NIH Can’t Remove Negative Comments About Animal Testing From Social Media Pages, Court Rules
The NIH violated the U.S. Constitution when it used keyword filters on its Facebook and Instagram pages to block comments criticizing the agency’s funding of animal testing.
The National Institutes of Health (NIH) violated the U.S. Constitution when it used keyword filters on its Facebook and Instagram pages to block comments criticizing the agency’s funding of animal testing, a federal appeals court in Washington, D.C., ruled.
This news follows renewed criticism of Dr. Anthony Fauci, former director of NIH’s National Institute of Allergy and Infectious Diseases, for lying to Congress during the “Beaglegate” scandal. Beaglegate refers to Fauci’s approval of NIH funding for experiments on beagles, according to the White Coat Waste Project.
Nearly 50% of NIH’s research project funding pays for experiments using dogs, rats, monkeys, mice and other animals, according to the People for the Ethical Treatment of Animals (PETA).
PETA — along with the Animal Legal Defense Fund and the Knight First Amendment Institute at Columbia University — in 2021 sued the NIH and the U.S. Department of Health and Human Services on behalf of PETA and two individual social media users whose comments were removed from NIH posts.
The lawsuit alleged that NIH’s social media pages — which are open for comments from the general public — are “public forums” and that the agency’s policy of automatically blocking comments containing keywords associated with animal rights advocacy, such as “torture” and “cruelty,” unconstitutionally excluded speech from public forums based on viewpoint.
The U.S. Court of Appeals for the District of Columbia Circuit concluded that the NIH’s keyword-blocking policy was “unreasonable under the First Amendment.” It said in its July 30 ruling that the right to praise or criticize governmental agents “lies at the heart of the First Amendment’s protections.”
Sophia Cope, a senior staff attorney with the Electronic Frontier Foundation (EFF) who co-wrote an amicus brief supporting the plaintiffs, told The Defender, “Overall, we were very pleased. This is a strong ruling on the First Amendment and defending the First Amendment rights of social media commenters.”
Stephanie Krent, a staff attorney with the Knight First Amendment Institute who argued the case in April, agreed. She said in a press release that the court’s decision “reaffirms that the First Amendment forecloses government officials and public agencies from muzzling criticism on their official social media accounts.”
“The court’s opinion makes clear,” Kent added, “that officials can’t censor speech just because they disagree with it — and that’s true whether they delete specific comments or rely on digital tools like keyword blocking to do it for them.”
When asked to comment on the ruling, the NIH told The Defender it does not comment on pending litigation.
NIH claim that animal testing comments were off-topic ‘defies common sense’
In the suit, NIH attempted to justify its keyword-blocking policy by saying it was just implementing reasonable content guidelines that included a prohibition against public comments that were “off-topic” to the agency’s social media posts.
However, the District of Columbia Circuit took issue with this. “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.”
The NIH’s grant and funding website describes how animals are used in NIH research.
The court also noted the NIH failed to define “off-topic” in its comment guidelines.
Keywords the NIH had considered off-topic included “torture,” “testing,” “animal,” “monkey” and “primate.”
“Until this lawsuit was filed,” a Knight Institute press release added, “the NIH also suppressed comments mentioning ‘PETA’ or using the hashtag #stopanimaltesting.”
Cope said the court “rightly acknowledged” that the keywords were “clearly only related to one side of the debate regarding animal testing.”
Moreover, the court said the NIH’s keyword-blocking policy was “inflexible and unresponsive to context.” Any and all comments mentioning one of the forbidden terms were removed, regardless of whether or not the comment responded to the topic of a post.
The opinion stated that the policy failed to “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.”
In a blog post about the ruling, EFF said the District of Columbia Circuit first had to determine whether the comment sections of NIH’s social media pages were “designated public forums” or “limited public forums.”
The court concluded the comment sections were “limited public forums” since “comment threads of government social media pages are designated public forums when the pages are open for comment without restrictions and limited public forums when the government prospectively sets restrictions.”
Nonetheless, the court found NIH’s off-topic keyword blocking to violate the First Amendment.
Public dialogue must be allowed
The court also noted that NIH didn’t employ any manual review of comments to restore those that had been inappropriately flagged as “off-topic.”
“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 ruling stated.
Madeline Krasno, one of the plaintiffs, told the Washington Post she began posting online after witnessing animal abuse in a monkey research lab at the University of Wisconsin at Madison.
She later discovered both NIH and the University of Wisconsin were removing her comments, the Post reported.
In addition to suing NIH, Krasno — backed by the Animal Legal Defense Fund — sued Wisconsin. Federal district courts ruled against her in both cases, leading Krasno to appeal.
Krasno’s appeal in the case against the NIH resulted in the District of Columbia Circuit ruling. Her Wisconsin case appeal is still pending.
Animal Legal Defense Fund Managing Attorney Caitlin Hawks told The Defender it’s important that voices like Krasno’s be heard.
“Animal testing often takes place behind closed doors to keep the public in the dark about the harms that are actually taking place,” Hawks said. “It’s imperative that voices critical of animal testing are not suppressed and that public dialogue about these issues is allowed to take place.”