• by Wendy Davis  @wendyndavis, April 5, 2023

Siding against animal rights activists, a federal judge ruled that the National Institutes of Health did not violate the First Amendment by blocking comments on Facebook and Instagram based on keywords associated with criticism of animal experimentation.

In a decision issued late last week, U.S. District Court Judge Beryl Howell in Washington, D.C. ruled that the government's policy reflected a “viewpoint-neutral” and “reasonable” attempt to remove off-topic comments.

The ruling dismissed a lawsuit brought in 2021 by the People for the Ethical Treatment of Animals and other activists.

The advocates say they plan to appeal. “Government social media pages should be forums for vibrant public debate, not anti-animal echo chambers,” Kathy Guiellermo, senior vice president for the activist organization, stated.

The activists' lawyers include attorneys with the Knight First Amendment Institute at Columbia University, which previously sued former President Donald Trump for blocking critics on Twitter.

People for the Ethical Treatment of Animals argued to Howell that the National Institutes of Health unconstitutionally blocked comments with keywords like “torture,” “hurt,” “monkey” and “primate.:”

The group contended that those keyword blocks violated the First Amendment, arguing that they were a form of viewpoint discrimination by the government.

The National Institutes of Health told Howell the blocks reflected an attempt to prevent “off-topic and inflammatory comments.”

But the activists countered that suppressing speech merely because it is “inflammatory” is a form of viewpoint discrimination that violates the First Amendment.

They also said the agency allows web users to make off-topic comments, provided they're not related to animal-rights advocacy. For instance, the activists argued, one commenter was allowed to ask a question about the Johnson & Johnson COVID-19 vaccine in a comment to a post about research regarding adopted children.

Howell agreed with People for the Ethical Treatment of Animals that the filtering system was both overinclusive, because it excluded comments that were relevant to specific posts by the government, and underinclusive, because it left up off-topic comments about other subjects.

Nevertheless, she said, the keyword filter reflects “a reasonable approach to maintaining orderly, on-topic comment threads.”

“The accessibility and ease of internet engagement presents commenting policy enforcers with a Sisyphean task -- one for which the standards of consistency to which the government is held cannot be so exacting as might be possible on a smaller scale,” the judge wrote. “Otherwise, if the standard is perfectly consistent enforcement, it is hard to imagine any social media commenting policy that would survive the test of reasonableness without severely throttling the public’s ex ante access to the forum.”

Santa Clara University law professor Eric Goldman, who has closely followed legal disputes over content moderation by the government, called the opinion “disappointing.”

“An appellate court could very well reach a different conclusion,” Goldman says, adding that the keywords blocked by the National Institutes of Health were “clearly not viewpoint neutral.”

“I support the idea that the government can engage in management of off-topic comments,” he said, but added that the phrase shouldn't be a codeword for viewpoint discrimination.