Animal rights activists and a free speech institute at Columbia University are suing the National Institutes of Health (NIH) and its parent department for blocking comments on the agency’s social media sites that criticize agency-funded research on animals.
NIH has its Facebook and Instagram filters set to block comments containing phrases and words such as “#stopanimaltesting,” “PETA,” and “cruel,” alleges the suit, filed 9 September in federal court by People for the Ethical Treatment of Animals (PETA), the Animal Legal Defense Fund, and the Knight First Amendment Institute. The groups argue the practice violates animal activists’ constitutional rights to free speech.
“It’s quite obvious that the government cannot kick someone out for expressing a dissenting or controversial view in a public meeting and it should be equally plain to the government that it cannot do so by using social media filtering either,” says Stephanie Krent, a staff attorney at the Knight institute. “The First Amendment protects people’s rights to express their views—even and especially when those views are critical of the government’s practices.”
PETA employees and two activists who are plaintiffs on the suit discovered the NIH filters when they posted comments critical of animal experiments. They (and sometimes their friends) could see the comments on their own Facebook or Instagram pages, but the postings did not appear on NIH’s pages. A PETA staffer managed to get around the filter with creative spelling: In a comment that did appear on NIH’s Facebook site, she wrote “animals” as “an1mals,” and “macaques” instead of monkeys.
One plaintiff, Ryan Hartkopf, a digital health engineer in Madison, Wisconsin, investigated further by filing public records requests for screenshots of NIH’s Facebook and Instagram filters. A response from NIH indicated its filters cast a broad net: They block profane terms, but also words including “animal,” “chimp,” “mice,” “hamster,” “marmosets,” “monkey,” “primate,” “stop,” “hurt,” “torture,” and even “experiment.” (“Cannabis” and “marijuana” are also on one list.)
The Department of Health and Human Services (HHS), NIH’s parent agency, blocks comments on its Facebook page with the word “monkey,” the suit alleges.
The complaint says courts have found that “government-run social media accounts that are open for comments from the general public are public forums,” and that such sites “may not, consistent with the First Amendment, exclude speech from such forums based on viewpoint or unjustifiable content-based restrictions.”
Two U.S. circuit court opinions have ruled against public officials who tried to block social media critics. One, an en banc ruling from the Fourth Circuit Court of Appeals, found that a county supervisor couldn’t block a critic who commented on her official county supervisor Facebook page. Another opinion from the Second Circuit Court of Appeals found that then-President Donald Trump could not block users from his @realDonaldTrump Twitter account because he disagreed with their speech. (The Supreme Court later vacated the opinion as moot because Trump’s account had been disabled.)
Although blocking a commentator is different than blocking a particular word or words, Krent argues the latter form of silencing “is even more invidious. … Because the people whose comments have been hidden generally don’t know they have had their comments suppressed in this way. … They believe they are contributing” to a public dialogue.
The plaintiffs make a compelling argument, says Joyce Tischler, a professor of animal law at Lewis & Clark Law School. “If the U.S. government wants to speak in a public forum, it can’t block information, content, or statements that it might find offensive or bothersome. It might not be the way I would say it, but if someone wants to say that animal research is torture … blocking it is a violation of that person’s First Amendment rights,” she says. (Tischler founded the Animal Legal Defense Fund but is no longer associated with it.)
The suit, filed with the U.S. District Court for the District of Columbia, asks that the court declare that NIH and HHS acted unconstitutionally, require them to remove the filters blocking keywords associated with animal rights activism, and require them to reimburse the plaintiffs’ legal costs.
NIH did not respond to a request for comment by press time.