Judge Brad Garcia, nominated by President Biden to the DC Circuit Court of Appeals, wrote a unanimous opinion that reversed a lower court and ruled that a policy by the National Institute of Health (NIH) restricting public comments on its website was “not reasonable in light of the purpose of the forum” and therefore violates the First Amendment. The July 2024 decision was in People For the Ethical Treatment of Animals (PETA) v Tabak.
What is the background of this case?
NIH serves as the primary federal agency that performs and supports biomedical and behavioral research. It posts news updates and other information on that work on Facebook and Instagram, on which users can post comments. NIH maintains various restrictions on such posts, such as prohibiting “abusive language” and “off-topic posts.” NIH has made clear that the post threads are not an open public forum, but instead are limited public forums subject to some restrictions.
One way that NIH limits the comments on its posts is through keyword filters, which block the posting of comments containing specified keywords. The keyword filters include words intended to block posts criticizing animal testing, such as “animal(s)” and “test(ing)." PETA and several others have sought to post comments criticizing animal testing, and filed a federal lawsuit contending that NIH’s policy violates the First Amendment. After discovery, a federal district court granted summary judgment to NIH, holding that the keyword filters were “reasonable restrictions” in a limited public forum. PETA appealed to the DC Circuit.
How did Judge Garcia and the DC Circuit Rule and Why is it Important?
Judge Garcia wrote a unanimous decision that reversed the ruling below and instead granted summary judgment to PETA because NIH’s policy violated the First Amendment. Judge Garcia explained that under established First Amendment law, government can create limited public forums like the NIH comment threads that are limited to designated subjects and include speech restrictions that are “reasonable in light of the purpose served by the forum.”
Based on a review of the record and the relevant case law, however Judge Garcia found that NIH’s off-topic restriction as implemented by its keyword filtering did not meet this standard. A “substantial portion” of the NIH posts in the record, he wrote, depict animals or discuss animal research. It thus “defies common sense”, he concluded, to say that comments related to animal testing are “categorically off-topic.” As currently written and implemented, the court determined, the NIH policy violates the First Amendment.
The decision by Judge Garcia was obviously important to PETA and others seeking to post comments on NIH’s website. It is also significant to First Amendment issues concerning limited public forums, which often arise in connection with government agencies. The ruling also provides an example of the importance of promptly confirming fair-minded judges to our federal courts.