NIH loses latest round of free speech lawsuit filed by animal rights activists

A U.S. appeals court in Washington, D.C., today found that the U.S. National Institutes of Health violated free speech protections when it automatically hid comments on its social media pages containing keywords typically used by opponents of NIH-funded animal research.

Reversing a lower court decision, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that NIH was on the wrong side of the First Amendment when it used filters to hide from public view comments with keywords including “monkey,” “experiment,” and “torture” on its Facebook and Instagram pages. The agency had done so, it said, in order to enforce “off-topic” rules it has established for social media comments.

“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,” wrote the judges, two of whom were appointed by Democratic presidents.

The permanent policy, and the fact NIH didn’t try to manually resurrect relevant comments that were automatically hidden, “reinforces its unreasonableness,” the judges added—especially given the lack of evidence that comments protesting animal research hurt the agency’s public communication efforts. They ordered the case returned to the lower court with instructions that it rule in favor of the plaintiffs.

An NIH spokesperson said the agency does not comment on pending litigation.

The decision “is a major victory” for free speech, said Stephanie Krent of the Knight First Amendment Institute at Columbia University, the lead attorney representing the plaintiffs. “The court’s opinion makes clear that [government] 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.”

“This is a win for transparency, the public, animals, and government accountability,” said Kathy Guillermo, senior vice president of the animal activist group People for the Ethical Treatment of Animals (PETA), the lead plaintiff in the case. PETA and two individuals, Madeline Krasno and Ryan Hartkopf, sued NIH 3 years ago after realizing the agency was hiding their comments.

The D.C. appeals court also found that in blocking the comments, NIH likely engaged in another free speech violation, known as “viewpoint discrimination” and warned it to “tread carefully.” But the court didn’t rule on this because it had already established that the unreasonableness of the agency’s policy violated the First Amendment.

“The right to ‘praise or criticize governmental agents’ lies at the heart of the First Amendment’s protections,” the court wrote, citing earlier case law. “NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint that the agency should stop funding animal testing by filtering terms such as ‘torture’ and ‘cruel,’ not to mention terms previously included such as ‘PETA’ and ‘#stopanimaltesting.’”

(NIH voluntarily removed the last two words from its keyword list soon after the lawsuit was first filed.)

NIH has several options now. It could comply with the decision and remove the comment-hiding keywords from its content moderation settings. It could request an en banc hearing, in which all 15 members of the appeals court pass judgement on its appeal. Or it could appeal directly to the U.S. Supreme Court.

https://www.science.org/content/article/nih-loses-latest-round-free-speech-lawsuit-filed-animal-rights-activists

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