[00:00:00] Speaker 03:
Case number 23-5110, people for the ethical treatment of animals at all at balance versus Lawrence Atabek in his official capacity as acting director of the National Institutes of Health and Xavier Becerra in his official capacity as secretary of the US Department of Health and Human Services.

[00:00:18] Speaker 03:
Ms.

[00:00:19] Speaker 03:
Grant for the balance, Ms.

[00:00:20] Speaker 03:
Utrecht for the epilies.

[00:00:22] Speaker 02:
Good morning, Ms.

[00:00:23] Speaker 02:
Grant.

[00:00:27] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:00:30] Speaker 04:
My name is Stephanie Crenn, and I represent the Plaintiff Appellants.

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This case is about a government agency's decision to ban criticism of its policies in otherwise open comment threads on the agency's social media pages.

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The NIH uses keyword blocking on Facebook and Instagram, which functions as a prior restraint on all comments that contain the words and phrases of the agency's choosing.

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Here, without informing the public, the NIH has chosen to censor phrases like stop animal testing, torture, and hurt.

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This is brazen discrimination against criticism of the agency's own role funding animal testing.

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And it distorts public debate about the NIH's priorities and its practices.

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The district no longer bans hashtag stop animal testing, correct?

[00:01:23] Speaker 04:
That's right, Your Honor.

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After this case was filed, the NIH removed a few words from its list of blocked keywords, including stop animal testing and PETA, which it had also previously censored.

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But that decision was supposed to.

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This is just for injunctive relief, this case.

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So we're just supposed to look at the policy in its current form?

[00:01:42] Speaker 04:
No, Your Honor.

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I think you also need to look at the policy as it was implemented when the case was filed.

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That's because although those keywords were removed, it hasn't been accompanied by any statement from the NIH that it will not block those terms in the future.

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And there is nothing in the district court's opinion that would prevent it from blocking those terms again tomorrow.

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So I think they're still relevant to showing why the NIH's conduct here was viewpoint discriminatory in and of themselves.

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They're also relevant because I think they color the rest of the list of the blocked keywords that's at issue in this case, words that are still unblocked like torture, torment, hurt,

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stop, kill, these words are all indicative of criticism of animal testing rather than animal testing as a subject matter.

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And I think that's made even clearer when you take a step back and look at the NIH's overall course of conduct.

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Now, it's the government's burden to prove that it's conduct.

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This is something that

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I find difficult.

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All these points you're making would be relevant if you thought intent is what mattered for viewpoint discrimination, but it's quite emphatically not your position that intent matters.

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Is that right?

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So I think we have to do some form of looking at these keywords objectively to decide whether they are on their face viewpoint discriminatory.

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Is that right as a methodological matter?

[00:03:01] Speaker 04:
I think that is right, Your Honor.

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And I think when you look at the list of keywords themselves, looking just on their face, you can see that the keywords themselves are evocative of a particular viewpoint.

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Cruel, revolting, stop testing.

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sort of related to Judge Millett's question, but how are we supposed to do this?

[00:03:21] Speaker 01:
Is it word by word?

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Do we just look at them as a whole and say, this policy as a whole on its face discriminates?

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Because this could get tricky given, for example, that they've removed some of the terms.

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Can you lay out how you would tell us to write that in an opinion?

[00:03:41] Speaker 04:
Yes, your honor.

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I think you should look at the list of block keywords as a whole.

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And that's the list that we've highlighted at JA 76, which is the joint stipulation.

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The reason for that is the government has always defended this list as a whole.

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It hasn't highlighted any of these keywords as not being targeted towards the criticism at issue in this case.

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And I think the fact that the NIH is targeting criticism as a kind of

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objective indicia of its intent here, intent as in a desire to block off a certain viewpoint and treat it disfavorably, not intent as in benign motive here, is made even clearer by the overall record.

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The NIH has argued in this case that it's enforcing an off-topic policy.

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It's the NIH's burden to prove that that's true, that its conduct is not

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In fact, viewpoint discriminatory and the overall course of conduct here, I think just undercuts that argument entirely because it is so over inclusive and under inclusive when compared to the NIH's goal.

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It's over inclusive because this undoubtedly suppresses speech that is on topic, even under the NIH's narrow view of topicality.

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And I think the NIH will tell you that this is a small amount of speech on its social media pages, but it's not.

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There are 37 different Facebook and Instagram posts in the record.

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Over a third of those posts directly reference animal testing in the text of the post itself.

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Promote us.

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It feels to me like there's a bit of talking past each other in this case, because their argument is,

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We're not blocking these things because of the particular viewpoint.

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We're blocking them because they are inundating.

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These are the words that are inundating our comment threads so that other comments get lost, so that people get deterred from coming to our pages and commenting themselves.

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These comments are suffocating.

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are Facebook and Instagram comment threads.

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And so that's why we have picked those words.

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One, is it accurate?

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Is that flooding accurate?

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So whether or not the subject post is about or implicates animals or animal testing.

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These comments are flooding their comment threads, or were, before the keyword stops, flooding and just sort of hijacking the comment threads?

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No, Your Honor, I don't think that is accurate.

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The government points to a handful of exhibits, and it's certainly true that in those exhibits there is a high volume.

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of speech criticizing animal testing.

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But there are many other exhibits in the record that don't feature any criticism of animal testing.

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I'm not clear to me whether those ones were post-keyword blocking or not.

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But it seems to me like, I know you all did a stipulated record, but if their theory is this inundation or hijacking of our common threads and yours is viewpoint discrimination,

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There's a critical fact, critical facts that need to be resolved here about this volume.

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Take it away from your client, but if there were some entity, the Flat Earth Society, and every time anything was posted on NIH or the US Geological Service or NASA, they would blast it and drown it.

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with flat earth advocacy.

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In that situation, if an agency were to block flat earth as a keyword,

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and not black black ground earth comments.

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Would that be viewpoint discrimination in that scenario?

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I know you factually you don't say that's where we are, but we just don't have a fact finding one way or the other.

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But if we had such a fact finding, would it be viewpoint discrimination still?

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Yes, I think even then it would be viewpoint discrimination.

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And that's why I don't think that agencies have no capacity

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and on their Facebook pages, on their Instagram pages to control in any way the subject matter of comment threads?

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They do.

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They absolutely have that authority, Your Honor.

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And the NIH could have taken a number of different courses here, right?

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It could have used manual moderation to ensure that it was actually a- Let's just assume for government agencies or for others that have hundreds and hundreds of thousands of people following their websites,

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government don't have the resources.

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They would rather, during a pandemic, spend their resources on dealing with public health issues than manually moderating common threads.

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I think that is an unrealistic way of assuming the government is supposed to function, is manually reviewing that.

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And by the way, if they were doing that, y'all would be bringing challenges about the lack of guidance and the uncontrolled discretion of the manual monitors.

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So I'm not sure that's an answer.

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have the situation where certain speakers, the common thread, at this point maybe they even got bots doing it for them, are suffocating a government web page's comment threads.

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That's not an objective, non-viewpoint based.

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We're picking the words based on the volume of appearance

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extraordinary volume of appearance and the consequences of that, not their meaning.

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Well, Your Honor, I want to make three points in response to that.

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The first is, as you say, I do think there are factual questions if what you're focused on is- You have a summary judgment on this record, too.

[00:09:37] Speaker 02:
You both did.

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That's what's difficult about this.

[00:09:40] Speaker 04:
That's right, Your Honor.

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And I think there are factual questions if you think the government's subjective intent matters, if you think

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that it is allowed to discriminate on the basis of viewpoint if it has a viewpoint-neutral rationale for doing so.

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We don't think that's true, but I do think that more fact-finding would be required.

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You just said, even if they don't care about viewpoint, they're only targeting volume words and volumes at extraordinary level.

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It sort of hijacks their page.

[00:10:10] Speaker 02:
That's right.

[00:10:11] Speaker 02:
That's still viewpoint discrimination.

[00:10:13] Speaker 02:
That's right, because it's not about the motive.

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Not motive, I'm talking about objectively they can demonstrate in the record the volume, the consequences, and that the only words they've picked are the ones that are throttling.

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their social media communications.

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I think the problem here is that that's still viewpoint discrimination.

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We're assuming now there's no subjective intent and the objective explanation is related to something unconnected with viewpoint.

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I think you need to look at cases like Lamb's Chapel, where the court said, even if you have a justifiable reason for wanting to keep religion out of school facilities, when you target religion, even if you target all religions and you prevent religious speech, an otherwise- Deliberate, conscious intent.

[00:11:04] Speaker 02:
to keep a particular viewpoint out on subjects that were already being discussed because of the viewpoint.

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It was not a case where, it's hard to imagine how this would happen in a physical facility, but you know, if they opened the doors, they were going to eight million people trying to squeeze into the high school gymnasium.

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And so we said, it turns out every time it's a religious group that wants to speak here, they bring eight million people and we have fire hazards and we get the whole place shut down.

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And they said, so we just can't let these groups that have 8 million people, and the list of those groups happens to all be religious groups.

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That would still be viewpoint discrimination at Lamb's Chapel, when they have an objective reason for doing that's not related to content.

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I think that would be a different case, Your Honor, because I'm hypothesizing.

[00:11:54] Speaker 04:
Well, I think in that case, it would depend on the government's justification.

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If it could build out a record, then that might be a sort of content neutral reason for limiting.

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So if we build out a record, I don't know if they could or not.

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We don't have these facts.

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But if government could, in some case, my flat earth hypothetical, build out a record that says the amount of flat earth commentary, no matter what we say, what we do, what we post,

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is suffocating, drowning our comment threads.

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And it's just volume.

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We're just banning the volume words.

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If it was round earth, we would ban that too.

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That would be OK.

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I get that you don't think that's the record in this case.

[00:12:42] Speaker 04:
But I don't think that would be OK, Your Honor, using keyword blocking.

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And I think there's a difference here between whether or not the government has a legitimate motive, has a legitimate reason to moderate or regulate that speech in some way versus the tool that it's used in this case.

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Right.

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Because in this case, the government itself references animal testing and it does so with regularity.

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but it prohibits commenters from raising concerns and criticism of animal testing, even on those very posts, right?

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It's not a question of a post-by-post analysis of what might be on-topic or off-topic.

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The NIH has treated... My hypothetical about the gymnasium, there's going to be people there.

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I mean, amongst those, and maybe all eight million people,

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I'd be very interested in talking about the same topics that other groups are talking about.

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Those other groups simply are not causing the system to break down in the way that the 8 million member group would.

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That's right.

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And I think that analogy.

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So if they had a record that showed that these keywords reflect sort of the internet equivalent of the 8 million member group,

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so that everything just stops working in the common thread, then it would be OK.

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But that's simply a record that hasn't been developed yet.

[00:14:00] Speaker 04:
Well, I think it's both the fact that there isn't evidence of that in the record and the fact that this is so different from the kind of physical analogy that you've raised, Your Honor.

[00:14:08] Speaker 04:
That's because in the physical world, I think the analogy would have to be,

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That you have an event in which a lot of people are bringing up concerns right about flatter and in a physical world you might kick those people out prevent them from speaking further what's happening here looks very different what's happening here would be equivalent to I think NASA saying at this event in these flat earthers are raising comments that we think are relevant and we think they're preventing other people from speaking so we're going to.

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go and purge every mention of Flat Earth from every public event we've ever had.

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And in the future, when we talk about the Flat Earth controversy ourselves, we will prohibit people from bringing up those concerns.

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That's the effect that keyword blocking has here.

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And that dramatic over-inclusion demonstrates that there is such a poor fit between what the government says it's doing, which is invoking an off-topic rule, and what it's actually doing, which is blocking this criticism, regardless of whether it is on or off-topic.

[00:15:06] Speaker 04:
that an inference of viewpoint is.

[00:15:08] Speaker 01:
Sorry, I just want to make sure I understand your position.

[00:15:10] Speaker 01:
So with the gymnasium hypothetical, I thought your position would be that if the policy came out, no more religious groups, but that's.

[00:15:21] Speaker 01:
Because it's facially viewpoint-based, that is unconstitutional, right?

[00:15:25] Speaker 01:
And instead, what the school would have to do is come up with a facially neutral policy that said something like, groups that bring 8 million people are not allowed.

[00:15:34] Speaker 01:
And then you'd have an inquiry about intent, correct?

[00:15:39] Speaker 04:
Well, I think then you'd have an inquiry about the justification for that rule, no groups of x many members allowed.

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And you'd want to make sure.

[00:15:47] Speaker 01:
But the threshold issue is, is the policy facially neutral?

[00:15:51] Speaker 01:
Yes, because I mean flat Earth.

[00:15:54] Speaker 01:
If the big problem is everyone saying the Earth is flat over and over and over again is it your position that if the agency wants to do something about that.

[00:16:04] Speaker 01:
But they need to do is ban discussion of the subject of I guess the shape of the Earth.

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But what they cannot do is say we're going to ban this one viewpoint on that otherwise included subject.

[00:16:17] Speaker 04:
Yes, I think it's very clear that the agency cannot ban one viewpoint on an otherwise included subject.

[00:16:22] Speaker 02:
If they have a list of 10 groups that always come up with 10, 8 million people, they've done it many times.

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They happen to all be religion groups in your Lambs Chapel world.

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Are they allowed to ban those 10 groups?

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I think it would be very difficult to constitutionally ban those groups forevermore.

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And that's the way keyword blocking functions in this case.

[00:16:50] Speaker 04:
I think the case really could.

[00:16:51] Speaker 01:
Can I just return to the?

[00:16:54] Speaker 04:
Yes, Your Honor.

[00:16:54] Speaker 01:
Because I want to know if I understand what the point is correctly.

[00:16:58] Speaker 01:
If that policy said we are banning going forward any group that has been here five or more times and caused XYZ problems, that would then be a facially viewpoint neutral.

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policy, right?

[00:17:13] Speaker 04:
Yes, exactly, Your Honor.

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And so I think here, this court's consideration could start and stop with the fact that the words blocked themselves of interview point.

[00:17:22] Speaker 04:
But digging in even further, I think the record makes clear that there is discrimination because of the way that it functions to prohibit perspectives on otherwise include subjects, things like the development of the COVID-19 vaccine,

[00:17:34] Speaker 04:
things like the studies relying on animal testing that the agency itself brings up.

[00:17:40] Speaker 01:
It seems like just basically the use of keyword filters, if your view of the law is right, is extremely difficult.

[00:17:47] Speaker 01:
Because it sounds like to have a facially neutral keyword policy, they just have to come up with some pro-animal testing commonly used words and block those as well so that they could claim what we're actually doing is blocking off the whole subject matter.

[00:18:04] Speaker 01:
And I think they would get up and say, that's just impossible, because we don't have the record of what words are associated with those types of views.

[00:18:16] Speaker 01:
And so we can't use keywords that are balanced on this issue.

[00:18:21] Speaker 01:
What's your response to that?

[00:18:22] Speaker 04:
I think the problem with keyword blocking as a means of enforcing an off topic rule is that it's totally untethered to that goal.

[00:18:30] Speaker 04:
Keyword blocking may be a useful moderation tool as a means of enforcing other type of speech limitations where context isn't required to determine whether speech is in or it's out.

[00:18:40] Speaker 04:
But because it can't do that function right now, as it's currently instantiated, keyword blocking applies to the whole page.

[00:18:47] Speaker 04:
It can't go post by post.

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And so there's no

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ability to use nuance in determining which subjects and which comments are includeable and which are not.

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So it is a very poor fit.

[00:18:56] Speaker 04:
I think it would be difficult to justify the use of keyword blocking as the sole means of enforcing an off-topic rule.

[00:19:03] Speaker 04:
And that's exactly what we have here, because there is no evidence in the record that even before the NIH felt that it had limited, especially limited, constraints due to the COVID-19 pandemic, there's no evidence that it ever used manual moderation

[00:19:17] Speaker 04:
against any other type of off topic speech.

[00:19:20] Speaker 04:
And we've pointed to several examples of other types of off topic speech.

[00:19:25] Speaker 04:
Off topic speech about COVID-19, for example, appears on 12 of the exhibits in this case, even where that is not raised at all in the past.

[00:19:32] Speaker 02:
Just to understand your answer, Judge Garcia, can they use keywords to try to filter out solicitations?

[00:19:41] Speaker 04:
I think that might be a circumstance in which keyword blocking could be used in a way that is more tailored to the goal at hand, right?

[00:19:51] Speaker 04:
Something like a profanity filter where the discussion doesn't really turn much on the actual context of the comment, but the inclusion of those particular words.

[00:20:00] Speaker 04:
What makes it such a poor fit here?

[00:20:02] Speaker 02:
Well, it includes this other comment guidelines include personal attacks of any kind.

[00:20:07] Speaker 02:
So if they filter out, if there's

[00:20:11] Speaker 02:
five people who are the objects of the worst vitriol in common threads across time and across the page.

[00:20:25] Speaker 02:
Can they ban comments about those five people?

[00:20:30] Speaker 02:
They might be able to do so.

[00:20:31] Speaker 02:
That is not what the government is arguing.

[00:20:34] Speaker 02:
I'm asking your position.

[00:20:36] Speaker 02:
So, because you've mentioned a couple of researchers, and they've banned those names.

[00:20:41] Speaker 02:
I hear that those two there's two.

[00:20:45] Speaker 02:
Sorry, get the names of them.

[00:20:47] Speaker 02:
Harlow and Suomi, Your Honor.

[00:20:49] Speaker 02:
Harlow and Suomi, yes.

[00:20:51] Speaker 02:
So that's okay.

[00:20:53] Speaker 02:
If that, again, there's a lot of factual development here that's missing.

[00:20:58] Speaker 02:
If they did that under, not under off topic, but under personal attacks of any kind, they can use keywords for that.

[00:21:07] Speaker 02:
Well, Your Honor, I... It could be overkill, but...

[00:21:10] Speaker 04:
I think keyword blocking would be more tailored to the government's goal.

[00:21:14] Speaker 04:
I'm not sure whether it would be constitutional though, because it would.

[00:21:17] Speaker 02:
I mean, that's what I'm asking you is whether, is the implication of your argument that keyword blocking just can't be done unless it's for, you know, was it George Carlin's 10 dirty words or something like that?

[00:21:30] Speaker 04:
Yes, I think keyword blocking by itself, as the tool is currently available to users, can only be used in very limited ways.

[00:21:38] Speaker 04:
It might be with enough of a record that banning certain people who are exclusively the targets of abusive language, that might be constitutional.

[00:21:46] Speaker 04:
I think that would really matter with the factual development.

[00:21:50] Speaker 04:
Are you challenging?

[00:21:51] Speaker 02:
Again, you also sought summary judgment on this record, so I'm not sure it's... That's right, Your Honor.

[00:21:57] Speaker 02:
So do you challenge or not the use of inclusion of Swami and Harlow, at least on the Facebook?

[00:22:04] Speaker 04:
Yes, we do, Your Honor, because there is no evidence that the NIH blocked those terms because there were comments that violated its prohibition on personal attacks.

[00:22:15] Speaker 02:
And there's no evidence that would support... So if they were to say that, though, then it would be... They just didn't say the right thing, is your view?

[00:22:19] Speaker 02:
If they said that, it would be fine?

[00:22:21] Speaker 02:
Or do you still think it wouldn't be fine?

[00:22:22] Speaker 04:
No, they would need to say it, and they would need to prove it, Your Honor.

[00:22:24] Speaker 04:
And there's no evidence that there have been personal attacks against these researchers that would allow the NIH

[00:22:30] Speaker 04:
to enact a prior restraint on anyone mentioning those names.

[00:22:34] Speaker 02:
But again, I think- I know prior restraint language is great.

[00:22:37] Speaker 02:
You love that language when you're on the side of the First Amendment case.

[00:22:40] Speaker 02:
But this is a limited public forum here, and we're talking about what the rules of dialogue are that they can set.

[00:22:46] Speaker 02:
And every rule of dialogue, I mean, everything in the NIH Common Guidelines is a prior restraint.

[00:22:52] Speaker 02:
Well, Your Honor, I want to make- Everything is, right?

[00:22:54] Speaker 02:
Obscene language is a banning obscene language or vulgar language.

[00:23:00] Speaker 02:
That's a prior restraint, right?

[00:23:02] Speaker 02:
Well, Your Honor, I want to make two points here.

[00:23:04] Speaker 02:
And the first- Banning speech that has racist connotations is a prior restraint.

[00:23:10] Speaker 02:
I just, I'm just, right?

[00:23:11] Speaker 02:
Well, Your Honor, I think the question- That is a prior restraint.

[00:23:15] Speaker 04:
I think the question is how those rules are enforced.

[00:23:17] Speaker 02:
Okay, but it's not that they're prior restraints when we're dealing with a limited public forum like this.

[00:23:21] Speaker 04:
Well, again, your honor, I do want to make two points.

[00:23:23] Speaker 04:
The first is that we've argued that this is an open public forum and that's because the agency has not sufficiently limited the forum to on topic speech.

[00:23:31] Speaker 04:
All it does is ban these keywords that relate to criticism of animal testing.

[00:23:35] Speaker 04:
It doesn't enforce that guideline or really any of its other guidelines against any other type of off topic images or videos showing up.

[00:23:42] Speaker 04:
Yes, Your Honor.

[00:23:43] Speaker 04:
If you look at exhibit one in the record, you will see many images.

[00:23:47] Speaker 04:
You will also see external links.

[00:23:48] Speaker 02:
And one thing, I was a little confused.

[00:23:50] Speaker 02:
Maybe you can clarify me on the appendix.

[00:23:53] Speaker 02:
Is all of the appendix before keywords were being used or since they've been being used?

[00:23:58] Speaker 04:
No, Your Honor.

[00:23:59] Speaker 04:
These exhibits, most of them come from before.

[00:24:02] Speaker 04:
I'm sorry.

[00:24:03] Speaker 04:
Most of them involve the NIH blocking, the NIH page as it currently exists.

[00:24:09] Speaker 04:
So with keyword blocking in place.

[00:24:12] Speaker 04:
But I do want to get to, I think, the heart of your concern about the difference between all of the rules that the NIH has and the keyword blocking an issue in this case.

[00:24:21] Speaker 04:
So we're not objecting to the NIH's comment guidelines, but it's important to note that they don't enforce those guidelines against speech generally.

[00:24:29] Speaker 04:
All they do is have keyword blocking.

[00:24:31] Speaker 04:
And what makes keyword blocking different from a rule that says no vulgar speech is that typically, in the normal course, you might have a comment that includes some vulgarity.

[00:24:41] Speaker 04:
And someone might see it and take it down and possibly write you a note.

[00:24:44] Speaker 04:
The speech is out there.

[00:24:46] Speaker 04:
What makes keyword blocking so different is that it's automatically hidden.

[00:24:49] Speaker 04:
It's hidden with no notice to the commenter.

[00:24:52] Speaker 04:
And there's no notice to the people going to the comment thread.

[00:24:55] Speaker 04:
They believe this is an open thread for discussion on all topics.

[00:24:58] Speaker 04:
If you look at things like Exhibit 1, Exhibit 10, Exhibit 38, you'll see a kind of freewheeling discussion on lots of different topics.

[00:25:06] Speaker 02:
Does this notice to the speaker something they choose or is that just default how keywords work on Facebook and Instagram, keyword blocks work?

[00:25:17] Speaker 04:
Well, that's the default, but the NIH could choose to notify the public and notify the speakers.

[00:25:22] Speaker 02:
This is my technology limitations.

[00:25:25] Speaker 02:
Is there some they can toggle off when they use keywords, or are you saying that they would have to manually notify everybody?

[00:25:32] Speaker 02:
Someone would have to monitor every keyword catch and then manually notify somebody?

[00:25:37] Speaker 02:
Well, that is one option, but I think the bigger... Is there a technological... If one thinks this isn't feasible... I don't think... Resource limitations.

[00:25:47] Speaker 04:
I don't think there's any technological fix at this moment.

[00:25:51] Speaker 02:
Facebook, Instagram issue that people don't get notice of this.

[00:25:55] Speaker 04:
I don't think so, your honor, because the NIH doesn't even inform people going to its comment threads that it's using keyword blocking at all.

[00:26:02] Speaker 04:
And that would be a essentially cost free way of providing notice to people of how the speech environment has changed.

[00:26:09] Speaker 04:
It would inform them of what is going on.

[00:26:11] Speaker 04:
But right now, we have what looks to be an open forum with the government in the background kind of plucking out disfavored speech.

[00:26:18] Speaker 02:
The common guidelines are now linked to the Facebook and Instagram pages.

[00:26:23] Speaker 02:
So people have noticed that if that's what they do, they may get blocked.

[00:26:27] Speaker 04:
But the common guidelines don't say that the NIH is using keyword blocking against this type of speech.

[00:26:32] Speaker 04:
And that's the sort of distortion that I think is so problematic here, that people are going to these threads without understanding that criticism of animal testing is being pulled out of discussion, even when animal testing is raised by the NIH itself.

[00:26:46] Speaker 04:
I mean, I think that's just a core flaw of the NIH's keyword blocking scheme that really can't be overcome, even if it points to additional examples where there is a high volume of speech about animal testing.

[00:26:58] Speaker 01:
Just one last question in the in their brief the government relied heavily on cases like Madison and I guess the simplified version of why is that they say the effect of that restriction was just to limit the speech of anti-abortion protesters and so to hear it's OK to limit.

[00:27:14] Speaker 01:
just this side of the debate because that's where the problem's been demonstrated.

[00:27:18] Speaker 01:
Could you just give us your hopefully brief distinction of that case?

[00:27:21] Speaker 04:
Yes and I know my time has expired so I will try to keep this with three just brief points.

[00:27:26] Speaker 04:
The first is that Madsen arose from an injunction that was targeted against a particular group of protesters who had already interfered with access to the clinic

[00:27:34] Speaker 04:
It did not apply to all people who believed abortion was wrong.

[00:27:38] Speaker 04:
The second is the way in which the court in that case actually effectuated the goal of prohibiting the speech.

[00:27:48] Speaker 04:
It did so through content neutral means.

[00:27:50] Speaker 04:
It mostly relied on the volume and the location of the speakers.

[00:27:54] Speaker 04:
It did not ban words like

[00:27:58] Speaker 04:
pro-life.

[00:27:59] Speaker 04:
It did not ban words like unborn.

[00:28:00] Speaker 04:
So it did not target in a viewpoint discriminatory way.

[00:28:04] Speaker 04:
And the third reason is that even with that content neutral injunction, the Supreme Court narrowed it further to ensure that as much speech as possible could occur as long as it wasn't overriding the state's interest in allowing patients to receive medical treatments without undue anxiety and negative health effects.

[00:28:21] Speaker 04:
That sort of tailoring is totally absent in this case, where the NIH freely admits that it blocks on-topic speech.

[00:28:27] Speaker 04:
It has absolutely no justification for suppressing.

[00:28:31] Speaker 00:
Thank you.

[00:28:32] Speaker 04:
Thank you, Your Honors.

[00:28:47] Speaker 05:
Good morning, Your Honor.

[00:28:47] Speaker 05:
Jennifer Utrecht on behalf of the NIH.

[00:28:50] Speaker 05:
An issue in this case is NIH's efforts to address the seemingly coordinated campaign to flood its social media pages with off-topic commentary related to animal testing.

[00:28:59] Speaker 05:
The plaintiffs object here that those efforts have successfully stymied their attempts to, for example, make off-topic comments on posts about Public Service Recognition Week.

[00:29:08] Speaker 02:
Can you define or tell me where the record defines off-topic?

[00:29:13] Speaker 05:
So off-topic is a term that I think is

[00:29:17] Speaker 05:
commonly understood.

[00:29:19] Speaker 05:
It's used in policies.

[00:29:21] Speaker 02:
It's not commonly understood by me in this context at all.

[00:29:23] Speaker 02:
Does it mean off topic for NIH page as a whole or for each particular post?

[00:29:28] Speaker 05:
So I believe the stipulation refers to the policy being, I'm sorry,

[00:29:34] Speaker 05:
has to be on topic to the posts and the post.

[00:29:37] Speaker 02:
That's in your stipulate lawyer stipulation, but there's no, I haven't seen any evidence of any actual NIH definition or guidelines or anything that define.

[00:29:48] Speaker 05:
There's nothing in the topic means there's nothing in the comment guidelines that define what topic means.

[00:29:53] Speaker 05:
But as the district court here found off topic is a term that although people might disagree on the margins about what is or is not on topic.

[00:30:00] Speaker 05:
There is a pretty general understanding, at least for the majority of things, of what is or is not off topic.

[00:30:07] Speaker 02:
Is the topic limited to the narrow subject matter of the posting, or is it that this is the government posting?

[00:30:15] Speaker 02:
Government produced this information a certain way.

[00:30:18] Speaker 02:
Is that part of the topic?

[00:30:20] Speaker 05:
The topic should be understood, of course, in light of the purpose of the forum.

[00:30:23] Speaker 05:
The then age of social media pages are used to

[00:30:28] Speaker 05:
disseminate information about public health resources for people to address public health concerns as a talk about the government.

[00:30:35] Speaker 02:
If someone's criticizing how they came to have that information, isn't that a legitimate topic in our country?

[00:30:42] Speaker 05:
It's not that it's not a legitimate topic, Your Honor.

[00:30:44] Speaker 05:
It's that what's happening here is that the vast majority, the overwhelming majority of comments about animal testing are not on posts discussing, you know, tests or research about animal testing.

[00:30:57] Speaker 05:
They're on

[00:30:58] Speaker 05:
posts about public service week, posts about caregiving resources for individuals with Alzheimer's.

[00:31:03] Speaker 05:
There's really no dispute.

[00:31:05] Speaker 01:
There's been no similar in the brief.

[00:31:08] Speaker 01:
There's no consideration of what NIH's posts are actually about in the stipulated record.

[00:31:14] Speaker 01:
So just one example.

[00:31:16] Speaker 01:
This is JA203.

[00:31:18] Speaker 01:
This is the zebrafish eye picture.

[00:31:21] Speaker 01:
It's, I suppose, quite literally a post about animal testing.

[00:31:25] Speaker 01:
And is it your position that it's common sense that criticism of animal testing is off topic?

[00:31:33] Speaker 05:
No, Your Honor.

[00:31:34] Speaker 05:
So I think that's the effect.

[00:31:36] Speaker 05:
I think we have agreed.

[00:31:37] Speaker 05:
We agree that keyword filters are an imperfect tool and that if you are using them to screen for off topic commentary in a situation like this where there is a huge swath of comments that are off topic,

[00:31:52] Speaker 05:
it's going to occasionally capture comments that are on topic.

[00:31:55] Speaker 05:
We're not disputing that.

[00:31:57] Speaker 05:
That is an inevitable result of the use of keyword filters.

[00:32:02] Speaker 05:
But unless this court is going to say that keyword filters are per se unreasonable because they have to be tailored and never capture on-topic comments, then the record here does show that these keyword filters were chosen to

[00:32:17] Speaker 05:
address a significant problem, which was this coordinated effort to flood NIH's pages.

[00:32:23] Speaker 01:
It's more of a framing point to back up.

[00:32:27] Speaker 01:
Do you agree that if these keywords, we think they're facially viewpoint-based, then the government's intent and justification doesn't matter?

[00:32:40] Speaker 05:
So I would dispute the first premise that they're not viewpoint-based.

[00:32:48] Speaker 05:
And I think that's always what... Absolutely understand that.

[00:32:51] Speaker 01:
But if assumed they are, we think on their face they are viewpoint-based, then you'd agree, right, that the intent, the justification, everything else is irrelevant.

[00:33:01] Speaker 05:
If the terms are on their face viewpoint-based and were not added for the purpose of viewpoint, I mean, I think that does matter, Your Honor, because of course, if what is happening is there is an empirical flood of, for example, one word post that says stop animal testing.

[00:33:20] Speaker 05:
And that comment is, or that term is filtered because hashtag stop animal testing is posted hundreds of times on posts that are not about animal testing at all.

[00:33:30] Speaker 05:
then what's being done there is we are filtering for off-topic commentary, not for that particular term, not for what that term reflects.

[00:33:41] Speaker 05:
And the fact that it might have an effect on a particular type of speech because the people who are repeatedly violating the off-topic policy all have a particular viewpoint, that in and of itself isn't viewpoint discrimination if there is a viewpoint neutral reason for what the government has done.

[00:33:57] Speaker 05:
The plaintiffs have cited other cases.

[00:34:00] Speaker 01:
The issue, the difficulty, I think, is that what the cases say is if you have an otherwise includable subject matter, which here I think would be the subject matter of animal testing, in the same way in Lamb's Chapel the subject matter was views on child rearing, you cannot have a policy that bans one view on the otherwise includable subject.

[00:34:25] Speaker 01:
And it is hard to look at these terms and not conclude that there is a broad-based effort, or effort's the wrong word.

[00:34:33] Speaker 01:
The effect is to screen out anti-animal testing views.

[00:34:37] Speaker 05:
So, Your Honor, two points to that.

[00:34:39] Speaker 05:
The first is, so using the term hashtag stop animal testing, for example, I am not sure what the equivalent is on the opposite side to filter for.

[00:34:50] Speaker 05:
To my knowledge, there isn't a hashtag that's used for

[00:34:56] Speaker 05:
for the opposite side of the debate.

[00:34:58] Speaker 05:
And a second point is, if there was a hashtag that was used frequently by people who supported animal testing, and that was flooding the comments section, NIH would also filter for that.

[00:35:11] Speaker 05:
And the record here doesn't, because of that, the record here doesn't support the inference that plaintiffs have asked this court to draw, which is that because

[00:35:21] Speaker 05:
we have picked the terms we have, that that in and of itself reflects viewpoint discrimination.

[00:35:27] Speaker 01:
I think what they're asking us to conclude is that the natural effect of these keyword filters is to filter out one viewpoint on this allowable subject matter and not the other.

[00:35:37] Speaker 01:
And I am very sympathetic to the administrative convenience points, but I cannot find a case that says viewpoint discrimination is justified when the administrative burdens of blocking both viewpoints are too high.

[00:35:52] Speaker 05:
So I think then it would be helpful to say the way that

[00:35:57] Speaker 05:
Viewpoint discrimination is typically analyzed as we look to whether the government has asserted a viewpoint neutral reason for what it has done.

[00:36:03] Speaker 05:
We have.

[00:36:04] Speaker 05:
And then plaintiffs have asked, despite that viewpoint neutral reason, for this court to infer, nevertheless, to infer viewpoint discrimination because of the surrounding circumstances, because the terms that we have picked, despite being picked because they were a lion's share of the off-topic commentary,

[00:36:23] Speaker 05:
were picked to suppress their viewpoint.

[00:36:26] Speaker 05:
And the evidence, the totality of the evidence here, as the district court found, doesn't support that inference in particular because plaintiffs haven't identified any type of comment that is similarly situated.

[00:36:38] Speaker 05:
I know there's been an extended discussion here in this courtroom about what the record does and doesn't support in terms of how common off-topic commentary regarding animal testing was.

[00:36:47] Speaker 05:
But I would point this, Your Honors,

[00:36:50] Speaker 05:
the district court's opinion on page 26, where it notes that the plaintiffs didn't meaningfully dispute the factual premise of our argument, which is that off-topic comments regarding animal testing were a huge majority, the lion's share of off-topic comments on NIH's pages.

[00:37:06] Speaker 05:
If that had been something that was disputed.

[00:37:08] Speaker 02:
Do you meaningfully document the sweating problem?

[00:37:11] Speaker 05:
So there are a number of illustrative examples that are highlighted both in our brief and the district court's opinion.

[00:37:19] Speaker 05:
Exhibits 14, 16, 17, 18, they all illustrate dozens and dozens of, you know, sometimes one word, sometimes two words comments saying puppy killers or hashtag something.

[00:37:30] Speaker 02:
So dozens and dozens, so 24, 36 posts on a comment thread is.

[00:37:36] Speaker 05:
Well, so for example, on the Alzheimer's posts on exhibit 17, I believe there were 500 and something total comments and more than 100 were related to.

[00:37:45] Speaker 02:
That is the government's definition of hijacking the comment thread.

[00:37:50] Speaker 05:
And so, Your Honor, that is an illustrative example of what NIH perceived.

[00:38:00] Speaker 02:
Your task is that dozens or a fifth are sufficient to overwhelm the comment thread.

[00:38:11] Speaker 02:
That's the line the government's adopting.

[00:38:15] Speaker 05:
But it's not one post, Your Honor.

[00:38:17] Speaker 05:
It's numerous posts.

[00:38:19] Speaker 05:
There are several examples in the record.

[00:38:20] Speaker 05:
And if plaintiffs had meaningfully disputed... Well, they show up on a lot of posts.

[00:38:23] Speaker 02:
But if they aren't suffocating those posts, which I would have thought would be an 80 to 90% domination, then maybe there's just a lot of people who care about this.

[00:38:35] Speaker 05:
There are other examples, Your Honor.

[00:38:36] Speaker 02:
For example, one individual... What's the best flooding example you have?

[00:38:40] Speaker 05:
I would direct your honor to the Alzheimer's post where there are, I don't know the exact number of puppy killer comments that are on that, but it is a post about providing resources to individuals who are caring for family members and loved ones with Alzheimer's, which has nothing to do with animal testing at all.

[00:39:00] Speaker 05:
And those resources that NIH is sharing and providing a space for people to talk about those resources and their own experience are being drowned out by

[00:39:11] Speaker 05:
a substantial portion of comments that aren't about the post at all.

[00:39:15] Speaker 05:
No, please.

[00:39:17] Speaker 02:
I'm just not sure what ground-out means in comment threads on the internet.

[00:39:22] Speaker 02:
So everyone else can still comment.

[00:39:23] Speaker 02:
They can skip past things and scroll quickly.

[00:39:26] Speaker 02:
It doesn't stop anybody else from commenting.

[00:39:29] Speaker 02:
So what is this?

[00:39:31] Speaker 05:
Well, so there are other examples, Your Honor.

[00:39:33] Speaker 05:
In the stipulation, it notes that individuals have complained because they've missed NIH

[00:39:40] Speaker 02:
Sorry, they have missed attempts, tweets from NIH about resources because there were... And the common threads do not obscure or affect in any way access to the NIH posts, the substantive posts themselves.

[00:39:55] Speaker 02:
The comments, I don't know if NIH joins in in the common threads.

[00:40:00] Speaker 02:
I may have seen one where maybe somebody looks like somebody did, but generally the common threads are just people talking to other people.

[00:40:06] Speaker 02:
So I'm not quite sure how

[00:40:11] Speaker 02:
The comment threads are going to interfere with access to NIH's speech information.

[00:40:18] Speaker 05:
It is interfering with the ability of

[00:40:21] Speaker 05:
commenters to discuss the topic of the post with each other, to ask NIH questions about the post.

[00:40:27] Speaker 02:
Do you think these threads are somehow different than threads elsewhere on the internet that believe almost any subject matter anywhere?

[00:40:36] Speaker 02:
There's going to be people there spewing in garbage.

[00:40:39] Speaker 05:
So I think it might be helpful, Your Honor, excepting the premise that this is a limited forum, I think it might be helpful to take

[00:40:48] Speaker 05:
us out of the internet world where moderation is understandably difficult.

[00:40:52] Speaker 05:
If, for example, someone were hosting a town hall.

[00:40:55] Speaker 02:
No, I don't think it's helpful to go there.

[00:40:56] Speaker 02:
I mean, I know you want to.

[00:40:58] Speaker 02:
But if you want to say town hall, it's like the government gets there, makes its presentation, and then says, OK, we'll be over here if you have questions.

[00:41:10] Speaker 02:
But otherwise, the rest of you all talk.

[00:41:12] Speaker 02:
That's what the comment thread is.

[00:41:13] Speaker 02:
The rest of you all talk.

[00:41:14] Speaker 02:
We'll be over here if you have questions.

[00:41:15] Speaker 02:
But the rest of you can talk about whatever you want.

[00:41:17] Speaker 05:
Well, the rest of you all talk within the confines of our comment guidelines, which

[00:41:22] Speaker 05:
specifically say the comments have to be on topic, among other restrictions.

[00:41:29] Speaker 02:
You talk about this as a volume problem, which is not the same thing as a topic problem.

[00:41:35] Speaker 02:
Volume and topic are very different.

[00:41:38] Speaker 02:
And what I keep hearing is they're flooding it so people can't get other information.

[00:41:43] Speaker 02:
So maybe you think it's not relevant to Alzheimer's, but if they see Alzheimer's and I go, I know how the NIH does Alzheimer's research.

[00:41:50] Speaker 02:
And so I want to let people know, don't be thinking the government's nicey-nicey here when it says, here's some advice to you as you deal with Alzheimer's for someone in your family.

[00:41:59] Speaker 02:
We want you to know what this government is doing when it's dealing with Alzheimer's.

[00:42:03] Speaker 02:
Now, people have different views on that.

[00:42:06] Speaker 05:
So your honor, I think it should be unobjectionable that if NIH were to say, we want to provide a space for individuals to talk about our public health research, we do not want this space to devolve into a discussion of the ethics of animal testing.

[00:42:29] Speaker 05:
And so that topic is off limits.

[00:42:32] Speaker 05:
That would be appropriate.

[00:42:33] Speaker 02:
You think they can categorically make animal testing banned anywhere on the NIH website?

[00:42:39] Speaker 02:
In a limited public forum.

[00:42:41] Speaker 02:
Even when it's on topic, if you post about animal testing.

[00:42:45] Speaker 05:
That would be a content-based restriction, and I think there's a- No, no, no.

[00:42:49] Speaker 02:
This is the exact same website, and let's say once every six months, there's a post on there that talks about experiments that were done on animals or new rules about improving conditions for animals in NIH testing facilities.

[00:43:02] Speaker 02:
But you've got this key word.

[00:43:04] Speaker 02:
Talk in here.

[00:43:06] Speaker 05:
So if there were a policy that clearly prohibited discussion of the ethics of animal testing, if NIH were to say, for example, there has been a documented problem of all of our attempts to discuss public health and efforts to address human health, that devolving into discussion about animal testing, and that's not what we're hosting this page for.

[00:43:30] Speaker 05:
There are other places for people to talk to NIH and others about the ethics of animal testing, and that is not what this page is for.

[00:43:36] Speaker 05:
That would be a content-based restriction, and this court would address whether that was reasonable or not.

[00:43:40] Speaker 05:
What's happened here is not that different.

[00:43:43] Speaker 05:
The vast majority of NIH posts do not discuss animal testing in any way.

[00:43:48] Speaker 05:
There might be a few examples the plaintiff has pointed to that reference animal testing, but overall, they are posts about human health.

[00:43:55] Speaker 02:
There's a fact-finding.

[00:43:56] Speaker 02:
that the vast majority of your posts do not implicate animal testing.

[00:44:00] Speaker 05:
So the relevant fact finding here is that the district court found that no one disputed that the overwhelming lion's majority share of off-topic comments on NIH's page are off-topic comments about animal testing.

[00:44:12] Speaker 02:
That is just begging the very question.

[00:44:14] Speaker 02:
I just asked about whether animal testing is off topic, because it's one thing to say they're only real on topic if the top if what the NIH post itself is is animal testing.

[00:44:25] Speaker 02:
But in fact, it is newly discovered treatment for acts and background information lets people to know that the way that was discovered was through animal testing.

[00:44:37] Speaker 02:
And someone wants people to know, don't get excited about this.

[00:44:40] Speaker 02:
Understand the price that was paid for this development, if that was the speech they wanted to do.

[00:44:45] Speaker 02:
That doesn't feel off-topic to me, but it sounds like you're putting that in the off-topic category.

[00:44:53] Speaker 05:
Looking at the exhibits that we have before us, those exhibits aren't reflective of that sort of commentary.

[00:45:03] Speaker 05:
The majority of these exhibits make no attempt beyond topic.

[00:45:06] Speaker 05:
There are one word, sometimes two word posts on things that are

[00:45:11] Speaker 05:
for example, caregiving resources for people with Alzheimer's.

[00:45:14] Speaker 05:
So I don't think the question is about the comments.

[00:45:15] Speaker 01:
It's about NIH's posts.

[00:45:18] Speaker 01:
And what PETA says is that over a third of the exhibits on their face seem to be, at least arguably, the kind of posts where a comment about animal testing would be on topic.

[00:45:33] Speaker 05:
So I see four, possibly five examples the plaintiff have cited in the exhibits.

[00:45:39] Speaker 05:
Notably, I think there was only one, maybe two comments that they've actually identified that were on any of those posts.

[00:45:49] Speaker 05:
Their complaint says that they were frustrated by their ability to post on public service recognition week and diversity in science.

[00:45:57] Speaker 05:
I mean, they've admitted that they want to use posts that no one has argued have anything to do with animal testing as a place for them to advocate for animal testing.

[00:46:07] Speaker 02:
Where have you shown the flooding?

[00:46:09] Speaker 02:
I'm still trying to understand that.

[00:46:11] Speaker 02:
It's to say what they haven't shown, but you have a list of words here that's at least eyebrow-raising.

[00:46:17] Speaker 02:
And your argument is you're equating flooding the comments with being off topic without any factual evidence of flooding.

[00:46:29] Speaker 02:
At least what you've given me, I would be just wrong.

[00:46:32] Speaker 02:
I would not consider dozens.

[00:46:34] Speaker 02:
On internet comment threads, if you can go on forever to be flooding, I wouldn't consider one out of five flooding, given that people have abilities to search through these things.

[00:46:45] Speaker 05:
So, Your Honor, to be clear, the other off topic posts that don't have to do with animal testing also violate the guidelines.

[00:46:53] Speaker 05:
The problem is that there is nothing else that exists in this universe that repeats the same sorts of words.

[00:46:59] Speaker 05:
that would make them suitable for filtering.

[00:47:01] Speaker 05:
And that's why, so flooding has to be understood in that sense.

[00:47:05] Speaker 05:
The reason why NIH has picked the words it has is because these comments share a common theme, they share the common words.

[00:47:12] Speaker 05:
And when I say flooding, I mean, it's a group of comments, it's a concerted effort that we can target through filtering, whereas- The word test, the word test, categorically off topic for NIH.

[00:47:28] Speaker 05:
I'm not, I don't think that's on a key word.

[00:47:29] Speaker 05:
It has never been our position.

[00:47:31] Speaker 05:
The word test is categorically off topic.

[00:47:34] Speaker 02:
You're blocking any post that has that word.

[00:47:37] Speaker 05:
It has been our, it has been our position that the word test was frequently recurrently used in comments that were off topic.

[00:47:45] Speaker 02:
And that is a COVID test.

[00:47:49] Speaker 05:
In fact, that would probably be limited.

[00:47:51] Speaker 05:
I'm sorry, a comment that said COVID tests would also be filtered.

[00:47:55] Speaker 02:
Yes, sir.

[00:47:56] Speaker 02:
I don't know what I'm asking you, but you're doing the inundation argument here as a record evidence that test is used so overwhelmingly more by those who support or those who oppose animal testing than those who in 2020, 2021 wanted to ask about COVID tests.

[00:48:18] Speaker 05:
So the stipulation doesn't say when the filters were first adopted.

[00:48:21] Speaker 05:
It does say.

[00:48:24] Speaker 02:
And they're showing really the test.

[00:48:26] Speaker 02:
What is the evidence that test is overwhelmingly used in an off topic rather than on topic postings for NIH?

[00:48:40] Speaker 05:
The exhibits are what the exhibits are.

[00:48:42] Speaker 05:
And I recognize that I keep... The exhibits are what they are.

[00:48:46] Speaker 02:
I'm going through your keyword list here.

[00:48:48] Speaker 02:
Right.

[00:48:50] Speaker 02:
And I'm asking, is there any fact... What is the factual basis for a facility like NIH to say, we can't let anybody post a comment that has the word test in it?

[00:49:05] Speaker 05:
The rationale is the same as it is for all of the other filters that in NIH's experience, all of the terms in the filtered lists, including the ones that plaintiff does not challenge, were terms that were recurrently used in off-topic commentary.

[00:49:20] Speaker 05:
And when we're talking about a limited public forum- There's no record evidence of what recurrent meant.

[00:49:26] Speaker 02:
Is there any concrete?

[00:49:27] Speaker 05:
We don't have, you know, numbers.

[00:49:29] Speaker 05:
No, it's not in the stipulation that was not discovered in this case.

[00:49:33] Speaker 02:
If the government's theory here is not really off topic, but sort of suffocating volume, isn't that a fact question that just has to be established?

[00:49:43] Speaker 02:
So again.

[00:49:44] Speaker 02:
Or do you want to do you think we should decide it without having that information?

[00:49:51] Speaker 05:
I find the question of what the facts are to be a bit frustrating because of the way plaintiffs have chosen to litigate this case.

[00:50:00] Speaker 02:
The government is well on a joint stipulated record.

[00:50:03] Speaker 05:
If I may, Your Honor, the joint stipulation says on paragraph 46 that the parties will not unreasonably object if the government or the plaintiffs want to add additional exhibits in summary judgment based on

[00:50:19] Speaker 05:
and based on what's on NIH's pages.

[00:50:23] Speaker 05:
Our summary judgment briefing said that the reason we picked them is because animal testing comments constituted a lion's share of the off-topic commentary, that they were uniquely suited for filtering because they shared these common terms in NIH's experience, and that was not a point

[00:50:39] Speaker 05:
That factual premise was not something plaintiffs meaningfully disputed, so we didn't enter additional exhibits for that point.

[00:50:46] Speaker 05:
The way plaintiffs have instead chosen to litigate this is assume that factual premise, assume that they're the lion's share, and nevertheless, you should infer viewpoint discrimination based on those specific terms.

[00:51:00] Speaker 02:
Is one-fifth the lion's share?

[00:51:03] Speaker 05:
of a single category of off-topic comments.

[00:51:06] Speaker 05:
I mean, it's set for 25%.

[00:51:07] Speaker 02:
I don't mean by single category of off-topic comments.

[00:51:09] Speaker 02:
You said there was a thread in which about a fifth of them.

[00:51:13] Speaker 02:
I think it was the awesome numbers when you referenced.

[00:51:16] Speaker 05:
There is not another category of off-topic commentary that comes anywhere close to that.

[00:51:23] Speaker 05:
There's not anything where there's common terms used discussing a different topic.

[00:51:27] Speaker 05:
There just isn't, because there isn't a concerted effort

[00:51:33] Speaker 05:
flood the pages with these kinds of commentary.

[00:51:36] Speaker 02:
I'm kind of surprised, honestly, maybe I just shouldn't speculate like this, that certainly through the COVID era that anti-vaccine posts were not pervasive.

[00:51:50] Speaker 05:
So there are certainly exhibits in the joint stipulation where there are commenters who say things that reflect certain viewpoint on vaccinations.

[00:52:00] Speaker 05:
They're usually on posts about vaccinations.

[00:52:03] Speaker 05:
or about antiviral treatment for COVID-19.

[00:52:06] Speaker 05:
And they're not single word comments that are multiple people are posting the same thing.

[00:52:11] Speaker 02:
Dr. Fauci gives speech at X place.

[00:52:15] Speaker 02:
And the speech is a commencement speech encouraging people to go into public health.

[00:52:21] Speaker 02:
During the pandemic, people wouldn't have covered that with a lot of anti-phagy, anti-vaccine comments.

[00:52:28] Speaker 05:
I'm not going to take an empirical position on that one way or the other, Your Honor.

[00:52:33] Speaker 05:
I think what we have here is.

[00:52:34] Speaker 02:
At some level, NIH's position here is, this is a unique problem for NIH, because if, in fact,

[00:52:44] Speaker 02:
You had problems with anti-vaccine stuff showing up any time.

[00:52:48] Speaker 02:
Dr. Fauci was mentioned, COVID was mentioned, even if not talking about vaccines.

[00:52:54] Speaker 02:
And yet nothing was done, that would be a problem as well.

[00:52:58] Speaker 02:
And I understand some of the stipulated record here, but I don't think it's enough as summary judgment for a summary judgment brief by lawyers to say,

[00:53:07] Speaker 02:
There's a lion's share here that is overwhelming the comment spread, which are simply characterizations without any factual documentation.

[00:53:19] Speaker 05:
So two points, Your Honor.

[00:53:22] Speaker 05:
The first is our policy against off topic commentary is not a policy that

[00:53:29] Speaker 05:
Off topic commentary is permissible unless it overwhelms it is a policy that we don't want off topic commentary because of the threat of overwhelming.

[00:53:37] Speaker 05:
The reason that we have addressed these comments is because there are multiple users posting substantially the same thing sharing the same words.

[00:53:48] Speaker 05:
And those words are the ones that we're filtering for.

[00:53:51] Speaker 05:
And there's no evidence that that was true with respect to anything else.

[00:53:57] Speaker 05:
Even the exhibits that are critical of vaccinations, they don't have that same, here are multiple people posting substantially the same comment over and over and over again on a particular thread.

[00:54:09] Speaker 05:
And without that, there isn't a great basis for us to pick a filter to address that kind of off-topic commentary.

[00:54:19] Speaker 05:
the comments that led to the filters that were chosen, there is this commonality between multiple users posting substantially the same thing over and over and over again, which makes it uniquely suited to keyword filtering.

[00:54:30] Speaker 01:
Council, can I ask you a question?

[00:54:32] Speaker 01:
It seems like if we agree with you on a lot of the issues in this case, so it's not viewpoint discrimination, we agree with you on forum, the last question becomes, is this policy reasonable?

[00:54:43] Speaker 01:
And the policy being we're going to ban off-topic posts.

[00:54:47] Speaker 01:
And one of the requirements for that is just that it be workable, subject to consistent application, which I think in a practical way just means where most people understand what it means.

[00:54:59] Speaker 01:
And so I just want to understand, obviously, there are the, you say, few posts that are directly about animal testing.

[00:55:07] Speaker 01:
There's also a bucket of posts which are about the research of scientists who are known to conduct a lot of animal testing.

[00:55:17] Speaker 01:
And I guess I'd like to understand, would a comment, and there are several examples of this, saying,

[00:55:24] Speaker 01:
to stop animal testing.

[00:55:26] Speaker 01:
This guy does a lot of animal testing.

[00:55:28] Speaker 01:
Is that off topic?

[00:55:30] Speaker 05:
So I understand that plaintiffs disagree with us about what the topic of NIH's posts are.

[00:55:39] Speaker 05:
I think it's reasonable to assume that an agency that posts about public health, whose purpose is public health and sharing information about public health,

[00:55:53] Speaker 05:
is hosting the forum for the topic of the discussion of public health.

[00:55:57] Speaker 01:
And so I think that's a completely reasonable position.

[00:56:00] Speaker 01:
But sort of as you said, the other side is reasonable too.

[00:56:03] Speaker 01:
And it seems to me the problem in terms of the case law is that your guidelines don't explain.

[00:56:08] Speaker 01:
If your guidelines explain what you think off topic means, that might do something to remedy this problem.

[00:56:15] Speaker 01:
But right now it just says the word off topic.

[00:56:17] Speaker 01:
it's very difficult to know whether on this kind of post or a whole host of others, whether something is actually off topic if I'm someone who wants to post.

[00:56:27] Speaker 05:
Well, Your Honor, I would note that the term off topic is pretty regularly used in social media policies.

[00:56:35] Speaker 05:
It would be extraordinary to suggest that that's not the sort of thing that's capable of recent application.

[00:56:41] Speaker 05:
I appreciate

[00:56:46] Speaker 05:
the point that on the margins, there can be some debate about whether something is on topic or not.

[00:56:50] Speaker 05:
But at bottom, I think as long as NIH is not acting arbitrarily and deciding that its posts are about public health, and that's the sort of thing that would withstand First Amendment scrutiny under the limited public forum test.

[00:57:08] Speaker 02:
So I'm trying to also understand technology, how this works.

[00:57:11] Speaker 02:
So you say we're looking at common threads post by post.

[00:57:18] Speaker 02:
When NIH posts, I guess their tech person posts an article, is any judgment made at that time to turn on or off different keywords?

[00:57:29] Speaker 02:
Or is this list that we have in the record, J76, a static list?

[00:57:41] Speaker 02:
Put aside the changes that were made post litigation.

[00:57:45] Speaker 05:
I am not sure what is technologically possible.

[00:57:47] Speaker 05:
I have theories, but they're not in the stipulations, so I'm afraid of speculating.

[00:57:52] Speaker 02:
No, I'm just wondering what NIH does.

[00:57:54] Speaker 02:
I mean, do they make any effort to check and see, are there other words that get added for certain posts?

[00:58:02] Speaker 02:
Oh, I see.

[00:58:03] Speaker 02:
Or some turned off?

[00:58:05] Speaker 02:
So the filters apply.

[00:58:06] Speaker 02:
For example, if we're talking about COVID tests, do we turn off blocking the word test in comments?

[00:58:13] Speaker 05:
The filters apply across all posts.

[00:58:15] Speaker 05:
I don't believe there's a technologically possible way to turn them off for just one post.

[00:58:20] Speaker 05:
And I would emphasize, Your Honor, that we recognize that that has imperfect results.

[00:58:27] Speaker 05:
The problem that NIH was addressing is that these words were recurrently used.

[00:58:32] Speaker 02:
And unless... So we would have to agree that categorically, these words are so often off topic.

[00:58:44] Speaker 02:
that it's permissible for NIH to do it, because you're not adjusting topic by topic on your posts.

[00:58:53] Speaker 05:
So the question under reasonability is whether it's reasonably.

[00:58:59] Speaker 05:
It doesn't have to be the most reasonable limitation.

[00:59:03] Speaker 05:
It just has to be a reasonable limitation.

[00:59:04] Speaker 05:
And if there is, you know.

[00:59:06] Speaker 02:
They came up with this list.

[00:59:08] Speaker 05:
The social media administrators at NIH.

[00:59:11] Speaker 02:
Do we know how they came up with it?

[00:59:13] Speaker 05:
based on their experience reviewing the kinds of comments that were on NIH's posts.

[00:59:19] Speaker 02:
Any guidance given to them on how much is too much?

[00:59:25] Speaker 02:
How often, even if it shows up a lot, it's also gonna be relevant across the board for NIH policies?

[00:59:32] Speaker 02:
They just said which boards are showing up the most and not what topics do we... Do they then compare it to what topics does NIH discuss?

[00:59:43] Speaker 05:
So these were the words that showed up the most in commentary that was clearly off topic.

[00:59:52] Speaker 05:
There was not even an attempt by the commenters to be off topic.

[00:59:55] Speaker 02:
How did they decide it was clearly off topic is what I keep coming back to.

[00:59:59] Speaker 02:
Because I really am struggling with how test is just clearly off topic for NIH.

[01:00:05] Speaker 05:
The comments that were being posted were using these terms and the comments themselves were not related to the topic of the post.

[01:00:12] Speaker 05:
It's not a question of whether test itself is on or off topic.

[01:00:16] Speaker 05:
It's that the comments that they saw that were off topic were recurrently using these terms.

[01:00:21] Speaker 05:
And that's why.

[01:00:22] Speaker 02:
The keywords can be acutely on topic.

[01:00:25] Speaker 02:
That doesn't matter for your First Amendment analysis as long as

[01:00:30] Speaker 02:
some people out there are using, or a lot of people out there are using them in a bad way.

[01:00:35] Speaker 05:
There's a problem that NIH is trying to address, which is off-topic comments that are using these words.

[01:00:40] Speaker 05:
And the effect of prohibiting these words might be to also filter out comments that are on topic.

[01:00:48] Speaker 05:
But under the First Amendment, we don't require tailoring if it's a limited public forum.

[01:00:52] Speaker 05:
And so the fact that occasionally this is going to be over-inclusive is not something that is required, as long as the

[01:00:59] Speaker 05:
The government was reasonably attempting to address a legitimate problem.

[01:01:02] Speaker 05:
And here, there was a legitimate problem of comments that were currently using these terms.

[01:01:08] Speaker 02:
Thank you very much.

[01:01:09] Speaker 05:
Thank you, Your Honors.

[01:01:11] Speaker 02:
Ms.

[01:01:12] Speaker 02:
Crint, we'll give you three minutes for rebuttal.

[01:01:14] Speaker 02:
I think we've gone over our 10-minute time limit here.

[01:01:21] Speaker 04:
Thank you, Your Honors.

[01:01:23] Speaker 04:
I just want to take a moment to be clear about the burden and the factual record in this case.

[01:01:28] Speaker 04:
The burden always rests with the government to prove the constitutionality of its conduct.

[01:01:33] Speaker 04:
So to the extent the factual record is sparse, I think that's a problem for the government.

[01:01:38] Speaker 04:
It's especially a problem for the government because it's only under the government's theory that the question of when and how these keywords were developed and exactly how much

[01:01:47] Speaker 04:
off topic speech there might be on the comment threads becomes relevant.

[01:01:52] Speaker 02:
If you didn't ask for any of that information, you were happy to proceed on a stipulated record and not dispute their claims of overwhelming

[01:02:01] Speaker 02:
off-topic comments.

[01:02:02] Speaker 02:
That's where I'm struggling.

[01:02:04] Speaker 02:
You all agreed to do this.

[01:02:06] Speaker 02:
This isn't a contested summary judgment record.

[01:02:10] Speaker 02:
That's right.

[01:02:11] Speaker 02:
And I think... Your agreement to come forward on this record and say, fine, we'll take as given that these are overwhelming majority of comments.

[01:02:18] Speaker 04:
Well, I think my answer to you, Judge, is yes and no.

[01:02:21] Speaker 04:
Yes, it is a stipulated record.

[01:02:22] Speaker 04:
But no, the plaintiffs have never conceded that comments about animal testing are the most prevalent form of off-topic speech on the threads.

[01:02:30] Speaker 04:
I think if you read the briefs at the district court level, you will see that very clear.

[01:02:34] Speaker 04:
Even the district court's own opinion makes it very clear that we argue that there are copious amounts of on-topic speech about animal testing, and that there's nothing unique about criticism of animal testing

[01:02:47] Speaker 04:
that could justify the government's single-minded focus on animal testing as an off-topic subject matter.

[01:02:53] Speaker 04:
I also want to be clear that the district court didn't make any factual findings to say that criticism of animal testing or even comments about animal testing are the most prevalent form of off-topic speech.

[01:03:03] Speaker 04:
I think the district court said there were large amounts of off-topic speech, and that might justify the

[01:03:10] Speaker 04:
the decision here, but I don't think that's enough.

[01:03:13] Speaker 04:
And in fact, at summary judgment before the district court, we explained that if the NIH's benign motive is relevant, then you would have to look into questions about what decisions the NIH made, what information it was relying on.

[01:03:26] Speaker 04:
But to take a step back, I don't think those facts are actually needed to determine what course this case should take next.

[01:03:33] Speaker 04:
That's because the NIH's scheme here is by design so over inclusive that it allows the government to talk about animal testing.

[01:03:41] Speaker 04:
while silencing its critics on that very subject.

[01:03:44] Speaker 04:
And when it does that, it targets criticism in the very words it chooses to include in keyword blocking.

[01:03:50] Speaker 04:
On this theory, the NIH could decide to ban all mention of Biden or Trump in the run up to the election, saying that they have nothing to do with the very specific post, even mention of Dr. Fauci, who was an important figure in leading the public health effort around COVID-19.

[01:04:05] Speaker 04:
And I don't think the problem stopped with the NIH, right?

[01:04:07] Speaker 04:
Because you could have a school board that wants to ban mention of phrases like CRT,

[01:04:11] Speaker 04:
or Black Lives Matter, you could have the State Department banning criticism of its policy on Israel and Gaza, even as it is providing updates on its own conduct with respect to that action.

[01:04:23] Speaker 04:
That's what makes the keyword blocking here so dangerous.

[01:04:26] Speaker 04:
And that's exactly why we'd ask this court to reverse the district court.

[01:04:29] Speaker 02:
Do you have any knowledge, and I guess it may just not be on the record, of how facile these keyword blocking techniques are?

[01:04:37] Speaker 02:
Can they be done post by post, as opposed to categorically across pages?

[01:04:43] Speaker 02:
How easily can they be turned on and off?

[01:04:47] Speaker 04:
Right now, I don't believe they can be done post by post.

[01:04:51] Speaker 04:
The joint stipulation makes clear that these apply to the page in its entirety, not to a specific post.

[01:04:57] Speaker 04:
I don't have the specific site in the joint stipulation, but I believe all you have to do is log on to your settings and add or subtract the words that you want blocked.

[01:05:06] Speaker 04:
So it would be simple for the NIH to kind of update that list.

[01:05:10] Speaker 04:
And the fact that the NIH has shown no interest in doing that, that it continues to block these terms indefinitely, I think it's further evidence that it is not enforcing an off-topic rule, certainly not in any even-minded way, but is instead

[01:05:23] Speaker 04:
targeting criticism of animal testing, and doing so because it's criticism of the agency.

[01:05:29] Speaker 04:
I really think those are the stakes of this case.

[01:05:31] Speaker 04:
There are other tools the NIH could have used if it wanted to go about targeting off-topic speech, repetitive speech, bot speech.

[01:05:39] Speaker 04:
But what it's done instead is target a particular form of criticism against the agency, and that violates the First Amendment.

[01:05:44] Speaker 02:
There were a certain group that kept using bot speech and kept repeating the same flat earth, flat earth, flat earth.

[01:05:52] Speaker 02:
I think they then ban Flat Earth.

[01:05:55] Speaker 04:
I think then that what they could do is use content neutral means to moderate that speech.

[01:06:00] Speaker 04:
So it could ban bot speech for all speakers.

[01:06:02] Speaker 02:
That's what I'm asking is, how do you?

[01:06:04] Speaker 02:
OK, so they have a policy that no bot speech, but how do they enforce that?

[01:06:10] Speaker 04:
Well, your honor, I think it's telling that they haven't even tried.

[01:06:13] Speaker 04:
How do you do?

[01:06:14] Speaker 02:
I mean, it doesn't help me for you to give me an example that actually doesn't work in the real world other than to sort of shake your fingers and say no bot speech.

[01:06:21] Speaker 04:
Well, I do think it would have an effect in two respects.

[01:06:23] Speaker 04:
The first is that having that rule could deter some of the conduct.

[01:06:27] Speaker 04:
The fact that the NIH hasn't tried to not deter robots.

[01:06:32] Speaker 04:
Well, it might deter the people that are creating the bots that are being sent.

[01:06:35] Speaker 04:
I'm dubious about that.

[01:06:36] Speaker 04:
The NIH could also use manual review.

[01:06:39] Speaker 04:
And we don't know.

[01:06:39] Speaker 02:
I think the world is manual review.

[01:06:41] Speaker 02:
I mean, they already have the repetitive posts in their guidelines.

[01:06:45] Speaker 02:
So they can do that.

[01:06:47] Speaker 02:
And then they can have, it sounds to me again like your position at the end of the day is manual review or nothing.

[01:06:54] Speaker 04:
I don't think it's or nothing.

[01:06:55] Speaker 04:
I think at the end of the day, our position is that keyword blocking cannot be used.

[01:06:59] Speaker 02:
What's the other alternative?

[01:07:00] Speaker 04:
Well, for example, if the bots had a similar username, I suppose at that point, you might be able to use a keyword filter to target those bots.

[01:07:08] Speaker 04:
It might also be that manual review is much more efficient when you're looking at bot speech rather than looking at the content of a particular post to enforce an off-topic rule.

[01:07:16] Speaker 04:
So I don't think the NIH's hands are tied.

[01:07:18] Speaker 04:
It might be that moderation is not a completely cost-free benefit to the NIH's comment threads.

[01:07:26] Speaker 04:
This court has always said,

[01:07:27] Speaker 04:
that you cannot sacrifice speech just at the altar of efficiency.

[01:07:31] Speaker 02:
So there may be- I mean, the consequences, if you push government into a position where it just has to have no comments, turn off the comment option on all of its posts.

[01:07:45] Speaker 02:
It's hard to see how that's a pro-speech outcome, but if that's the corner they're backed into because they don't have resources, it's

[01:07:53] Speaker 02:
It's unworkable to have every government agency employing armies and armies of people to manually review.

[01:08:00] Speaker 02:
And by the way, they must have these perfect First Amendment, not too discretionary standards for every review.

[01:08:07] Speaker 02:
If that's just not tenable, then they're just gonna have to turn off comment threads.

[01:08:12] Speaker 02:
Then you're gonna be worse off.

[01:08:14] Speaker 04:
I understand the concern about perfect enforcement and negative results that might lead from that.

[01:08:19] Speaker 04:
It's possible that the NIH chooses to actually limit its forum.

[01:08:23] Speaker 04:
by enforcing its rules in a way that does suppress more speech.

[01:08:26] Speaker 04:
It's possible that it turns off.

[01:08:27] Speaker 02:
That's suppressing speech if it decides not to have comments.

[01:08:30] Speaker 02:
Right.

[01:08:30] Speaker 02:
It's possible.

[01:08:31] Speaker 02:
That's not suppressing speech.

[01:08:32] Speaker 02:
That's their choice.

[01:08:33] Speaker 04:
That's right.

[01:08:33] Speaker 04:
And it could be their choice to close the comment threads.

[01:08:36] Speaker 04:
And I do think that would be a bad outcome for speech.

[01:08:38] Speaker 04:
But what I think would be a worse outcome is to allow a government agency to hold open a comment thread that looks to everyone else like it's open for discussion.

[01:08:47] Speaker 04:
But behind the scenes, they're using kind of the invisible hand of the government to pluck out criticism.

[01:08:53] Speaker 04:
and to tilt and distort the field of public debate in these digital public spaces.

[01:08:58] Speaker 04:
I think that is the worst case scenario for free speech.

[01:09:01] Speaker 04:
And I think the First Amendment prohibits it.

[01:09:05] Speaker 02:
Thank you very much.

[01:09:05] Speaker 02:
The case is submitted.