There is an interesting lawsuit filed in Washington against the National Institutes of Health (NIH) and the Department of Health and Human Services (HHS) over censorship. The lawsuit was brought by the Knight First Amendment Institute at Columbia University, People for the Ethical Treatment of Animals (PETA), and the Animal Legal Defense Fund after the government blocked comments on opposing animal testing on the agencies’ social media sites. The lawsuit has ample support in the case law. Notably, it also comes at a time when the Administration and many Democratic leaders, like President Joe Biden, have called on private companies to engage in massive censorship programs on social media. The lawsuit was filed in People for the Ethical Treatment of Animals v. Collins, No. 1:21-cv-02380 (D.D.C.).
The Complaint alleges that NIH and HHS are blocking comments containing keywords associated with viewpoints critical of animal testing from the agencies’ social media pages:
The NIH, through individuals acting as administrator(s) and/or account holder(s), uses keyword blocking to target and hide comments that criticize the government’s animal testing practices, including Plaintiffs’ comments. As explained in detail below, see ¶¶ 60–79, Plaintiffs discovered the blocked keywords through their own experiences attempting to communicate on the NIH’s social media pages and through a FOIA request submitted by Mr. Hartkopf. The following keywords are blocked from the NIH’s Instagram and/or Facebook accounts:
Animal(s), animalitos, animales
Cats, gatos [i.e., Spanish for “cats”]
Test(ing), testing facility
The complaint is well-supported. Notably, in Knight First Amendment Institute v. Trump, 928 F.3d 226 (2d Cir. 2019), the Second Circuit held that President Trump could not block users from his @realDonaldTrump account: “We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”
This is an easier case. There is no question that this is a public website as opposed to the contested status of the @realDonaldTrump account. The Supreme Court held in Manhattan Community Access Corp. et al. v. Halleck et al., 587 U.S. ___, 139 S.Ct. 1921, 204 L.Ed.2d 405 (2019) “[w]hen the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint ….” See also Pleasant 237*237 Grove, 555 U.S. at 469-70, 129 S.Ct. 1125 (viewpoint discrimination prohibited in traditional, designated, and limited public forums); Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (viewpoint discrimination prohibited in nonpublic forums).
What is interesting is that this is a lawsuit that is likely to garner support on the left from some of the same people who are calling for censorship of “disinformation” and “misinformation.” The anti-free speech movement is abandoning bright line rules in favor of judgments on what is true and what is false or misleading.
In the last few years, we have seen an increasing call for private censorship from Democratic politicians and liberal commentators. Faculty and editors are now actively supporting modern versions of book-burning with blacklists and bans for those with opposing political views. Columbia Journalism School Dean Steve Coll has denounced the “weaponization” of free speech, which appears to be the use of free speech by those on the right. So the dean of one of the premier journalism schools now supports censorship.Free speech advocates are facing a generational shift that is now being reflected in our law schools, where free speech principles were once a touchstone of the rule of law. As millions of students are taught that free speech is a threat and that “China is right” about censorship, these figures are shaping a new society in their own intolerant images.
The most chilling aspect of this story is how many on left applaud such censorship. A new poll shows roughly half of the public supporting not just corporate censorship but government censorship of anything deemed “misinformation.”
Here is the complaint: People for the Ethical Treatment of Animals v. Collins, No. 1:21-cv-02380 (D.D.C.).