California’s 2024 legislative session has officially adjourned, and it’s time to reflect on the wins and losses that have shaped Californians’ digital rights landscape this year.

EFF monitored nearly 100 bills in the state this session alone, addressing a broad range of issues related to privacy, free speech, and innovation. These include proposed standards for Artificial Intelligence (AI) systems used by state agencies, the intersection of AI and copyright, police surveillance practices, and various privacy concerns. While we have seen some significant victories, there are also alarming developments that raise concerns about the future of privacy protection in the state.

Celebrating Our Victories

This legislative session brought some wins for privacy advocates—most notably the defeat of four dangerous bills: A.B. 3080, A.B. 1814, S.B. 1076, and S.B. 1047. These bills posed serious threats to consumer privacy and would have undermined the progress we’ve made in previous years.

First, we commend the California Legislature for not advancing A.B. 3080, “The Parent’s Accountability and Child Protection Act” authored by Assemblymember Juan Alanis (Modesto). The bill would have created powerful incentives for “pornographic internet websites” to use age-verification mechanisms. The bill was not clear on what counts as “sexually explicit content.” Without clear guidelines, this bill will further harm the ability of all youth—particularly LGBTQ+ youth—to access legitimate content online. Different versions of bills requiring age verification have appeared in more than a dozen states. We understand Asm. Alanis' concerns, but A.B. 3080 would have required broad, privacy-invasive data collection from internet users of all ages. We are grateful that it did not make it to the finish line.

Second, EFF worked with dozens of organizations to defeat A.B. 1814, a facial recognition bill authored by Assemblymember Phil Ting (San Francisco). The bill attempted to expand the use of facial recognition software by police to “match” images from surveillance databases to possible suspects. Those images could then be used to issue arrest warrants or search warrants. The bill merely said that these matches can't be the sole reason for a warrant to be issued—a standard that has already failed to stop false arrests in other states.  Police departments and facial recognition companies alike both currently maintain that police cannot justify an arrest using only algorithmic matches–so what would this bill really change? The bill only gave the appearance of doing something to address face recognition technology's harms, while allowing the practice to continue. California should not give law enforcement the green light to mine databases, particularly those where people contributed information without knowledge that it would be accessed by law enforcement. You can read more about this bill here, and we are glad to see the California legislature reject this dangerous bill.

EFF also worked to oppose and defeat S.B. 1076, by Senator Scott Wilk (Lancaster). This bill would have weakened the California Delete Act (S.B. 362). Enacted last year, the Delete Act provides consumers with an easy “one-click” button to request the removal of their personal information held by data brokers registered in California. By January 1, 2026. S.B. 1076 would have opened loopholes for data brokers to duck compliance. This would have hurt consumer rights and undone oversight on an opaque ecosystem of entities that collect then sell personal information they’ve amassed on individuals. S.B. 1076 would have likely created significant confusion with the development, implementation, and long-term usability of the delete mechanism established in the California Delete Act, particularly as the California Privacy Protection Agency works on regulations for it. 

Lastly, EFF opposed S.B. 1047, the “Safe and Secure Innovation for Frontier Artificial Intelligence Models Act” authored by Senator Scott Wiener (San Francisco). This bill aimed to regulate AI models that might have "catastrophic" effects, such as attacks on critical infrastructure. Ultimately, we believe focusing on speculative, long-term, catastrophic outcomes from AI (like machines going rogue and taking over the world) pulls attention away from AI-enabled harms that are directly before us. EFF supported parts of the bill, like the creation of a public cloud-computing cluster (CalCompute). However, we also had concerns from the beginning that the bill set an abstract and confusing set of regulations for those developing AI systems and was built on a shaky self-certification mechanism. Those concerns remained about the final version of the bill, as it passed the legislature.

Governor Newsom vetoed S.B. 1047; we encourage lawmakers concerned about the threats unchecked AI may pose to instead consider regulation that focuses on real-world harms.  

Of course, this session wasn’t all sunshine and rainbows, and we had some big setbacks. Here are a few:

The Lost Promise of A.B. 3048

Throughout this session, EFF and our partners supported A.B. 3048, common-sense legislation that would have required browsers to let consumers exercise their protections under the California Consumer Privacy Act (CCPA). California is currently one of approximately a dozen states requiring businesses to honor consumer privacy requests made through opt–out preference signals in their browsers and devices. Yet large companies have often made it difficult for consumers to exercise those rights on their own. The bill would have properly balanced providing consumers with ways to exercise their privacy rights without creating burdensome requirements for developers or hindering innovation.

Unfortunately, Governor Newsom chose to veto A.B. 3048. His veto letter cited the lack of support from mobile operators, arguing that because “No major mobile OS incorporates an option for an opt-out signal,” it is “best if design questions are first addressed by developers, rather than by regulators.” EFF believes technologists should be involved in the regulatory process and hopes to assist in that process. But Governor Newsom is wrong: we cannot wait for industry players to voluntarily support regulations that protect consumers. Proactive measures are essential to safeguard privacy rights.

This bill would have moved California in the right direction, making California the first state to require browsers to offer consumers the ability to exercise their rights. 

Wrong Solutions to Real Problems

A big theme we saw this legislative session were proposals that claimed to address real problems but would have been ineffective or failed to respect privacy. These included bills intended to address young people’s safety online and deepfakes in elections.

While we defeated many misguided bills that were introduced to address young people’s access to the internet, S.B. 976, authored by Senator Nancy Skinner (Oakland), received Governor Newsom’s signature and takes effect on January 1, 2027. This proposal aims to regulate the "addictive" features of social media companies, but instead compromises the privacy of consumers in the state. The bill is also likely preempted by federal law and raises considerable First Amendment and privacy concerns. S.B. 976 is unlikely to protect children online, and will instead harm all online speakers by burdening free speech and diminishing online privacy by incentivizing companies to collect more personal information.

It is no secret that deepfakes can be incredibly convincing, and that can have scary consequences, especially during an election year. Two bills that attempted to address this issue are A.B. 2655 and A.B. 2839. Authored by Assemblymember Marc Berman (Palo Alto), A.B. 2655 requires online platforms to develop and implement procedures to block and take down, as well as separately label, digitally manipulated content about candidates and other elections-related subjects that creates a false portrayal about those subjects. We believe A.B. 2655 likely violates the First Amendment and will lead to over-censorship of online speech. The bill is also preempted by Section 230, a federal law that provides partial immunity to online intermediaries for causes of action based on the user-generated content published on their platforms. 

Similarly, A.B. 2839, authored by Assemblymember Gail Pellerin (Santa Cruz), not only bans the distribution of materially deceptive or altered election-related content, but also burdens mere distributors (internet websites, newspapers, etc.) who are unconnected to the creation of the content—regardless of whether they know of the prohibited manipulation. By extending beyond the direct publishers and toward republishers, A.B. 2839 burdens and holds liable republishers of content in a manner that has been found unconstitutional.

There are ways to address the harms of deepfakes without stifling innovation and free speech. We recognize the complex issues raised by potentially harmful, artificially generated election content. But A.B. 2655 and A.B. 2839, as written and passed, likely violate the First Amendment and run afoul of federal law. In fact, less than a month after they were signed, a federal judge put A.B. 2839’s enforcement on pause (via a preliminary injunction) on First Amendment grounds.

Privacy Risks in State Databases

We also saw a troubling trend in the legislature this year that we will be making a priority as we look to 2025. Several bills emerged this session that, in different ways, threatened to weaken privacy protections within state databases. Specifically,  A.B. 518 and A.B. 2723, which received Governor Newsom’s signature, are a step backward for data privacy.

A.B. 518 authorizes numerous agencies in California to share, without restriction or consent, personal information with the state Department of Social Services (DSS), exempting this sharing from all state privacy laws. This includes county-level agencies, and people whose information is shared would have no way of knowing or opting out. A. B. 518 is incredibly broad, allowing the sharing of health information, immigration status, education records, employment records, tax records, utility information, children’s information, and even sealed juvenile records—with no requirement that DSS keep this personal information confidential, and no restrictions on what DSS can do with the information.

On the other hand, A.B. 2723 assigns a governing board to the new “Cradle to Career (CTC)” longitudinal education database intended to synthesize student information collected from across the state to enable comprehensive research and analysis. Parents and children provide this information to their schools, but this project means that their information will be used in ways they never expected or consented to. Even worse, as written, this project would be exempt from the following privacy safeguards of the Information Practices Act of 1977 (IPA), which, with respect to state agencies, would otherwise guarantee California parents and students:

1.     the right for subjects whose information is kept in the data system to receive notice their data is in the system;
2.     the right to consent or, more meaningfully, to withhold consent;
3.     and the right to request correction of erroneous information.

By signing A.B. 2723, Gov. Newsom stripped California parents and students of the rights to even know that this is happening, or agree to this data processing in the first place. 

Moreover, while both of these bills allowed state agencies to trample on Californians’ IPA rights, those IPA rights do not even apply to the county-level agencies affected by A.B. 518 or the local public schools and school districts affected by A.B. 2723—pointing to the need for more guardrails around unfettered data sharing on the local level.

A Call for Comprehensive Local Protections

A.B. 2723 and A.B. 518 reveal a crucial missing piece in Californians' privacy rights: that the privacy rights guaranteed to individuals through California's IPA do not protect them from the ways local agencies collect, share, and process data. The absence of robust privacy protections at the local government level is an ongoing issue that must be addressed.

Now is the time to push for stronger privacy protections, hold our lawmakers accountable, and ensure that California remains a leader in the fight for digital privacy. As always, we want to acknowledge how much your support has helped our advocacy in California this year. Your voices are invaluable, and they truly make a difference.

Let’s not settle for half-measures or weak solutions. Our privacy is worth the fight.

Update (10/8/2024): Brazil lifted a ban on the X Corp. social media platform today after the country's Supreme Court said the company had complied with all of its orders. Regulators have 24 hours to reinstate the platform, though it could take longer for it to come back online.

The feud between X Corp. and Brazil’s Supreme Court continues to drag on: After a month-long standoff, X Corp. folded and complied with court orders to suspend several accounts, name a legal representative in Brazil, and pay 28.6 million reais ($5.24 million) in fines. That hasn’t cleared the matter up, though.

The Court says X paid the wrong bank, which X denies. Justice Alexandre de Moraes has asked that the funds be redirected to the correct bank and for Brazil’s prosecutor general to weigh in on X’s requests to be reinstated in Brazil.

So the drama continues, as does the collateral damage to millions of Brazilian users who rely on X Corp. to share information and expression. While we watch it unfold, it’s not too early to draw some important lessons for the future.

Let’s break it down.

How We Got Here

The Players

Unlike courts in many countries, the Brazilian Supreme Court has the power to conduct its own investigations in limited circumstances, and issue orders based on its findings. Justice Moraes has drawn on this power frequently in the past few years to target what he called “digital militias,” anti-democratic acts, and fake news. Many in Brazil believe that these investigations, combined with other police work, have helped rein in genuinely dangerous online activities and protect the survival of Brazil’s democratic processes, particularly in the aftermath of January 2023 riots.

At the same time, Moraes’ actions have raised concerns about judicial overreach. For instance, his work is less than transparent. And the resulting content blocking orders more often than not demand suspension of entire accounts, rather than specific posts. Other leaked orders include broad requests for subscriber information of people who used a specific hashtag.

X Corp.’s controversial CEO, Elon Musk has publicly criticized the blocking orders. And while he may be motivated by concern for online expression, it is difficult to untangle that motivation from his personal support for the far-right causes Moraes and others believe threaten democracy in Brazil.

The Standoff

In August, as part of an investigation into coordinated actions to spread disinformation and destabilize Brazilian democracy, Moraes ordered X Corp. to suspend accounts that were allegedly used to intimidate and expose law enforcement officers. Musk refused, directly contradicting his past statements that X Corp. “can’t go beyond the laws of a country”—a stance that supposedly justified complying with controversial orders to block accounts and posts in Turkey and India.

After Moraes gave X Corp. 24 hours to fulfill the order or face fines and the arrest of one of its lawyers, Musk closed down the company’s operations in Brazil altogether. Moraes then ordered Brazilian ISPs to block the platform until Musk designated a legal representative. And people who used tools such as VPNs to circumvent the block can be fined 50,000 reais (approximately $ 9,000 USD) per day.

These orders remain in place unless or until pending legal challenges succeed. Justice Moraes has also authorized Brazil’s Federal Police to monitor “extreme cases” of X Corp. use. It’s unclear what qualifies as an “extreme case,” or how far the police may take that monitoring authority. Flagged users must be notified that X Corp. has been blocked in Brazil; if they continue to use it via VPNs or other means, they are on the hook for substantial daily fines.

A Bridge Too Far

Moraes’ ISP blocking order, combined with the user fines, has been understandably controversial. International freedom of expression standards treat these kinds of orders as extreme measures, permissible only in exceptional circumstances where provided by law and in accordance with necessary and proportionate principles. Justice Moraes said the blocking was necessary given upcoming elections and the risk that X Corp. would ignore future orders and allow the spread of disinformation.

But it has also meant that millions of Brazilians cannot access a platform that, for them, is a valuable source of information. Indeed, restrictions on accessing X Corp. ended up creating hurdles to understanding and countering electoral disinformation. The Brazilian Association of Newspapers has argued the restrictions adversely impact journalism. At the same time, online electoral disinformation holds steady on other platforms (while possibly at a slower pace).

Moreover, now that X Corp. has bowed to his demands, Moraes’ concerns that the company cannot be trusted to comply with Brazilian law are harder to justify. In any event, there are far more balanced options now to deal with the remaining fines that don’t create collateral damage to millions of users.

What Comes Next: Concerns and Open Questions

There are several structural issues that have helped fuel the conflict and exacerbated its negative effects. First, the mechanisms for legal review of Moraes’ orders are unclear and/or ineffective. The Supreme Court has previously held that X Corp. itself cannot challenge suspension of user accounts, thwarting a legal avenue for platforms to defend their users’ speech—even where they may be the only entities that even know about the order before accounts are shut down.

A Brazilian political party and the Federal Council of the Brazilian Bar Association filed legal challenges to the blocking order and user fines, respectively, but it is likely that courts will find these challenges procedurally improper as well.

Back in 2016, a single Supreme Court Justice held back a wave of blocking orders targeting WhatsApp. Eight years later, a single Justice may have created a new precedent in the opposite direction—with little or no means to appeal it.

Second, this case highlights what can happen when too much power is held by just a few people or institutions. On the one hand, in Brazil as elsewhere, a handful of wealthy corporations wield enormous power over online expression. Here, that problem is exacerbated by Elon Musk’s control of Starlink, an important satellite internet provider in Brazil.

On the other hand, the Supreme Court also has tremendous power. Although the court’s actions may have played an important role in preserving Brazilian democracy in recent years, powers that are not properly subject to public oversight or meaningful challenge invite overreach.

All of which speaks to a need for better transparency (in both the public and private sectors) and real checks and balances. Independent observers note that, despite challenges, Brazil has already improved its democratic processes. Strengthening this path includes preventing judicial overreach.

As for social media platforms, the best way to stave off future threats to online expression may be to promote more alternatives, so no single powerful person, whether a judge, a billionaire, or even a president, can dramatically restrict online expression with the stroke of a pen.

The U.S. Supreme Court addressed government’s various roles with respect to speech on social media in five cases reviewed in its recently completed term. The through-line of these cases is a critically important principle that sets limits on government’s ability to control the online speech of people who use social media, as well as the social media sites themselves: internet users’ First Amendment rights to speak on social media—whether by posting or commenting—may be infringed by the government if it interferes with content moderation, but will not be infringed by the independent decisions of the platforms themselves.

As a general overview, the NetChoice cases, Moody v. NetChoice and NetChoice v. Paxton, looked at government’s role as a regulator of social media platforms. The issue was whether state laws in Texas and Florida that prevented certain online services from moderating content were constitutional in most of their possible applications. The Supreme Court did not rule on that question and instead sent the cases back to the lower courts to reexamine NetChoice’s claim that the statutes had few possible constitutional applications.

The court did, importantly and correctly, explain that at least Facebook’s Newsfeed and YouTube’s Homepage were examples of platforms exercising their own First Amendment rights on how to display and organize content, and the laws could not be constitutionally applied to Newsfeed and Homepage and similar sites, a preliminary step in determining whether the laws were facially unconstitutional.

Lindke v. Freed and Garnier v. O’Connor-Ratcliffe looked at the government’s role as a social media user who has an account and wants to use its full features, including blocking other users and deleting comments. The Supreme Court instructed the lower courts to first look to whether a government official has the authority to speak on behalf of the government, before looking at whether the official used their social media page for governmental purposes, conduct that would trigger First Amendment protections for the commenters.

Murthy v. Missouri, the jawboning case, looked at the government’s mixed role as a regulator and user, in which the government may be seeking to coerce platforms to engage in unconstitutional censorship or may also be a user simply flagging objectionable posts as any user might. The Supreme Court found that none of the plaintiffs had standing to bring the claims because they could not show that their harms were traceable to any action by the federal government defendants.

We’ve analyzed each of the Supreme Court decisions, Moody v. NetChoice (decided with NetChoice v. Paxton), Murthy v. Missouri, and Lindke v. Freed (decided with Garnier v. O’Connor Ratcliffe), in depth.

But some common themes emerge when all five cases are considered together.

• Internet users have a First Amendment right to speak on social media—whether by posting or commenting—and that right may be infringed when the government seeks to  interfere with content moderation, but it will not be infringed  by the independent decisions of the platforms themselves. This principle, which EFF has been advocating for many years, is evident in each of the rulings. In Lindke, the Supreme Court recognized that government officials, if vested with and exercising official authority, could violate the First Amendment by deleting a user’s comments or blocking them from commenting altogether. In Murthy, the Supreme Court found that users could not sue the government for violating their First Amendment rights unless they could show that government coercion lead to their content being taken down or obscured, rather than the social media platform’s own editorial decision. And in the NetChoice cases, the Supreme Court explained that social media platforms typically exercise their own protected First Amendment rights when they edit and curate which posts they show to their users, and the government may violate the First Amendment when it requires them to publish or amplify posts.
  
  
• Underlying these rulings is the Supreme Court’s long-awaited recognition that social media platforms routinely moderate users’ speech: they decide which posts each user sees and when and how they see it, they decide to amplify and recommend some posts and obscure others, and are often guided in this process by their own community standards or similar editorial policies. This is seen in the Supreme Court’s emphasis in Murthy that jawboning is not actionable if the content moderation was the independent decision of the platform rather than coerced by the government. And a similar recognition of independent decision-making underlies the Supreme Court’s First Amendment analysis in the NetChoice cases. The Supreme Court has now thankfully moved beyond the idea that content moderation is largely passive and indifferent, a concern that had been raised after the Supreme Court used that language to describe the process in last term’s case, Twitter v. Taamneh.
  
  
• This term’s cases also confirm that traditional First Amendment rules apply to social media. In Lindke, the Supreme Court recognized that when government controls the comments components of a social media page, it has the same First Amendment obligations to those who wish to speak in those spaces as it does in offline spaces it controls, such as parks, public auditoriums, or city council meetings. In the NetChoice cases, the Supreme Court found that platforms that edit and curate user speech according to their editorial standards have the same First Amendment rights as others who express themselves by selecting the speech of others, including art galleries, booksellers, newsstands, parade organizers, and editorial page editors.
  

Plenty of legal issues around social media remain to be decided. But the 2023-24 Supreme Court term has set out important speech-protective rules that will serve as the foundation for many future rulings. 

In a big win for free speech online, the U.S. Court of Appeals for the D.C. Circuit ruled that a federal agency violated the First Amendment when it blocked animal rights activists from commenting on the agency’s social media pages. We filed an amicus brief in the case, joined by the Foundation for Individual Rights and Expression (FIRE).

People for the Ethical Treatment of Animals (PETA) sued the National Institutes of Health (NIH) in 2021, arguing that the agency unconstitutionally blocked their comments opposing animal testing in scientific research on the agency’s Facebook and Instagram pages. (NIH provides funding for research that involves testing on animals.)

NIH argued it was simply implementing reasonable content guidelines that included a prohibition against public comments that are “off topic” to the agency’s social media posts. Yet the agency implemented the “off topic” rule by employing keyword filters that included words such as cruelty, revolting, tormenting, torture, hurt, kill, and stop to block PETA activists from posting comments that included these words.

NIH’s Social Media Pages Are Limited Public Forums

The D.C. Circuit first had to determine whether the comment sections of NIH’s social media pages are designated public forums or limited public forums. As the court explained, “comment threads of government social media pages are designated public forums when the pages are open for comment without restrictions and limited public forums when the government prospectively sets restrictions.”

The court concluded that the comment sections of NIH’s Facebook and Instagram pages are limited public forums: “because NIH attempted to remove a range of speech violating its policies … we find sufficient evidence that the government intended to limit the forum to only speech that meets its public guidelines.”

The nature of the government forum determines what First Amendment standard courts apply in evaluating the constitutionality of a speech restriction. Speech restrictions that define limited public forums must only be reasonable in light of the purposes of the forum, while speech restrictions in designated public forums must satisfy more demanding standards. In both forums, however, viewpoint discrimination is prohibited.

NIH’s Social Media Censorship Violated Animal Rights Activists’ First Amendment Rights

After holding that the comment sections of NIH’s Facebook and Instagram pages are limited public forums subject to a lower standard of reasonableness, the D.C. Circuit then nevertheless held that NIH’s “off topic” rule as implemented by keyword filters is unreasonable and thus violates the First Amendment.

The court explained that because the purpose of the forums (the comment sections of NIH’s social media pages) is directly related to speech, “reasonableness in this context is thus necessarily a more demanding test than in forums that have a primary purpose that is less compatible with expressive activity, like the football stadium.”

In rightly holding that NIH’s censorship was unreasonable, the court adopted several of the arguments we made in our amicus brief, in which we assumed that NIH’s social media pages are limited public forums but argued that the agency’s implementation of its “off topic” rule was unreasonable and thus unconstitutional.

Keyword Filters Can’t Discern Context

We argued, for example, that keyword filters are an “unreasonable form of automated content moderation because they are imprecise and preclude the necessary consideration of context and nuance.”

Similarly, the D.C. Circuit stated, “NIH’s off-topic policy, as implemented by the keywords, is further unreasonable because it is inflexible and unresponsive to context … The permanent and context-insensitive nature of NIH’s speech restriction reinforces its unreasonableness.”

Keyword Filters Are Overinclusive

We also argued, related to context, that keyword filters are unreasonable “because they are blunt tools that are overinclusive, censoring more speech than the ‘off topic’ rule was intended to block … NIH’s keyword filters assume that words related to animal testing will never be used in an on-topic comment to a particular NIH post. But this is false. Animal testing is certainly relevant to NIH’s work.”

The court acknowledged this, stating, “To say that comments related to animal testing are categorically off-topic when a significant portion of NIH’s posts are about research conducted on animals defies common sense.”

NIH’s Keyword Filters Reflect Viewpoint Discrimination

We also argued that NIH’s implementation of its “off topic” rule through keyword filters was unreasonable because those filters reflected a clear intent to censor speech critical of the government, that is, speech reflecting a viewpoint that the government did not like.

The court recognized this, stating, “NIH’s off-topic restriction is further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint that the agency should stop funding animal testing by filtering terms such as ‘torture’ and ‘cruel,’ not to mention terms previously included such as ‘PETA’ and ‘#stopanimaltesting.’”

On this point, we further argued that “courts should consider the actual vocabulary or terminology used … Certain terminology may be used by those on only one side of the debate … Those in favor of animal testing in scientific research, for example, do not typically use words like cruelty, revolting, tormenting, torture, hurt, kill, and stop.”

Additionally, we argued that “a highly regulated social media comments section that censors Plaintiffs’ comments against animal testing gives the false impression that no member of the public disagrees with the agency on this issue.”

The court acknowledged both points, stating, “The 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 over NIH’s work.”

We are pleased that the D.C. Circuit took many of our arguments to heart in upholding the First Amendment rights of social media users in this important internet free speech case.

Legal intern Danya Hajjaji was the lead author of this post.

The Sixth Circuit must carefully apply a new “state action” test from the U.S. Supreme Court to ensure that public officials who use social media to speak for the government do not have free rein to infringe critics’ First Amendment rights, EFF and the Knight First Amendment Institute at Columbia University said in an amicus brief.

The Sixth Circuit is set to re-decide Lindke v. Freed, a case that was recently remanded from the Supreme Court. The lawsuit arose after Port Huron, Michigan resident Kevin Lindke left critical comments on City Manager James Freed's Facebook page. Freed retaliated by blocking Lindke from being able to view, much less continue to leave critical comments on, Freed’s public profile. The dispute turned on the nature of Freed’s Facebook account, where updates on his government engagements were interwoven with personal posts.

Public officials who use social media as an extension of their office engage in “state action,” which refers to acting on the government’s behalf. They are bound by the First Amendment and generally cannot engage in censorship, especially viewpoint discrimination, by deleting comments or blocking citizens who criticize them. While social media platforms are private corporate entities, government officials who operate interactive online forums to engage in public discussions and share information are bound by the First Amendment.

The Sixth Circuit initially ruled in Freed’s favor, holding that no state action exists due to the prevalence of personal posts on his Facebook page and the lack of government resources, such as staff members or taxpayer dollars, used to operate it.  

The case then went to the U.S. Supreme Court, where EFF and the Knight Institute filed a brief urging the Court to establish a functional test that finds state action when a government official uses a social media account in furtherance of their public duties, even if the account is also sometimes used for personal purposes.

The U.S. Supreme Court crafted a new two-pronged state action test: a government official’s social media activity is state action if 1) the official “possessed actual authority to speak” on the government’s behalf and 2) “purported to exercise that authority” when speaking on social media. As we wrote when the decision came out, this state action test does not go far enough in protecting internet users who intereact with public officials online. Nevertheless, the Court has finally provided further guidance on this issue as a result.

Now that the case is back in the Sixth Circuit, EFF and the Knight Institute filed a second brief endorsing a broad construction of the Supreme Court’s state action test.

The brief argues that the test’s “authority” prong requires no more than a showing, either through written law or unwritten custom, that the official had the authority to speak on behalf of the government generally, irrespective of the medium of communication—whether an in-person press conference or social media. It need not be the authority to post on social media in particular.

For high-ranking elected officials (such as presidents, governors, mayors, and legislators) courts should not have a problem finding that they have clear and broad authority to speak on government policies and activities. The same is true for heads of government agencies who are also generally empowered to speak on matters broadly relevant to those agencies. For lower-ranking officials, courts should consider the areas of their expertise and whether their social media posts in question were related to subjects within, as the Supreme Court said, their “bailiwick.”

The brief also argues that the test’s “exercise” prong requires courts to engage in, in the words of the Supreme Court, a “fact-specific undertaking” to determine whether the official was speaking on social media in furtherance of their government duties.

This element is easily met where the social media account is owned, created, or operated by the office or agency itself, rather than the official—for example, the Federal Trade Commission’s @FTC account on X (formerly Twitter).

But when an account is owned by the person and is sometimes used for non-governmental purposes, courts must look to the content of the posts. These include those posts from which the plaintiff’s comments were deleted, or any posts the plaintiff would have wished to see or comment on had the official not blocked them entirely. Former President Donald Trump is a salient example, having routinely used his legacy @realDonaldTrump X account, rather than the government-created and operated account @POTUS, to speak in furtherance of his official duties while president.

However, it is often not easy to differentiate between personal and official speech by looking solely at the posts themselves. For example, a social media post could be either private speech reflecting personal political passions, or it could be speech in furtherance of an official’s duties, or both. If this is the case, courts must consider additional factors when assessing posts made to a mixed-use account. These factors can be an account’s appearance, such as whether government logos were used; whether government resources such as staff or taxpayer funds were used to operate the social media account; and the presence of any clear disclaimers as to the purpose of the account.

EFF and the Knight Institute also encouraged the Sixth Circuit to consider the crucial role social media plays in facilitating public participation in the political process and accountability of government officials and institutions. If the Supreme Court’s test is construed too narrowly, public officials will further circumvent their constitutional obligations by blocking critics or removing any trace of disagreement from any social media accounts that are used to support and perform their official duties.

Social media has given rise to active democratic engagement, while government officials at every level have leveraged this to reach their communities, discuss policy issues, and make important government announcements. Excessively restricting any member of the public’s viewpoints threatens public discourse in spaces government officials have themselves opened as public political forums.

Montana’s TikTok ban violates the First Amendment, EFF and others told the Ninth Circuit Court of Appeals in a friend-of-the-court brief and urged the court to affirm a trial court’s holding from December 2023 to that effect.

Montana’s ban (which EFF and others opposed) prohibits TikTok from operating anywhere within the state and imposes financial penalties on TikTok or any mobile application store that allows users to access TikTok. The district court recognized that Montana’s law “bans TikTok outright and, in doing so, it limits constitutionally protected First Amendment speech,” and blocked Montana’s ban from going into effect. Last year, EFF—along with the ACLU, Freedom of the Press Foundation, Reason Foundation, and the Center for Democracy and Technology—filed a friend-of-the-court brief in support of TikTok and Montana TikTok users’ challenge to this law at the trial court level.

As the brief explains, Montana’s TikTok ban is a prior restraint on speech that prohibits Montana TikTok users—and TikTok itself—from posting on the platform. The law also prohibits TikTok’s ability to make decisions about curating its platform.

Prior restraints such as Montana’s ban are presumptively unconstitutional. For a court to uphold a prior restraint, the First Amendment requires it to satisfy the most exacting scrutiny. The prior restraint must be necessary to further an urgent interest of the highest magnitude, and the narrowest possible way for the government to accomplish its precise interest. Montana’s TikTok ban fails to meet this demanding standard.

Even if the ban is not a prior restraint, the brief illustrates that it would still violate the First Amendment. Montana’s law is a “total ban” on speech: it completely forecloses TikTok users’ speech with respect to the entire medium of expression that is TikTok. As a result, Montana’s ban is subject to an exacting tailoring requirement: it must target and eliminate “no more than the exact source of the ‘evil’ it seeks to remedy.” Montana’s law is undeniably overbroad and fails to satisfy this scrutiny.

This appeal is happening in the immediate aftermath of President Biden signing into law federal legislation that effectively bans TikTok in its current form, by requiring TikTok to divest of any Chinese ownership within 270 days. This federal law raises many of the same First Amendment concerns as Montana’s.

It’s important that the Ninth Circuit take this opportunity to make clear that the First Amendment requires the government to satisfy a very demanding standard before it can impose these types of extreme restrictions on Americans’ speech.

After several years of litigation across the federal appellate courts, the U.S. Supreme Court in a unanimous opinion has finally crafted a test that lower courts can use to determine whether a government official engaged in “state action” such that censoring individuals on the official’s social media page—even if also used for personal purposes—would violate the First Amendment.

The case, Lindke v. Freed, came out of the Sixth Circuit and involves a city manager, while a companion case called O'Connor-Ratcliff v. Garnier came out of the Ninth Circuit and involves public school board members.

A Two-Part Test

The First Amendment prohibits the government from censoring individuals’ speech in public forums based on the viewpoints that individuals express. In the age of social media, where people in government positions use public-facing social media for both personal, campaign, and official government purposes, it can be unclear whether the interactive parts (e.g., comments section) of a social media page operated by someone who works in government amount to a government-controlled public forum subject to the First Amendment’s prohibition on viewpoint discrimination. Another way of stating the issue is whether a government official who uses a social media account for personal purposes is engaging in state action when they also use the account to speak about government business.  

As the Supreme Court states in the Lindke opinion, “Sometimes … the line between private conduct and state action is difficult to draw,” and the question is especially difficult “in a case involving a state or local official who routinely interacts with the public.”

The Supreme Court announced a fact-intensive test to determine if a government official’s speech on social media counts as state action under the First Amendment. The test includes two required elements:

• the official “possessed actual authority to speak” on the government’s behalf, and
• the official “purported to exercise that authority when he spoke on social media.”

Although the court’s opinion isn’t as generous to internet users as we had asked for in our amicus brief, it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

This issue has been percolating in the courts since at least 2016. Perhaps most famously, the Knight First Amendment Institute at Columbia University and others sued then-president Donald Trump for blocking many of the plaintiffs on Twitter. In that case, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s holding that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. EFF has also represented PETA in two cases against Texas A&M University.

Element One: Does the official possess actual authority to speak on the government’s behalf?

There is some ambiguity as to what specific authority the Supreme Court believes the government official must have. The opinion is unclear whether the authority is simply the general authority to speak officially on behalf of the public entity, or instead the specific authority to speak officially on social media. On the latter framing, the opinion, for example, discusses the authority “to post city updates and register citizen concerns,” and the authority “to speak for the [government]” that includes “the authority to do so on social media….” The broader authority to generally speak on behalf of the government would be easier to prove for plaintiffs and should always include any authority to speak on social media.

Element One Should Be Interpreted Broadly

We will urge the lower courts to interpret the first element broadly. As we emphasized in our amicus brief, social media is so widely used by government agencies and officials at all levels that a government official’s authority generally to speak on behalf of the public entity they work for must include the right to use social media to do so. Any other result does not reflect the reality we live in.

Moreover, plaintiffs who are being censored on social media are not typically commenting on the social media pages of low-level government employees, say, the clerk at the county tax assessor’s office, whose authority to speak publicly on behalf of their agency may be questionable. Plaintiffs are instead commenting on the social media pages of people in leadership positions, who are often agency heads or in elected positions and who surely should have the general authority to speak for the government.

“At the same time,” the Supreme Court cautions, “courts must not rely on ‘excessively broad job descriptions’ to conclude that a government employee is authorized to speak” on behalf of the government. But under what circumstances would a court conclude that a government official in a leadership position does not have such authority? We hope these circumstances are few and far between for the sake of plaintiffs seeking to vindicate their First Amendment rights.

When Does the Use of a New Communications Technology Become So “Well Settled” That It May Fairly Be Considered Part of a Government Official’s Public Duties?

If, on the other hand, the lower courts interpret the first element narrowly and require plaintiffs to provide evidence that the government official who censored them had authority to speak on behalf of the agency on social media specifically, this will be more difficult to prove.

One helpful aspect of the court’s opinion is that the government official’s authority to speak (however that’s defined) need not be written explicitly in their job description. This is in contrast to what the Sixth Circuit had, essentially, held. The authority to speak on behalf of the government, instead, may be based on “persistent,” “permanent,” and “well settled” “custom or usage.”  

We remain concerned, however, that if there is a narrower requirement that the authority must be to speak on behalf of the government via a particular communications technology—in this case, social media—then at what point does the use of a new technology become so “well settled” for government officials that it is fair to conclude that it is within their public duties?

Fortunately, the case law on which the Supreme Court relies does not require an extended period of time for a government practice to be deemed a legally sufficient “custom or usage.” It would not make sense to require an ages-old custom and usage of social media when the widespread use of social media within the general populace is only a decade and a half old. Ultimately, we will urge lower courts to avoid this problem and broadly interpret element one.

Government Officials May Be Free to Censor If They Speak About Government Business Outside Their Immediate Purview

Another problematic aspect of the Supreme Court’s opinion within element one is the additional requirement that “[t]he alleged censorship must be connected to speech on a matter within [the government official’s] bailiwick.”

The court explains:

For example, imagine that [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to [his] state authority—because he had none.

But the average constituent may not make such a distinction—nor should they. They would simply see a government official talking about an issue generally within the government’s area of responsibility. Yet under this interpretation, the city manager would be within his right to delete the comments, as the constituent could not prove that the issue was within that particular government official’s purview, and they would thus fail to meet element one.

Element Two: Did the official purport to exercise government authority when speaking on social media?

Plaintiffs Are Limited in How a Social Media Account’s “Appearance and Function” Inform the State Action Analysis

In our brief, we argued for a functional test, where state action would be found if a government official were using their social media account in furtherance of their public duties, even if they also used that account for personal purposes. This was essentially the standard that the Ninth Circuit adopted, which included looking at, in the words of the Supreme Court, “whether the account’s appearance and content look official.” The Supreme Court’s two-element test is more cumbersome for plaintiffs. But the upside is that the court agrees that a social media account’s “appearance and function” is relevant, even if only with respect to element two.

Reality of Government Officials Using Both Personal and Official Accounts in Furtherance of Their Public Duties Is Ignored

Another problematic aspect of the Supreme Court’s discussion of element two is that a government official’s social media page would amount to state action if the page is the “only” place where content related to government business is located. The court provides an example: “a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page” and it wasn’t also available on the city’s official website. The court further discusses a new city ordinance that “is not available elsewhere,” except on the official’s personal social media page. By contrast, if “the mayor merely repeats or shares otherwise available information … it is far less likely that he is purporting to exercise the power of his office.”

This limitation is divorced from reality and will hamstring plaintiffs seeking to vindicate their First Amendment rights. As we showed extensively in our brief (see Section I.B.), government officials regularly use both official office accounts and “personal” accounts for the same official purposes, by posting the same content and soliciting constituent feedback—and constituents often do not understand the difference.

Constituent confusion is particularly salient when government officials continue to use “personal” campaign accounts after they enter office. The court’s conclusion that a government official “might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection” is thus highly problematic. The court is correct that government officials have their own First Amendment right to speak as private citizens online. However, their constituents should not be subject to censorship when a campaign account functions the same as a clearly official government account.

An Upside: Supreme Court Denounces the Blocking of Users Even on Mixed-Use Social Media Accounts

One very good aspect of the Supreme Court’s opinion is that if the censorship amounted to the blocking of a plaintiff from engaging with the government official’s social media page as a whole, then the plaintiff must merely show that the government official “had engaged in state action with respect to any post on which [the plaintiff] wished to comment.”  

The court further explains:

The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public of­ficial might be unable to prevent someone from commenting on his personal posts without risking liability for also pre­venting comments on his official posts. A public official who fails to keep personal posts in a clearly designated per­sonal account therefore exposes himself to greater potential liability.

We are pleased with this language and hope it discourages government officials from engaging in the most egregious of censorship practices.

The Supreme Court also makes the point that if the censorship was the deletion of a plaintiff’s individual comments under a government official’s posts, then those posts must each be analyzed under the court’s new test to determine whether a particular post was official action and whether the interactive spaces that accompany it are government forums. As the court states, “it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” This is in contrast to the Sixth Circuit, which held, “When analyzing social-media activity, we look to a page or account as a whole, not each individual post.”

The Supreme Court’s new test for state action unfortunately puts a thumb on the scale in favor of government officials who wish to censor constituents who engage with them on social media. However, the test does chart a path forward on this issue and should be workable if lower courts apply the test with an eye toward maximizing constituents’ First Amendment rights online.

In a case being heard Monday at the Supreme Court, 45 Washington lawmakers have argued that government communications with social media sites about possible election interference misinformation are illegal.

Agencies can't even pass on information about websites state election officials have identified as disinformation, even if they don't request that any action be taken, they assert.

Yet just this week the vast majority of those same lawmakers said the government's interest in removing election interference misinformation from social media justifies banning a site used by 150 million Americans.

On Monday, the Supreme Court will hear oral arguments in Murthy v. Missouri, a case that raises the issue of whether the federal government violates the First Amendment by asking social media platforms to remove or negatively moderate user posts or accounts. In Murthy, the government contends that it can strongly urge social media sites to remove posts without violating the First Amendment, as long as it does not coerce them into doing so under the threat of penalty or other official sanction.

We recognize both the hazards of government involvement in content moderation and the proper role in some situations for the government to share its expertise with the platforms. In our brief in Murthy, we urge the court to adopt a view of coercion that includes indirectly coercive communications designed and reasonably perceived as efforts to replace the platform’s editorial decision-making with the government’s.

And we argue that close cases should go against the government. We also urge the court to recognize that the government may and, in some cases, should appropriately inform platforms of problematic user posts. But it’s the government’s responsibility to make sure that its communications with the platforms are reasonably perceived as being merely informative and not coercive.

In contrast, the Members of Congress signed an amicus brief in Murthy supporting placing strict limitations on the government’s interactions with social media companies. They argued that the government may hardly communicate at all with social media platforms when it detects problematic posts.

Notably, the specific posts they discuss in their brief include, among other things, posts the U.S. government suspects are foreign election interference. For example, the case includes allegations about the FBI and CISA improperly communicating with social media sites that boil down to the agency passing on pertinent information, such as websites that had already been identified by state and local election officials as disinformation. The FBI did not request that any specific action be taken and sought to understand how the sites' terms of service would apply.

As we argued in our amicus brief, these communications don't add up to the government dictating specific editorial changes it wanted. It was providing information useful for sites seeking to combat misinformation. But, following an injunction in Murthy, the government has ceased sharing intelligence about foreign election interference. Without the information, Meta reports its platforms could lack insight into the bigger threat picture needed to enforce its own rules.

The problem of election misinformation on social media also played a prominent role this past week when the U.S. House of Representatives approved a bill that would bar app stores from distributing TikTok as long as it is owned by its current parent company, ByteDance, which is headquartered in Beijing. The bill also empowers the executive branch to identify and similarly ban other apps that are owned by foreign adversaries.

As stated in the House Report that accompanied the so-called "Protecting Americans from Foreign Adversary Controlled Applications Act," the law is needed in part because members of Congress fear the Chinese government “push[es] misinformation, disinformation, and propaganda on the American public” through the platform. Those who supported the bill thus believe that the U.S. can take the drastic step of banning an app for the purposes of preventing the spread of “misinformation and propaganda” to U.S. users. A public report from the Office of the Director for National Intelligence was more specific about the threat, indicating a special concern for information meant to interfere with the November elections and foment societal divisions in the U.S.

Over 30 members of the House who signed the amicus brief in Murthy voted for the TikTok ban. So, many of the same people who supported the U.S. government’s efforts to rid a social media platform of foreign misinformation, also argued that the government’s ability to address the very same content on other social media platforms should be sharply limited.

Admittedly, there are significant differences between the two positions. The government does have greater limits on how it regulates the speech of domestic companies than it does the speech of foreign companies.

But if the true purpose of the bill is to get foreign election misinformation off of social media, the inconsistency in the positions is clear.  If ByteDance sells TikTok to domestic owners so that TikTok can stay in business in the U.S., and if the same propaganda appears on the site, is the U.S. now powerless to do anything about it? If so, that would seem to undercut the importance in getting the information away from U.S. users, which is one the chief purposes of the TikTik ban.

We believe there is an appropriate role for the government to play, within the bounds of the First Amendment, when it truly believes that there are posts designed to interfere with U.S. elections or undermine U.S. security on any social media platform. It is a far more appropriate role than banning a platform altogether.

The U.S. Supreme Court has taken an unusually active interest in internet free speech issues. EFF participated as amicus in a whopping nine cases before the court this year. The court decided four of those cases, and decisions in the remaining five cases will be published in 2024.   

Of the four cases decided this year, the results are a mixed bag. The court showed restraint and respect for free speech rights when considering whether social media platforms should be liable for ISIS content, while also avoiding gutting one of the key laws supporting free speech online. The court also heightened protections for speech that may rise to the level of criminal “true threats.” But the court declined to overturn an overbroad law that relates to speech about immigration.  

Next year, we’re hopeful that the court will uphold the right of individuals to comment on government officials’ social media pages, when those pages are largely used for governmental purposes and even when the officials don’t like what those comments say; and that the court will strike down government overreach in mandating what content must stay up or come down online, or otherwise distorting social media editorial decisions. 

Platform Liability for Violent Extremist Content 

Cases: Gonzalez v. Google and Twitter v. Taamneh – DECIDED 

The court, in two similar cases, declined to hold social media companies—YouTube and Twitter—responsible for aiding and abetting terrorist violence allegedly caused by user-generated content posted to the platforms. The case against YouTube (Google) was particularly concerning because the plaintiffs had asked the court to narrow the scope of Section 230 when internet intermediaries recommend third-party content. As we’ve said for decades, Section 230 is one of the most important laws for protecting internet users’ speech. We argued in our brief that narrowing Section 230, the law that generally protects users and online services from lawsuits based on content created by others, in any way would lead to increased censorship and a degraded online experience for users; as would holding platforms responsible for aiding and abetting acts of terrorism. Thankfully, the court declined to address the scope of Section 230 and held that the online platforms may not generally be held liable under the Anti-Terrorism Act. 

True Threats Online 

Case: Counterman v. Colorado – DECIDED 

The court considered what state of mind a speaker must have to lose First Amendment protection and be liable for uttering “true threats,” in a case involving Facebook messages that led to the defendant’s conviction. The issue before the court was whether any time the government seeks to prosecute someone for threatening violence against another person, it must prove that the speaker had some subjective intent to threaten the victim, or whether the government need only prove, objectively, that a reasonable person would have known that their speech would be perceived as a threat. We urged the court to require some level of subjective intent to threaten before an individual’s speech can be considered a "true threat" not protected by the First Amendment. In our highly digitized society, online speech like posts, messages, and emails, can be taken out of context, repackaged in ways that distort or completely lose their meaning, and spread far beyond the intended recipients. This higher standard is thus needed to protect speech such as humor, art, misunderstandings, satire, and misrepresentations. The court largely agreed and held that subjective understanding by the defendant is required: that, at minimum, the speaker was in fact subjectively aware of the serious risk that the recipient of the statements would regard their speech as a threat, but recklessly made them anyway.  

Encouraging Illegal Immigration  

Case: U.S. v. Hansen - DECIDED  

The court upheld the Encouragement Provision that makes it a federal crime to “encourage or induce” an undocumented immigrant to “reside” in the United States, if one knows that such “coming to, entry, or residence” in the U.S. will be in violation of the law. We urged the court to uphold the Ninth Circuit’s ruling, which found that the language is unconstitutionally overbroad under the First Amendment because it threatens an enormous amount of protected online speech. This includes prohibiting, for example, encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, or even providing noncitizens with Know Your Rights resources or certain other forms of legal advice. Although the court declined to hold the law unconstitutional, it sharply narrowed the law’s impact on free speech, ruling that the Encouragement Provision applies only to the intentional solicitation or facilitation of immigration law violations. 

Public Officials Censoring Social Media Comments 

Cases: O’Connor-Ratcliff v. Garnier and Lindke v. Freed – PENDING 

The court is considering a pair of cases related to whether government officials who use social media may block individuals or delete their comments because the government disagrees with their views. The First Amendment generally prohibits viewpoint-based discrimination in government forums open to speech by members of the public. The threshold question in these cases is what test must be used to determine whether a government official’s social media page is largely private and therefore not subject to First Amendment limitations, or is largely used for governmental purposes and thus subject to the prohibition on viewpoint discrimination and potentially other speech restrictions. We argued that the court should establish a functional test that looks at how an account is actually used. It is important that the court make clear once and for all that public officials using social media in furtherance of their official duties can’t sidestep their First Amendment obligations because they’re using nominally “personal” or preexisting campaign accounts. 

Government Mandates for Platforms to Carry Certain Online Speech 

Cases: NetChoice v. Paxton and Moody v. NetChoice - PENDING 

The court will hear arguments this spring about whether laws in Florida and Texas violate the First Amendment because they allow those states to dictate when social media sites may not apply standard editorial practices to user posts. Although the state laws differ in how they operate and the type of mandates they impose, each law represents a profound intrusion into social media sites’ ability to decide for themselves what speech they will publish and how they will present it to users. As we argued in urging the court to strike down both laws, allowing social media sites to be free from government interference in their content moderation ultimately benefits internet users. When platforms have First Amendment rights to curate the user-generated content they publish, they can create distinct forums that accommodate diverse viewpoints, interests, and beliefs. To be sure, internet users are rightly frustrated with social media services’ content moderation practices, which are often perplexing and mistaken. But permitting Florida and Texas to deploy the state’s coercive power in retaliation for those concerns raises significant First Amendment and human rights concerns. 

Government Coercion in Content Moderation 

Case: Murthy v. Missouri – PENDING 

Last, but certainly not least, the court is considering the limits on government involvement in social media platforms’ enforcement of their policies. The First Amendment prohibits the government from directly or indirectly forcing a publisher to censor another’s speech. But the court has not previously applied this principle to government communications with social media sites about user posts. We urged the court to recognize that there are both circumstances where government involvement in platforms’ policy enforcement decisions is permissible and those where it is impermissible. We also urged the court to make clear that courts reviewing claims of impermissible government involvement in content moderation are obligated to conduct fact and context-specific inquires. And we argued that close cases should go against the government, as it is the best positioned to ensure that its involvement in platforms’ policy enforcement decisions remains permissible. 

This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.

Intern Muhammad Essa contributed to this post.

EFF, along with the Foundation for Individual Rights and Expression (FIRE), filed a brief in the U.S. Court of Appeals for the D.C. Circuit urging the court to reverse a lower court ruling that upheld the censorship of public comments on a government agency’s social media pages. The district court’s decision is problematic because it undermines our right to freely express opinions on issues of public importance using a modern and accessible way to communicate with government representatives.

People for the Ethical Treatment of Animals (PETA) sued the National Institutes of Health (NIH), arguing that NIH blocks their comments against animal testing in scientific research on the agency’s Facebook and Instagram pages, thus violating of the First Amendment. NIH provides funding for research that involves testing on animals from rodents to primates.

NIH claims to apply a general rule prohibiting public comments that are “off topic” to the agency’s social media posts—yet the agency implements this rule by employing keyword filters that include words such as cruelty, revolting, tormenting, torture, hurt, kill, and stop. These words are commonly found in comments that express a viewpoint that is against animal testing and sympathetic to animal rights.

First Amendment law makes it clear that when a government agency opens a forum for public participation, such as the interactive spaces of the agency’s social media pages, it is prohibited from censoring a particular viewpoint in that forum. Any speech restrictions that it may apply must be viewpoint-neutral, meaning that the restrictions should apply equally to all viewpoints related to a topic, not just to the viewpoint that the agency disagrees with.

EFF’s brief argues that courts must approach with scepticism a government agency’s claim that its “off topic” speech restriction is viewpoint-neutral and is only intended to exclude irrelevant comments. How such a rule is implemented could reveal that it is in fact a guise for unconstitutional viewpoint discrimination. This is the case here and the district court erred in ruling for the government.

For example, EFF’s brief argues that NIH’s automated keyword filters are imprecise—they are incapable of accurately implementing an “off topic” rule because they are incapable of understanding context and nuance, which is necessary when comparing a comment to a post. Also, NIH’s keyword filters and the agency’s manual enforcement of the “off topic” rule are highly underinclusive—that is, other people's comments that are “off topic” to a post are often allowed to remain on the agency’s social media pages. Yet PETA’s comments against animal testing are reliably censored.

Imprecise and underinclusive enforcement of the “off topic” rule suggests that NIH’s rule is not viewpoint-neutral but is really a means to block PETA activists from engaging with the agency online.

EFF’s brief urges the D.C. Circuit to reject the district court’s erroneous holding and rule in favor of the plaintiffs. This would protect everyone’s right to express their opinions freely online. The free exchange of opinions informs public policy and is a crucial characteristic of a democratic society. A genuine representative government must not be afraid of public criticism.