DC Court of Appeals Concludes Federal Agency’s Enforcement of a Social Media Moderation Policy Prohibiting “Off-Topic” Posts Violated the First Amendment

On July 30, 2024, the U.S. Court of Appeals for the District of Columbia issued a decision in People for the Ethical Treatment of Animals et al. v. Tabak (No. 23-5110), holding that the National Institute of Health’s (“NIH”) implementation of a social media policy prohibiting “off-topic” comments was unconstitutional under the First Amendment.

The NIH is a federal agency, charged with performing and supporting biomedical and behavioral research. The agency maintains verified Facebook and Instagram pages to “communicate and interact with citizens” about agency-related work. Comments to these social media pages are governed by comment guidelines authored by NIH and enforced through default filters on Facebook and Instagram as well as customizable keyword filters. Using keyword filters, NIH filtered out comments with words that generally related to animal testing, such as PETA, PETA Latino, animal(s), mouse, chimpanzee(s), cruel, and cruelty. As a result, comments posted by the People for the Ethical Treatment of Animals (“PETA”) and two animal rights advocates – who use social media to advocate against animal testing and funding of animal testing – were filtered out and not viewable to the public.

PETA and the two animal rights advocates sued NIH, alleging that NIH’s use of keyword filters violated their First Amendment rights. Since the parties agreed that NIH’s comment threads constituted government property, the applicable standard for evaluating PETA’s First Amendment claims turned on the nature of the forum. The district court concluded that the comment threads were a limited public forum (i.e., a Government created forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects). In a limited public forum, speech restrictions are permissible if they are viewpoint neutral and reasonable in light of the purpose served by the forum. The district court granted summary judgment in favor of NIH on the basis that NIH’s keyword filters were viewpoint-neutral and reasonable restrictions.

On appeal, the Court of Appeals agreed that the comment threads were a limited public forum. It ruled, however  that NIH’s “off-topic” restriction, as implemented through its keyword filters, was not reasonable in light of the purpose of the forum.

the court explained that the reasonableness of a speech restriction is assessed in light of the forum’s purpose. Here, the intent of the NIH social media pages was to communicate and interact with citizens and to encourage respectful and constructive dialogue through the public’s comments. Although NIH’s off-topic restriction furthered those permissible objectives by creating comment threads dedicated to each post’s topic and allowing the public to engage on that topic free of distraction, NIH failed to articulate a workable standard for distinguishing “off-topic” from “on-topic.” Moreover, the Court noted that to consider words related to animal testing categorically “off-topic” defied common sense, given that a significant portion of NIH’s posts were about research conducted on animals. The court added that the application of the keyword filter was also unreasonable because it was inflexible and did not account for the context in which comments were made. Finally, the Court reasoned that NIH’s “off-topic” restriction was further compromised because NIH chose to moderate its comment threads in a way that skewed sharply against the viewpoint that the agency should stop funding animal testing. The court therefore held that the “off-topic” restriction was unreasonable under the First Amendment.

The Court of Appeals’ ruling is an important reminder that governments should be cautious when enforcing speech restrictions in government-created forums to ensure that  the rules are not based on viewpoint and do not inappropriately censor criticism or exposure of governmental actions. We are pleased to assist all public sector agencies and governmental bodies in all matters related to the First Amendment and social media policies. If you have questions regarding the content of this update, please contact our office.

This update is provided for informational purposes only and should not be considered legal advice.