DC Circuit guts federal social media rules blocking animal testing comments

WASHINGTON (CN) — A D.C. Circuit panel sided with the animal welfare group PETA in its First Amendment suit over social media regulations that barred comments about animal testing and cruelty on the National Institutes of Health's Facebook and Instagram pages.

The three-judge panel found that while comment section moderation may be warranted, a rule restricting “off-topic” comments was unreasonable and thus unconstitutional and reversed a lower court's ruling in the government's favor.

“The right to ‘praise or criticize government agents’ lies at the heart of the First Amendment’s protections, and censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discount over NIH’s work,” U.S. Circuit Judge Brad Garcia wrote in the 18-page opinion. 

The NIH had a policy of filtering out comments on its platforms that included PETA's name, the organization complained in its September 2021 lawsuit, as well as those that had references to animals like chimpanzees, hamsters and mice; used the terms "torture," "marijuana," "Hitler" or "Nazi;" or included the names of two researchers who conducted experiments on monkeys. 

In one instance, the agency hid from public view an Instagram comment by animal welfare activist Madeline Krasno, a plaintiff in the suit, on a post about Covid-19. “It’s time we had an open conversation about all the animal testing you fund. What a waste of life and resources,” Krasno wrote.

The agency removed the terms “PETA” and “PETALatino” from its keyword restrictions on both Instagram and Facebook in December 2021 and removed “#stopanimaltesting” and “#stoptesting” from its Instagram filters. A lower court then awarded the NIH summary judgment, findings its restrictions to be viewpoint-neutral and reasonable in a limited public forum, a First Amendment standard that grants the government the ability to restrict certain speech.

The D.C. Circuit on Tuesday rejected PETA’s argument that the NIH's comment blocker targeted animal advocacy speech, but said the agency’s restriction of “off-topic” comments was unreasonable because the it regularly posts content featuring research conducted using animal experiments or researchers who have conducted such experiments. 

Garcia found an example in a post on the NIH's Instagram featuring a photo of the eye of a zebrafish. As its caption explained, the animal was anesthetized and photographed using a powerful microscope with lasers to illuminate the fish. But a comment such as “animal testing on zebrafish is cruel” would have been filtered out for using certain restricted keywords. 

“It is unreasonable to think that comments related to animal testing are off-topic for such a post,” the Biden appointee wrote. U.S. Circuit judges Karen Henderson and Patricia Millett, respective Ronald Reagan and Barack Obama appointees, joined the ruling.

The panel noted that a substantial portion of the agency’s posts either directly depict animals or discuss research conducted on them, rebuffing the agency's argument that the zebrafish post was an outlier.

“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,” Garcia wrote. 

Further, the off-topic policy was unreasonable because it is “inflexible and unresponsive to context,” Garcia said, distinguishing the restriction from the pornography filters at the heart of the Supreme Court case United States v. American Library Association. Unlike the comment section restrictions, library patrons in that case could circumvent the filters by asking a librarian to unblock an erroneously blocked site, which led the high court to determine the policy was reasonable. 

In closing, Garcia warned that the off-topic policy appeared to be skewed sharply against PETA’s viewpoint that the NIH should stop funding animal testing, writing, “The government should tread carefully when enforcing any speech restriction to ensure it is not viewpoint discriminatory and does not inappropriately censor criticism or exposure of governmental actions.”

PETA's Senior Vice President Kathy Guillermo applauded the panel's decision, calling it a "win for transparency, the public, animals and government accountability," in an emailed statement.

"This landmark decision reinforces that NIH can no longer 'distort' messages to defend its use and funding of cruel, pointless experiments on animals, and now it needs to modernize its entire research program rather than control the discourse to support its own backwards paradigm," Guillermo said.

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