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.
