Fifth Circuit Upholds Free Speech Rights of Animal Activist on NIH Social Media Platform

By Rebecca Critser, Zachary Liebowitz, and Shannon Dixon | October 31st, 2024

Introduction

On July 30th, 2024, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the plaintiff in their nearly three-year lawsuit against the National Institutes of Health (NIH). The lawsuit alleged NIH restricted and removed comments related to the agency’s animal testing practices. The NIH claimed it had filtered comments it labeled as “off-topic” to avoid repetitive or irrelevant comments. The district court sided with the NIH, but plaintiff appealed the decision in 2023. On appeal, the court found that the NIH’s criteria for filtering comments violated plaintiff’s First Amendment right to free speech.

DC Circuit Decision (Krasno v. NIH)

The DC Circuit Court held that the NIH violated a user’s First Amendment Free Speech right when they used key words — including “animal testing” — to prevent the user’s comments from being seen by others using the government’s online discussion forum. Moderators of online forms are necessary to ensure sites are accessible to a variety of perspectives and to steer clear of online bullying. Yet, moderators necessarily sensor certain speech, which can run afoul of the First Amendment of the US Constitution. This recent DC Circuit decision highlights the complexity of balancing free speech with content moderation in the context of government sponsored animal testing.

PETA and ALDF represented plaintiffs Madeline Krasno and PETA, an animal advocate and former lab technician. Krasno had engaged with online NIH platforms through Instagram and Facebook. One of her posts stated, “The NIH maintained User Guidelines for posting on their pages within these platforms and enforced those guidelines primarily through the use of keyword filters.” PETA v. NIH, No. 23-5510 (July 30, 2024, DC Circuit). These guidelines instructed users to avoid off topic comments. In relevant part, the NIH set its Facebook to filter posts containing: “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), [and] torturing.” Krasno v. NIH, DC App. (July 2024) at 4. (“PETA” and “PETALatino” have subsequently been removed from the filter.)

Similarly the relevant words filtered by NIH on Instagram include:“PETA, #stopanimaltesting,  #stoptesting,  #stoptestingonanimals, animal(s),  chimpanzee(s),  chimps,  monkey(s),  experiment, hurt(ing), kill, stop, test(ing), testing facility, [and] tortur(ing).” Id. at 5.  (“#stoptestingonanimals” and “stoptesting” have subsequently been removed.)

As a result of these filters, Krasno’s post on an NIH Instagram thread about COVID, which read “It’s time we had an open conversation about all the animal testing you fund. What a waste of life and resources,” was filtered by NIH’s keywords. As a result of that automatic filtration, only Krasno and the NIH could see the post.

The lower court held that the online platforms were “limited forums” and “view-point neutral.” The circuit court agreed that the online platforms were “limited forums” but took a different approach in assessing the reasonableness of the limitations. Noting the government’s intended goal of the forms was to engage citizens and provide an opportunity for respectful dialogue, the court stated, “Although there is no requirement of narrow tailoring, the government must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.  This NIH has not done.” PETA v. NIH, at 14.  The court goes on to note, “to consider words related to animal testing categorically off-topic does not ring of common-sense.”

Case Pending in the 7th Circuit (Krasno v. Moonkin)

A similar lawsuit is playing out in the 7th Circuit. There, Krasno is represented by the Animal Legal Defense Fund (ALDF), who filed suit against the University of Wisconsin. The claims are similar to the DC Circuit case: Krasno claims the University of Wisconsin violated her First Amendment Free Speech Right when it used keyword filters to block her comments on their social media platforms about the University’s animal testing practices. The University argues that its moderation policies are designed to foster productive discussions on its social media platforms, rather than stifling dissent.

Like the DC Circuit case against NIH, the Wisconsin district court ruled in favor of the defendant on summary judgment. ALDF has filed an appeal with the 7th Circuit. Oral argument was heard in Sep 2023. A decision from the court is forthcoming; based on comments by the judges during oral argument, the court’s opinion may have been delayed pending related decisions of the US Supreme Court.

Potential Effects of Online Censorship

The suppression of comments critical of animal research raises broader concerns about the potential chilling effect on free speech, particularly in online forums where public institutions hold power. If government entities are permitted to moderate comments based on viewpoint, there is a risk that important conversations—especially around controversial issues like animal testing—will be suppressed. This could erode public confidence in government accountability and limit the ability of advocacy groups to challenge government actions and policies in the digital space.

Furthermore, it is important to note that animal research is a relevant topic of discussion for institutions like the NIH and universities that regularly engage in such research. As alternatives to animal subjects become increasingly available and as public opinion around animal research and testing continues to shift, it is important to protect speech in applicable forums even as the forums shift to an online platform.  

Conclusion

At the heart of both cases is the question of whether or to what extent government-run social media platforms can censor speech that asks fundamental questions about agency work or their approach to their missions. These cases focus on comments made about the role of animal models in research. NIH funds, and the University of Wisconsin regularly engages in, research that uses animals. When federal agencies such as NIH reach out to the public about their research, can they set strict contours on what can be said about it?  Or should they be required to make space for voices that are critical and ask probing questions about what they are doing?

For decades the public has sought to learn more about federally funded research that uses animal models.  The data available from these agencies does not answer many of the questions posed by interested citizens, and this lack of transparency is probably one reason why the public has increasingly been wary of animal research.

As noted in the DC Circuit opinion, “[t]he right to ‘praise or criticize governmental agents’ lies at the heart of the First Amendment’s protections . . . and censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discourse . . . .”

Shannon Dixon is junior at Johns Hopkins University majoring in environmental engineering. She plans to attend law school with an interest in studying environmental policy. She was fortunate enough to join Dr. Locke’s team this summer as a student policy researcher.

The views expressed do not necessarily reflect the official policy or position of Johns Hopkins University or Johns Hopkins Bloomberg School of Public Health.