Government Agencies Can’t Use Dumb Word Filters to Screen Social Media Comments–PETA v. Tabak

July 31, 2024 · by · in Content Regulation

PETA promotes its animal rights agenda by making lots of online comments, an advocacy technique that may cross over from being aggressive to being annoying. In this case, they were such a nuisance on NIH’s Facebook and Instagram posts that NIH created dumb word filters trying to screen their comments out–filtering words like “animal,” “testing,” and “cruel,” which guaranteed countless false positives. PETA challenged the filters as unconstitutional censorship.

The D.C. Circuit reaches three important conclusions:

1) the NIH Facebook and Instagram accounts were limited public forums, not traditional or designated public forums.

2) as limited public forums, the NIH could block off-topic posts.

3) NIH’s keyword filters went beyond blocking off-topic posts and therefore were unconstitutional censorship.

Limited Public Forum

The court says the parties stipulated that the comment threads were “government-controlled property.” That’s an interesting conclusion given that Facebook and Instagram control all of the relevant chattel and the government has the right to use its accounts only with their permission, but OK.

The court says “NIH sought to limit the forum ‘solely to the discussion of certain subjects’ and that it is therefore a limited public forum.” The court cites some NIH statements in its comment guidelines about intending to control the conversation, but these statements are self-serving. It also nominally enforced its limits with dumb keyword filters. The court credits all of this evidence anyway. Essentially, it’s enough for the government to put up a virtual sign saying “this is not a public forum” and try a little content moderation and the sign becomes true by definition?

Management of Off-Topic Posts

Having established that the NIH Facebook and Instagram accounts are limited public forums, the legal standard is that speech restrictions may be “based on subject matter” if the restrictions are “reasonable in light of the purpose served by the forum” and “viewpoint neutral.” Thus,

NIH’s off-topic restriction furthers the “permissible objective[s],” of creating comment threads dedicated to each post’s topic and allowing the public to engage on that topic, instead of being distracted or overwhelmed by off-topic comments

But many of NIH’s posts relate to animal testing, which makes PETA’s comments on-topic. “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.” (Yes, our government used our tax dollars to advance a position that “defies common sense.” 🤷‍♂️)

However, NIH needed a more detailed policy than just saying “no off-topic posts.” “Simply announcing a rule against off-topic comments does not provide objective, workable standards to guide either NIH’s social media moderators or the public as to how to divine what may come in from what must stay out.” (Cleaned up). The overreaching nature of NIH’s banned keywords reinforced the court’s concern.

Dumb Keyword Filters

Here are NIH’s blocked keywords:

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. 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.

Reading this list, to me these filtered words are obvious speaker-based and viewpoint-based censorship of PETA and its message. This doesn’t seem like a hard call.

The court says the blocked keyword list is “unreasonable because it is inflexible and unresponsive to context.” The court also lambasts the NIH’s viewpoint bias:

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.”…censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discourse over NIH’s work

The court doesn’t say that all keyword blocks will be unconstitutional, but it seems likely that other attempts at doing dumb keyword blocks would have the same problems. Maybe there’s a list of “seven dirty words” that government actors could say are never appropriate on the forum, but the risk of false positives even for awful words is so great that I wouldn’t recommend it. The court sidesteps the obvious lurking issue of whether NIH can defer to Facebook and Instagram’s default keyword filters and other content moderation efforts that may reach constitutionally protected speech, or if those privately-run blocklists will be themselves subject to the same legal review when they are applied to government actors’ accounts.

Implications

So, who won this case? PETA got the relief it sought, so they can claim the win. However… if government agencies can’t rely on dumb keyword filters (which they never should have tried), odds are they need to put a human on the moderation team. But this is costly and slow–as the court says, “the record shows that…NIH lacked ‘the resources to manually’ review each of the innumerable posted comments.”

In light of this ruling and the prohibitive costs of manual moderation, the government’s logical countermove is to turn off interactivity and use their social media accounts purely as one-way broadcasting tools. (Non-interactivity was an obvious implication of the Lindke ruling too). In other words, PETA will likely prompt government agencies to entirely shut down the conversations for PETA–and everyone else too. A victory for free speech!? #ThanksPETA

Case Citations: People for the Ethical Treatment of Animals v. Tabak, 2024 WL 3573661 (D.C. Cir. July 30, 2024)

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