People for the Ethical Treatment Animals v. Tabak

109 F.4th 627

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, et al., Appellants v. Lawrence A. TABAK, in his official capacity as Acting Director ofthe National Institutes of Health and Xavier Becerra,in his official capacity as Secretary of the U.S. Department ofHealth and Human Services, Appellees

No. 23-5110

United States Court of Appeals, District of Columbia Circuit

Argued April 25, 2024

Decided July 30, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:21-cv-02380)

Stephanie Krent argued the cause for appellants. With her on the briefs were Ashley Ridgway, Katherine A. Fallow, Alexia Ramirez, and Jameel Jaffer.

Sophia Cope and David Greene were on the brief for amici curiae Electronic Frontier Foundation and Foundation for Individual Rights and Expression in support of appellants.

Jennifer L. Utrecht, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Daniel Tenny, Attorney.

Before: Henderson, Millett, and Garcia, Circuit Judges.

Garcia, Circuit Judge:

Appellants are the nonprofit People for the Ethical Treatment of Animals ("PETA") and two animal rights advocates, Madeline Krasno and Ryan Hartkopf, who use social media to advocate against animal testing. They frequently commented on the official Facebook and Instagram pages of appellee National Institutes of Health ("NIH"), criticizing NIH's funding of research conducted on animals. Those efforts ran headfirst into NIH's social media moderation policy, which prohibits, as relevant here, "off-topic posts." To enforce this policy, NIH deployed keyword filters—which automatically hide all comments with the chosen keywords—to filter out comments containing words that frequently appeared in posts that it considered "off-topic," such as the terms "animal," "testing," and "cruel." Appellants' and all other users' comments containing those words were thus filtered out and not viewable to the public.

Appellants argue that NIH's policy violates the First Amendment. We must decide what type of forum NIH's comment threads are and whether NIH's social media moderation policy, as implemented through its keyword filters, is constitutional. The district court held that the comment threads were limited public forums and upheld NIH's speech restrictions as reasonable.

We agree that NIH's comment threads are limited public forums because the government has signaled its intent to limit the discussion on those threads to specific subjects. But we hold that NIH's "off-topic" restriction, as implemented through its keyword filters, is not reasonable in light of the purpose of the forum and is therefore unconstitutional under the First Amendment.

I

A

The parties stipulated to the following facts. See Joint Stipulation of Facts ("Jt. Stip."), People for the Ethical Treatment of Animals v. Tabak ("PETA"), No. 21-cv-2380 (D.D.C. Feb. 11, 2022), ECF No. 28. NIH is the primary federal agency charged with performing and supporting biomedical and behavioral research. It maintains verified Facebook and Instagram pages to "communicate and interact with citizens" about agency-related work. Jt. Stip. ¶ 36. NIH often posts highlights of NIH-funded researchers and their research, interviews with experts, and news updates. Posts are viewable by the public, and Facebook and Instagram users can comment on them.

NIH's Comment Guidelines govern comments on NIH's social media. See NIH Comment Guidelines, (last updated March 13, 2019), https://perma.cc/YN6J-8GFH. Those publicly available guidelines "encourage" the public to "share [their] thoughts and ideas" and state that "NIH blogs are not intended to serve as public forums." Id. To "encourage respectful and constructive dialogue," the Guidelines prohibit "vulgar, obscene, profane, threatening, or abusive language," "discriminatory language," "endorsements of commercial products," "repetitive posts," "spam or undecipherable language," "links to external sites," and, most relevant here, "off-topic posts." Id. (capitalization modified). The Guidelines also ask that "comments be respectful and relevant to the specific topic." Id.

Facebook and Instagram accountholders—such as NIH here—have at their disposal several tools to moderate comments. Accountholders can block individual users and manually delete or hide comments. They can also turn on the platforms' default filters, which hide from public view comments that contain profanity or other offensive words. On Facebook, the hidden comment is then viewable only by the user and their friends. On Instagram, users may view hidden comments by scrolling to the bottom of a comment thread and clicking "view hidden comments." NIH enabled the platform's default filters here.

Accountholders may also use custom keyword filters—the primary focus of this case. An accountholder can specify a custom list of keywords to be filtered out; any past or future comment containing those keywords is then automatically hidden. On Facebook, a comment hidden by custom keyword filters is automatically hidden from public view but remains visible to the user who posted the comment and their friends. On Instagram, a comment hidden by custom keyword filters is visible only to the user and the account holder if they choose to "view hidden comments." Typically, the user who posted the filtered-out comment is not notified. NIH created custom keyword filters to implement its Commenting Guidelines.

As of the date of the complaint, September 9, 2021, NIH's Facebook keyword filters consisted of the following words: "PETA, PETALatino, animal(s), animales, animalitos, cats, gatos, chimpanzee(s), chimp(s), hamster(s), marmoset(s), monkey(s), monkies, mouse, mice, primate(s), sex experiments, cruel, cruelty, revolting, torment(ing), torture(s), torturing, #believemothers, marijuana, cannabis, Hitler, nazi," as well as the names of two researchers who have conducted experiments on monkeys ("Suomi," "Harlow"), various URL parts (e.g., www., gmail, .org, .com), and expletives. Jt. Stip. ¶ 58 (capitalization modified); see Compl., Attachment 1. On Instagram, the following words were filtered: "PETA, #stopanimaltesting, #stoptesting, #stoptestingonanimals, animal(s), chimpanzee(s), chimps, monkey(s), experiment, hurt(ing), kill, stop, test(ing), testing facility, tortur(ing), pedos, rapist," as well as four emojis and an expletive. Jt. Stip. ¶ 58 (capitalization modified); see Compl., Attachment 2. NIH said it added these terms "to target comments frequently made on NIH's social media pages that the NIH believes would violate its comment moderation guidelines." Jt. Stip. ¶ 58. While NIH maintains it has the "authority to manually review any and all comments before and after they are posted," "in practice" NIH implemented its guidelines only through use of keyword filters. Id. ¶ 61.

B

On September 9, 2021, PETA, Krasno, and Hartkopf sued NIH in district court, alleging that NIH's use of keyword filters violated their First Amendment rights. PETA is a nonprofit organization dedicated to advocating for animal rights, and the individual appellants are animal rights advocates. Appellants use social media to raise awareness for their causes, which include opposing animal testing and animal mistreatment in laboratories. In particular, appellants frequently comment on NIH's social media pages to protest NIH's funding of animal testing. Many of their comments have been automatically filtered out by NIH's keyword filters. For example, Krasno attempted to comment the following on an NIH Instagram post depicting a cell infected with COVID-19: "It's time we had an open conversation about all the animal testing you fund. What a waste of life and resources." Jt. Stip. ¶ 73. That comment was automatically hidden from public view because "animal" and "testing" were on NIH's keyword filters list. Id.

In December 2021, NIH removed "PETA" and "PETALatino" from its keyword filters on both platforms and removed "#stopanimaltesting" and "#stoptesting" from its Instagram filters. Jt. Stip. ¶ 60. The parties cross-moved for summary judgment. The district court granted summary judgment to the government, holding that NIH's keyword filters were viewpoint-neutral and reasonable restrictions in a limited public forum. See PETA v. Tabak, 2023 WL 2809867, at *14 (D.D.C. Mar. 31, 2023). This appeal followed.¹

II

We review the district court's grant of summary judgment in favor of the government de novo, Bauer v. Fed. Deposit Ins., 38 F.4th 1114, 1121 (D.C. Cir. 2022), and have an "obligation to 'make an independent examination of the whole record,' " Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

A

The speech restrictions challenged here apply only to NIH's comment threads, which the parties agree are government-controlled property. See Appellants' Brief 33; Appellee's Brief 26. On government-controlled property, the standard by which speech restrictions are evaluated "depends on the nature of the relevant forum." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

Traditional public forums—like parks and sidewalks—are "places which by long tradition . . . have been devoted to assembly and debate." Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). In such forums, the government may "impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited." Minn. Voters All. v. Mansky, 585 U.S. 1, 11, 138 S.Ct. 1876, 201 L.Ed.2d 201 (2018). That same strict standard applies to a designated public forum, which is a space that has " 'not traditionally been regarded as a public forum' but...