic posts and what is too much.
"It is 'self-evident' that an indeterminate prohibition carries with it '[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.'" It is perhaps no surprise then that NIH's moderators originally added terms like "PETA" and "#stopanimaltesting" to the keyword filters which were then, during this litigation, removed once NIH realized those terms "may have signaled a certain viewpoint." The district court forgave these keyword choices as "an overzealous attempt by a NIH social media manager to tamp down irrelevant posts." To us, however, these missteps are confirmation that NIH's policy does not "guide[ ]" its social media managers with any "objective, workable standards." That undermines the reasonableness of the NIH policy.
NIH's off-topic policy, as implemented by the keywords, is further unreasonable because it is inflexible and unresponsive to context. In American Library Association, for example, even though the pornography filters erroneously blocked some websites that did not show pornographic content, the Supreme Court held that the policy was reasonable in part because library patrons could easily disable the filtering software by asking a librarian to unblock the site either temporarily for their own use or permanently for use by others.
By contrast, NIH's moderation policy lacks comparable features. The keyword filters apply automatically to comments on all NIH posts. They do not account for the topic of any given post or the context in which a comment is made—for example, a long comment that is generally responsive to the post would be filtered out if it uses any one of the keywords. Further, NIH does not employ any manual review of comments to restore otherwise on-topic comments that have been removed, turn off its filters when it posts content that is likely to make certain keywords relevant, or even routinely review its keyword list to consider whether its keywords should be removed (at least absent a lawsuit). Users seemingly have little, if any, ability to ask NIH to restore their comments; indeed, they typically are not notified when their comments are filtered out. The permanent and context-insensitive nature of NIH's speech restriction reinforces its unreasonableness, especially absent record evidence that comments about animal testing materially disrupt NIH's ability to meet its objective of communicating with citizens about NIH's work.
Finally, 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." 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. The government should tread carefully when enforcing any speech restriction to ensure it is not viewpoint discriminatory and does not inappropriately censor criticism or exposure of governmental actions.
For all of these reasons, we hold that NIH's off-topic restriction, as currently presented, is unreasonable under the First Amendment. We therefore do not separately address whether the specific keywords used to implement the off-topic rule are, by themselves, viewpoint discriminatory….
PETA was represented by Stephanie Krent, Ashley Ridgway, Katherine A. Fallow, Alexia Ramirez, and Jameel Jaffer.
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