from the that's-not-content-neutral dept
PETA is certainly not above filing some pretty ridiculous lawsuits, so I was initially skeptical when I heard that it had filed a lawsuit against the directors of the National Institutes of Health (Francis Collins) and Health & Human Services (Xavier Becerra) over Facebook keyword blocking. However, upon reading through the lawsuit, it seems pretty legit. At issue is that it appears that NIH has put in place a block list on Facebook and Instagram that blocks anyone from mentioning PETA and a surprisingly long list of words and phrases that are likely of interest to PETA.
If this sounds sorta somewhat similar to the lawsuits saying that the President can’t block people on social media, well, perhaps that’s because that lawsuit and this one both involve lawyers from the Knight First Amendment Institute at Columbia, who have specialized in getting government officials to stop abusing social media blocks to suppress speech. In this case, some PETA supporters were noticing that certain comments they were posting on the NIH Facebook and Instagram pages didn’t appear to be showing up. So they FOIA’d the blocklist that NIH was using, and discovered it was pretty extensive… and not generally what you would call “content neutral” (which would be required under the 1st Amendment):
d. Animal(s), animalitos, animales
e. Chimpanzee(s), chimp(s)
h. Cats, gatos [i.e., Spanish for ?cats?]
i. Monkey(s), monkies
j. Mouse, mice
l. Test(ing), testing facility
n. PETA, PETALatino
o. Suomi,1 Harlow2
p. Hurt, hurting
r. Torture(s), torturing
That list is pretty revealing. I mean, it’s not difficult to see how this came about. Not for nothing, but PETA folks can be a pain in the ass. Which seems to basically be by design. They like making a nuisance of themselves, and you can see how some administrator at NIH was getting sick of it and started coming up with words that would block their annoying comments. And that’s fine for normal everyday private actors. But when it’s the government, there’s a problem. Especially when that list seems so clearly targeted. For something like this to survive 1st Amendment scrutiny it needs to be “content neutral.” This is anything but.
Defendants? practice of hiding comments containing words associated with animal rights advocacy, including the name of a well-known animal rights organization, is a viewpointdiscriminatory and content-based restriction on speech that infringes Plaintiffs? First Amendment rights. It violates Plaintiffs? right to speak in a public forum and their right to read the speech of others who have used blocked keywords in comments on Defendants? social media pages.
Given the ruling in Knight v. Trump, the claims here seem pretty strong (in fact, potentially even stronger than that case). This isn’t just blocking people, it’s legit trying to bar discussions of certain topics NIH doesn’t want discussed in open spaces that it is creating, as a government entity. PETA may be annoying (and at times frivolous and ridiculous), but this lawsuit seems exactly on point.