We have previously reported on various social media cases involving public entities, and a recent decision by the United States Court of Appeals for the D.C. Circuit in People for the Ethical Treatment of Animals v. Tabak addressed a new wrinkle: keyword censorship. At issue was the National Institute of Health’s social media restrictions. On the NIH’s Facebook and Instagram feeds, the NIH restricted comments on various unwanted forms of speech, one of which was “off-topic posts.” The NIH sought to apply that restriction by blocking comments that included any one of several keywords. Among the blacklisted keywords were “animal,” “testing,“ and “cruel,“ suggesting that NIH intended to block comments that addressed animal cruelty, which is where PETA comes in.
After finding that many of its comments on the NIH website were being blocked by the keyword restrictions, PETA sued the NIH, claiming that the NIH’s social media moderation policy violated the First Amendment. The NIH argued that it could block “off-topic“ comments on its social media because it is government-controlled property and a limited public forum, where the government can impose certain restrictions on speech as long as they are neutral and reasonable. The court agreed that NIH Facebook and Instagram pages were limited public forums.
However, the court nevertheless concluded that the NIH failed to “‘draw a reasonable line,‘ informed by ‘objective, workable standards‘ between what is considered on-topic and what is considered off-topic.“ For example, the court noted that NIH did not define what is “off-topic,“ the keyword blocking was “inflexible and unresponsive to context,“ and it banned words like “animal“ even when the original NIH post related to an animal, suggesting that it was blocking comments that bore a reasonable relationship to the original post by the NIH. In particular, the court noted that the blacklisted keywords tended to block a certain viewpoint that was critical of NIH, suggesting that NIH’s restrictions were not viewpoint neutral.
This case illustrates the need for public school districts to tread carefully in managing how they moderate social media comments. The court’s decision against the NIH shows that while some restrictions on social media speech are allowed, they must be reasonable and viewpoint neutral.
Please contact a member of our Labor/Personnel practice group with questions.
Source: People for the Ethical Treatment of Animals v. Tabak (D.C. Cir. 2024)
