Social media is, depending on one’s perspective, a powerful messaging tool or a distraction full of unhelpful comments at best, and oftentimes outright nasty, vitriolic comments. Social media content designed to inform the public about the workings of their government can very easily be taken over by those more interested in pursuing their negative personal agenda or personal feelings towards the government or government officials.
Governments implement standards of conduct and other rules to restrict comments placed on social media pages. The extent to which comments may be removed or otherwise restricted continues to be fodder for litigation. Governments, however, find that they must be engaged on social media in some fashion and therefore, must continue to monitor the courts’ handling of these cases to keep track of where the balance exists between the orderly operation of government and the rights guaranteed by the free speech clauses of the federal and state constitutions.
One such case recently decided by the U.S. Circuit Court for the District of Columbia is instructive as to not only where this balance lies, but also in reminding government officials that the authority to regulate speech in a government created forum is one thing, but the manner in which that oversight is carried out is equally important. In People for the Ethical Treatment of Animals, et. al (PETA) v. the National Institutes of Health (NIH), 109 F.4th 627 (D.C. Cir., July 2024) the court sided with the federal government agency (NIH) in its right to regulate the content of public comments on its social media pages but found that the methodology used to enforce its rules was unconstitutional.
Description of Public Forum Types
In PETA, the court reviewed the NIH’s screening process for its social media pages, particularly the agency’s “off-topic” policy. That policy served to allow exclusion of comments that were off-topic from the original post.
The Court began by reviewing and describing the various types of forums that a government may create and regulate. Specifically, the following types of discussion forums were identified:
- Open forum – such as streets, sidewalks, public parks, etc. that are traditionally open for public discussion. Governments may impose time, place, and manner restrictions, but not viewpoint-based restrictions and generally not content-based restrictions without illustrating a compelling interest in doing so.
- Nonpublic forum – on the other end of the spectrum from open forum is the nonpublic forum, which is closed to public discussion by design and/or by the nature of the forum. This includes places not appropriate for public discourse, such as a public museum, or public library; or a public entity’s board meeting, where for the most part the public is present to view, not to comment on the agenda items.
- Limited public forum – a limited public forum is created by government for the discussion of limited subjects or for some specified reason. These types of forums allow for citizen comments, but may impose reasonable, viewpoint neutral limitations. Those limitations must also be enforced in a way that does not infringe on one’s rights.
The government entity that creates the forum determines the type of forum that it creates. The type of forum is dictated by the sponsoring entity’s intent as illustrated by guidelines it publishes that describes prohibited or permitted content, defines the platform as a limited forum, and otherwise retains control over the creation of content and determination of subject matter.
In the PETA case, the facts established that the NIH social media pages were established as limited public forums. NIH publicized its social media pages as limited public forums regulated by guidelines that articulate the purpose of the forum, and the limitation on public commentary, including the “off-topic” prohibition. The Court found that the NIH had authority to restrict the content of the comments and to limit their scope, provided that they did so without regard to a particular viewpoint.
Important Discussion Regarding Enforcement
Having determined that, based on NIH’s conduct, it intentionally created a limited public forum, the Court shifted its focus to NIH’s strategy for enforcing its rules.
PETA argued that one could find all manner of comments that did not, strictly speaking, meet the NIH guidelines, but had not been removed. This inconsistent treatment, PETA argued, evidenced NIH’s true intent, which was to shut down the commentary of a group whose message NIH did not want to hear.
The Court noted that while some comments that violated the NIH guidelines could be found, NIH had nonetheless taken steps to enforce its guidelines. To preserve the limited public forum designation, the government entity need only be taking measures to enforce the guidelines, not illustrate uniform success in doing so. Put another way, the Court stated, “examination of the government’s actual practice in enforcing its policy is not a gotcha game; rather it is a tool to smoke out the government’s ‘intent’ with regard to the forum’s response”. Id. at 635.
NIH used a keyword filtering system to identify comments for removal. No person viewed and made independent determinations to keep or remove any comments. Accordingly, comments that violated the NIH guidelines had not been approved by anyone and remained visible only because the established filters did not capture them. Inconsistency due to a failure to properly implement the filtering software is distinct from intentional action to approve some posts and reject others so as to illustrate the “true” intent.
The Court found that NIH had taken sufficient measures to preserve its creation of a limited public forum.
Court Finds that NIH Method of Enforcing Forum Rules Violates the Constitution
Having established the NIH’s authority to censor its limited public forum, the Court turned its attention to NIH’s “off-topic” description in its rules. There the Court noted that the guidelines do not define “off-topic” and that allowed for uncertainty as to what is or is not off-topic. For example, PETA frequently had posts removed that included prohibited phrases, such as “animal cruelty” or “#stopanimaltesting”. These were removed even when attached to an NIH post that discussed animal testing or highlighted a research project that involved animal testing.
The Court therefore found that while NIH had authority to regulate content on its social media pages as limited public forums, it’s “off-topic” description was not sufficiently clear, and more importantly, permitted itself to be applied in a manner that appeared to limit comments based on a particular viewpoint. PETA criticism of animal testing on a post about research projects involving animal testing appears not to be “off-topic” but was nonetheless excluded using search terms that identify its advocacy position.
The Court therefore found that NIH had authority to limit the content of comments to those on-topic, but that its failure to adequately and narrowly define what constitutes “off-topic” failed to adequately put the public on notice and failed to provide clear guidelines that can be evaluated for consistency with the U.S. Constitution in a predictable manner.
Lessons for Local Public Officials
Social media can provide great value as a forum for communicating with and informing the community. However, anyone who has spent any amount of time on any social media site is familiar with the negative side of that platform.
The PETA decision, and others like it, reminds us to be very deliberate about how any communication forum that allows for community interaction is structured. To control the forum’s tone and value requires a set of clearly articulated guidelines. Anything that will be restricted based on content must be accompanied by clear rules that put individuals on notice of what will not be permitted. Finally, and most importantly, guidelines for evaluating public comments must not lend itself to implicit viewpoint discrimination. Identifying phrases and words to exclude content is problematic if those chosen words and phrases censor a particular point of view, even where that point of view is on-topic.
