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.

Canadian lawmakers are considering a bill, S-210, that’s meant to benefit children, but would sacrifice the security, privacy, and free speech of all internet users.

First introduced in 2023, S-210 seeks to prevent young people from encountering sexually explicit material by requiring all commercial internet services that “make available” explicit content to adopt age verification services. Typically, these services will require people to show government-issued ID to get on the internet. According to bill authors, this is needed to prevent harms like the “development of pornography addiction” and “the reinforcement of gender stereotypes and the development of attitudes favorable to harassment and violence…particularly against women.”

The motivation is laudable, but requiring people of all ages to show ID to get online won’t help women or young people. If S-210 isn't stopped before it reaches the third reading and final vote in the House of Commons, Canadians will be forced to a repressive and unworkable age verification regulation. 

Flawed Definitions Would Encompass Nearly the Entire Internet 

The bill’s scope is vast. S-210 creates legal risk not just for those who sell or intentionally distribute sexually explicit materials, but also for those who just transmit it–knowingly or not.

Internet infrastructure intermediaries, which often do not know the type of content they are transmitting, would also be liable, as would all services from social media sites to search engines and messaging platforms. Each would be required to prevent access by any user whose age is not verified, unless they can claim the material is for a “legitimate purpose related to science, medicine, education or the arts,” or by implementing age verification. 

Basic internet infrastructure shouldn’t be regulating content at all, but S-210 doesn’t make the distinction. When these large services learn they are hosting or transmitting sexually explicit content, most will simply ban or remove it outright, using both automated tools and hasty human decision-making. History shows that over-censorship is inevitable. When platforms seek to ban sexual content, over-censorship is very common.

Rules banning sexual content usually hurt marginalized communities and groups that serve them the most. That includes organizations that provide support and services to victims of trafficking and child abuse, sex workers, and groups and individuals promoting sexual freedom.

Promoting Dangerous Age Verification Methods 

S-210 notes that “online age-verification technology is increasingly sophisticated and can now effectively ascertain the age of users without breaching their privacy rights.”

This premise is just wrong. There is currently no technology that can verify users’ ages while protecting their privacy. The bill does not specify what technology must be used, leaving it for subsequent regulation. But the age verification systems that exist are very problematic. It is far too likely that any such regulation would embrace tools that retain sensitive user data for potential sale or harms like hacks and lack guardrails preventing companies from doing whatever they like with this data once collected.

We’ve said it before: age verification systems are surveillance systems. Users have no way to be certain that the data they’re handing over is not going to be retained and used in unexpected ways, or even shared to unknown third parties. The bill asks companies to maintain user privacy and destroy any personal data collected but doesn’t back up that suggestion with comprehensive penalties. That’s not good enough.

Companies responsible for storing or processing sensitive documents like drivers’ licenses can encounter data breaches, potentially exposing not only personal data about users, but also information about the sites that they visit.

Finally, age-verification systems that depend on government-issued identification exclude altogether Canadians who do not have that kind of ID.

Fundamentally, S-210 leads to the end of anonymous access to the web. Instead, Canadian internet access would become a series of checkpoints that many people simply would not pass, either by choice or because the rules are too onerous.

Dangers for Everyone, But This Can Be Stopped

Canada’s S-210 is part of a wave of proposals worldwide seeking to gate access to sexual content online. Many of the proposals have similar flaws. Canada’s S-210 is up there with the worst. Both Australia and France have paused the rollout of age verification systems, because both countries found that these systems could not sufficiently protect individuals’ data or address the issues of online harms alone. Canada should take note of these concerns.

It's not too late for Canadian lawmakers to drop S-210. It’s what has to be done to protect the future of a free Canadian internet. At the very least, the bill’s broad scope must be significantly narrowed to protect user rights.

EFF, Access Now, and Article 19 have written to EU Commissioner for Internal Market Thierry Breton calling on him to clarify his understanding of “systemic risks” under the Digital Services Act, and to set a high standard for the protection of fundamental rights, including freedom of expression and of information. The letter was in response to Breton’s own letter addressed to X, in which he urged the platform to take action to ensure compliance with the DSA in the context of far-right riots in the UK as well as the conversation between US presidential candidate Donald Trump and X CEO Elon Musk, which was scheduled to be, and was in fact, live-streamed hours after his letter was posted on X. 

Clarification is necessary because Breton’s letter otherwise reads as a serious overreach of EU authority, and transforms the systemic risks-based approach into a generalized tool for censoring disfavored speech around the world. By specifically referencing the streaming event between Trump and Musk on X, Breton’s letter undermines one of the core principles of the DSA: to ensure fundamental rights protections, including freedom of expression and of information, a principle noted in Breton’s letter itself.

The DSA Must Not Become A Tool For Global Censorship

The letter plays into some of the worst fears of critics of the DSA that it would be used by EU regulators as a global censorship tool rather than addressing societal risks in the EU. 

The DSA requires very large online platforms (VLOPs) to assess the systemic risks that stem from “the functioning and use made of their services in the [European] Union.” VLOPs are then also required to adopt “reasonable, proportionate and effective mitigation measures,”“tailored to the systemic risks identified.” The emphasis on systemic risks was intended, at least in part, to alleviate concerns that the DSA would be used to address individual incidents of dissemination of legal, but concerning, online speech. It was one of the limitations that civil society groups concerned with preserving a free and open internet worked hard to incorporate. 

Breton’s letter troublingly states that he is currently monitoring “debates and interviews in the context of elections” for the “potential risks” they may pose in the EU. But such debates and interviews with electoral candidates, including the Trump-Musk interview, are clearly matters of public concern—the types of publication that are deserving of the highest levels of protection under the law. Even if one has concerns about a specific event, dissemination of information that is highly newsworthy, timely, and relevant to public discourse is not in itself a systemic risk.

People seeking information online about elections have a protected right to view it, even through VLOPs. The dissemination of this content should not be within the EU’s enforcement focus under the threat of non-compliance procedures, and risks associated with such events should be analyzed with care. Yet Breton’s letter asserts that such publications are actually under EU scrutiny. And it is entirely unclear what proactive measures a VLOP should take to address a future speech event without resorting to general monitoring and disproportionate content restrictions. 

Moreover, Breton’s letter fails to distinguish between “illegal” and “harmful content” and implies that the Commission favors content-specific restrictions of lawful speech. The European Commission has itself recognized that “harmful content should not be treated in the same way as illegal content.” Breton’s tweet that accompanies his letter refers to the “risk of amplification of potentially harmful content.” His letter seems to use the terms interchangeably. Importantly, this is not just a matter of differences in the legal protections for speech between the EU, the UK, the US, and other legal systems. The distinction, and the protection for legal but harmful speech, is a well-established global freedom of expression principle. 

Lastly, we are concerned that the Commission is reaching beyond its geographic mandate.  It is not clear how such events that occur outside the EU are linked to risks and societal harm to people who live and reside within the EU, as well as the expectation of the EU Commission about what actions VLOPs must take to address these risks. The letter itself admits that the assessment is still in process, and the harm merely a possibility. EFF and partners within the DSA Human Rights Alliance have advocated for a long time that there is a great need to follow a human rights-centered enforcement of the DSA that also considers the global effects of the DSA. It is time for the Commission to prioritize their enforcement actions accordingly. 

Read the full letter here.

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.

It’s a simple proposition: no single country should be able to restrict speech across the entire internet. Any other approach invites a swift relay race to the bottom for online expression, giving governments and courts in countries with the weakest speech protections carte blanche to edit the internet.

Unfortunately, governments, including democracies that care about the rule of law, too often lose sight of this simple proposition. That’s why EFF, represented by Johnson Winter Slattery, has moved to intervene in support of X, formerly known as Twitter’s legal challenge to a global takedown order from Australia’s eSafety Commissioner. The Commissioner ordered X and Meta to take down a post with a video of a stabbing in a church. X complied by geo-blocking the post so Australian users couldn’t access it, but it declined to block it elsewhere. The Commissioner asked an Australian court to order a global takedown.

Our intervention calls the court’s attention to the important public interests at stake in this litigation, particularly for internet users who are not parties to the case but will nonetheless be affected by the precedent it sets. A ruling against X is effectively a declaration that an Australian court (or its eSafety Commissioner) can prevent internet users around the world from accessing something online, even if the law in their own country is quite different. In the United States, for example, the First Amendment guarantees that platforms generally have the right to decide what content they will host, and their users have a corollary right to receive it. 

We’ve seen this movie before. In Google v Equustek, a company used a trade secret claim to persuade a Canadian court to order Google to delete search results linking to sites that contained allegedly infringing goods from Google.ca and all other Google domains, including Google.com and Google.co.uk. Google appealed, but both the British Columbia Court of Appeal and the Supreme Court of Canada upheld the order. The following year, a U.S. court held the ruling couldn’t be enforced against Google US. 

The Australian takedown order also ignores international human rights standards, restricting global access to information without considering less speech-intrusive alternatives. In other words: the Commissioner used a sledgehammer to crack a nut. 

If one court can impose speech-restrictive rules on the entire Internet—despite direct conflicts with laws a foreign jurisdiction as well as international human rights principles—the norms of expectations of all internet users are at risk. We’re glad X is fighting back, and we hope the judge will recognize the eSafety regulator’s demand for what it is—a big step toward unchecked global censorship—and refuse to let Australia set another dangerous precedent.

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.

We’ve been saying it for 20 years, and it remains true now more than ever: the internet is an essential service. It enables people to build and create communities, shed light on injustices, and acquire vital knowledge that might not otherwise be available. And access to it becomes even more imperative in circumstances where being able to communicate and share real-time information directly with the people you trust is instrumental to personal safety and survival. More specifically, during wartime and conflict, internet and phone services enable the communication of information between people in challenging situations, as well as the reporting by on-the-ground journalists and ordinary people of the news. 

Unfortunately, governments across the world are very aware of their power to cut off this crucial lifeline, and frequently undertake targeted initiatives to do so. These internet shutdowns have become a blunt instrument that aid state violence and inhibit free speech, and are routinely deployed in direct contravention of human rights and civil liberties.

And this is not a one-dimensional situation. Nearly twenty years after the world’s first total internet shutdowns, this draconian measure is no longer the sole domain of authoritarian states but has become a favorite of a diverse set of governments across three continents. For example:

In Iran, the government has been suppressing internet access for many years. In the past two years in particular, people of Iran have suffered repeated internet and social media blackouts following an activist movement that blossomed after the death of Mahsa Amini, a woman murdered in police custody for refusing to wear a hijab. The movement gained global attention and in response, the Iranian government rushed to control both the public narrative and organizing efforts by banning social media, and sometimes cutting off internet access altogether. 

In Sudan, authorities have enacted a total telecommunications blackout during a massive conflict and displacement crisis. Shutting down the internet is a deliberate strategy blocking the flow of information that brings visibility to the crisis and prevents humanitarian aid from supporting populations endangered by the conflict. The communications blackout has extended for weeks, and in response a global campaign #KeepItOn has formed to put pressure on the Sudanese government to restore its peoples' access to these vital services. More than 300 global humanitarian organizations have signed on to support #KeepItOn.

And in Palestine, where the Israeli government exercises near-total control over both wired internet and mobile phone infrastructure, Palestinians in Gaza have experienced repeated internet blackouts inflicted by the Israeli authorities. The latest blackout in January 2024 occurred amid a widespread crackdown by the Israeli government on digital rights—including censorship, surveillance, and arrests—and amid accusations of bias and unwarranted censorship by social media platforms. On that occasion, the internet was restored after calls from civil society and nations, including the U.S. As we’ve noted, internet shutdowns impede residents' ability to access and share resources and information, as well as the ability of residents and journalists to document and call attention to the situation on the ground—more necessary than ever given that a total of 83 journalists have been killed in the conflict so far. 

Given that all of the internet cables connecting Gaza to the outside world go through Israel, the Israeli Ministry of Communications has the ability to cut off Palestinians’ access with ease. The Ministry also allocates spectrum to cell phone companies; in 2015 we wrote about an agreement that delivered 3G to Palestinians years later than the rest of the world. In 2022, President Biden offered to upgrade the West Bank and Gaza to 4G, but the initiative stalled. While some Palestinians are able to circumvent the blackout by utilizing Israeli SIM cards (which are difficult to obtain) or Egyptian eSIMs, these workarounds are not solutions to the larger problem of blackouts, which the National Security Council has said: “[deprive] people from accessing lifesaving information, while also undermining first responders and other humanitarian actors’ ability to operate and to do so safely.”

Access to internet infrastructure is essential, in wartime as in peacetime. In light of these numerous blackouts, we remain concerned about the control that authorities are able to exercise over the ability of millions of people to communicate. It is imperative that people’s access to the internet remains protected, regardless of how user platforms and internet companies transform over time. We continue to shout this, again and again, because it needs to be restated, and unfortunately today there are ever more examples of it happening before our eyes.

Legal intern Muhammad Essa Fasih contributed to this post.

Social media is a crucial means of communication in times of conflict—it’s where communities connect to share updates, find help, locate loved ones, and reach out to express grief, pain, and solidarity. Unjustified takedowns during crises like the war in Gaza deprives people of their right to freedom of expression and can exacerbate humanitarian suffering.

In the weeks since war between Hamas and Israel began, social media platforms have removed content from or suspended accounts of Palestinian news sites, activists, journalists, students, and Arab citizens in Israel, interfering with the dissemination of news about the conflict and silencing voices expressing concern for Palestinians.

The platforms say some takedowns were caused by security issues, technical glitches, mistakes that have been fixed, or stricter rules meant to reduce hate speech. But users complain of unexplained removals of posts about Palestine since the October 7 Hamas terrorist attacks.

Meta’s Facebook shut down the page of independent Palestinian website Quds News Network, a primary source of news for Palestinians with 10 million followers. The network said its Arabic and English news pages had been deleted from Facebook, though it had been fully complying with Meta's defined media standards. Quds News Network has faced similar platform censorship before—in 2017, Facebook censored its account, as did Twitter in 2020.

Additionally, Meta’s Instagram has locked or shut down accounts with significant followings. Among these are Let’s Talk Palestine, an account with over 300,000 followers that shows pro-Palestinian informative content, and Palestinian media outlet 24M. Meta said the accounts were locked for security reasons after signs that they were compromised.

The account of the news site Mondoweiss was also banned by Instagram and taken down on TikTok, later restored on both platforms.

Meanwhile, Instagram, Tiktok, and LinkedIn users sympathetic to or supportive of the plight of Palestinians have complained of “shadow banning,” a process in which the platform limits the visibility of a user's posts without notifying them. Users say the platform limited the visibility of posts that contained the Palestinian flag.

Meta has admitted to suppressing certain comments containing the Palestinian flag in certain “offensive contexts” that violate its rules. Responding to a surge in hate speech after Oct.7, the company lowered the threshold for predicting whether comments qualify as harassment or incitement to violence from 80 percent to 25 percent for users in Palestinian territories. Some content creators are using code words and emojis and shifting the spelling of certain words to evade automated filtering. Meta needs to be more transparent about decisions that downgrade users’ speech that does not violate its rules.

For some users, posts have led to more serious consequences. Palestinian citizens of Israel, including well-known singer Dalal Abu Amneh from Nazareth, have been arrested for social media postings about the war in Gaza that are alleged to express support for the terrorist group Hamas.

Amneh’s case demonstrates a disturbing trend concerning social media posts supporting Palestinians. Amneh’s post of the Arabic motto “There is no victor but God” and the Palestinian flag was deemed as incitement. Amneh, whose music celebrates Palestinian heritage, was expressing religious sentiment, her lawyer said, not calling for violence as the police claimed.

She received hundreds of death threats and filed a complaint with Israeli police, only to be taken into custody. Her post was removed. Israeli authorities are treating any expression of support or solidarity with Palestinians as illegal incitement, the lawyer said.

Content moderation does not work at scale even in the best of times, as we have said repeatedly. At all times, mistakes can lead to censorship; during armed conflicts they can have devastating consequences.

Whether through content moderation or technical glitches, platforms may also unfairly label people and communities. Instagram, for example, inserted the word “terrorist” into the profiles of some Palestinian users when its auto-translation converted the Palestinian flag emoji followed by the Arabic word for “Thank God” into “Palestinian terrorists are fighting for their freedom.” Meta apologized for the mistake, blaming it on a bug in auto-translation. The translation is now “Thank God.”

Palestinians have long fought private censorship, so what we are seeing now is not particularly new. But it is growing at a time when online speech protections are sorely needed. We call on companies to clarify their rules, including any specific changes that have been made in relation to the ongoing war, and to stop the knee jerk reaction to treat posts expressing support for Palestinians—or notifying users of peaceful demonstrations, or documenting violence and the loss of loved ones—as incitement and to follow their own existing standards to ensure that moderation remains fair and unbiased.

Platforms should also follow the Santa Clara Principles on Transparency and Accountability in Content Moderation notify users when, how, and why their content has been actioned, and give them  the opportunity to appeal. We know Israel has worked directly with Facebook, requesting and garnering removal of content it deemed incitement to violence, suppressing posts by Palestinians about human rights abuses during May 2021 demonstrations that turned violent.

The horrific violence and death in Gaza is heartbreaking. People are crying out to the world, to family and friends, to co-workers, religious leaders, and politicians their grief and outrage. Labeling large swaths of this outpouring of emotion by Palestinians as incitement is unjust and wrongly denies people an important outlet for expression and solace.

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.