Intern Muhammad Essa contributed to this post.
EFF, along with the Foundation for Individual Rights and Expression (FIRE), filed a brief in the U.S. Court of Appeals for the D.C. Circuit urging the court to reverse a lower court ruling that upheld the censorship of public comments on a government agency’s social media pages. The district court’s decision is problematic because it undermines our right to freely express opinions on issues of public importance using a modern and accessible way to communicate with government representatives.
People for the Ethical Treatment of Animals (PETA) sued the National Institutes of Health (NIH), arguing that NIH blocks their comments against animal testing in scientific research on the agency’s Facebook and Instagram pages, thus violating of the First Amendment. NIH provides funding for research that involves testing on animals from rodents to primates.
NIH claims to apply a general rule prohibiting public comments that are “off topic” to the agency’s social media posts—yet the agency implements this rule by employing keyword filters that include words such as cruelty, revolting, tormenting, torture, hurt, kill, and stop. These words are commonly found in comments that express a viewpoint that is against animal testing and sympathetic to animal rights.
First Amendment law makes it clear that when a government agency opens a forum for public participation, such as the interactive spaces of the agency’s social media pages, it is prohibited from censoring a particular viewpoint in that forum. Any speech restrictions that it may apply must be viewpoint-neutral, meaning that the restrictions should apply equally to all viewpoints related to a topic, not just to the viewpoint that the agency disagrees with.
EFF’s brief argues that courts must approach with scepticism a government agency’s claim that its “off topic” speech restriction is viewpoint-neutral and is only intended to exclude irrelevant comments. How such a rule is implemented could reveal that it is in fact a guise for unconstitutional viewpoint discrimination. This is the case here and the district court erred in ruling for the government.
For example, EFF’s brief argues that NIH’s automated keyword filters are imprecise—they are incapable of accurately implementing an “off topic” rule because they are incapable of understanding context and nuance, which is necessary when comparing a comment to a post. Also, NIH’s keyword filters and the agency’s manual enforcement of the “off topic” rule are highly underinclusive—that is, other people's comments that are “off topic” to a post are often allowed to remain on the agency’s social media pages. Yet PETA’s comments against animal testing are reliably censored.
Imprecise and underinclusive enforcement of the “off topic” rule suggests that NIH’s rule is not viewpoint-neutral but is really a means to block PETA activists from engaging with the agency online.
EFF’s brief urges the D.C. Circuit to reject the district court’s erroneous holding and rule in favor of the plaintiffs. This would protect everyone’s right to express their opinions freely online. The free exchange of opinions informs public policy and is a crucial characteristic of a democratic society. A genuine representative government must not be afraid of public criticism.