Unfiltered: Four Emojis And An Expletive

The United States Court of Appeals for the District of Columbia Circuit has held that the “off topic” restriction by use of a “keyword” filter of the National Institute of Health violates the First Amendment

Appellants are the nonprofit People for the Ethical Treatment of Animals (“PETA”) and two animal rights advocates, Madeline Krasno and Ryan Hartkopf, who use social media to advocate against animal testing. They frequently commented on the official Facebook and Instagram pages of appellee National Institutes of Health (“NIH”), criticizing NIH’s funding of research conducted on animals. Those efforts ran headfirst into NIH’s social media moderation policy, which prohibits, as relevant here, “off-topic posts.” To enforce this policy, NIH deployed keyword filters—which automatically hide all comments with the chosen keywords— to filter out comments containing words that frequently appeared in posts that it considered “off-topic,” such as the terms “animal,” “testing,” and “cruel.” Appellants’ and all other users’ comments containing those words were thus filtered out and not viewable to the public. Appellants argue that NIH’s policy violates the First Amendment.

We must decide what type of forum NIH’s comment threads are and whether NIH’s social media moderation policy, as implemented through its keyword filters, is constitutional. The district court held that the comment threads were limited public forums and upheld NIH’s speech restrictions as reasonable.

We agree that NIH’s comment threads are limited public forums because the government has signaled its intent to limit the discussion on those threads to specific subjects. But we hold that NIH’s “off-topic” restriction, as implemented through its keyword filters, is not reasonable in light of the purpose of the forum and is therefore unconstitutional under the First Amendment.

The words

On Instagram, the following words were filtered: “PETA, #stopanimaltesting, #stoptesting, #stoptestingonanimals, animal(s), chimpanzee(s), chimps, monkey(s), experiment, hurt(ing), kill, stop, test(ing), testing facility, tortur(ing), pedos, rapist,” as well as four emojis and an expletive.

Holding

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.

(Mike Frisch)