NIH Hid Public Comments Package — page 118

4. Keep the filters without additional changes if options #1 and #2 are not feasible and these filters are key to stopping harassment from PETA. If you are considering option #4, while a court may find that these keywords are not viewpoint neutral, the DOJ said the worst that would happen is a court would order NIH to stop filtering these terms as part of its ruling. But, ideally we'd prefer options #1-3 for a stronger case. 2. What are the ramifications if NIH does not win the lawsuit? What does that mean NIH will and will not be able to moderate on its Facebook and Instagram pages? The DOJ explained that if NIH fully loses the case and the judge deems NIH's Facebook and Instagram as public forums and grants an injunction, NIH would still be able to moderate the platforms for the categories of speech that are not protected by the First Amendment, such as obscenity, fighting words, defamation, incitement to induce imminent lawless action, true threats, and solicitations to commit crimes. The DOJ did say that the NIH would not be able to moderate off-topic comments if the injunction is granted. If the NIH only lost on the viewpoint discrimination argument, but the platforms were not viewed as public forums, the DOJ's preliminary opinion is that the comment guidelines would only need a slight modification to clarify that animal testing as a general topic is off limits. Overall, the DOJ's opinion is that even if NIH fully lost the lawsuit, NIH would not be in a worse position than if it did not fight the lawsuit. Essentially, losing the lawsuit would only allow NIH to moderate the areas of speech that are not protected by the First Amendment and to not have any discretion outside of these areas. It appears that NIH not fighting the lawsuit and removing all animal- related filters would have a similar effect, although by not being under a court order NIH would still have discretion to moderate as it pleases, which would include off topic comments. However, if NIH removes all of the animal related filters to get PETA to drop the lawsuit and then manually moderates PETA's off topic comments, PETA may file another lawsuit about the manual moderation so it may not get us very far. Please let us know your thoughts on if you are in agreement with the DOJ's assessment that losing the case versus not fighting it would have a similar effect. Next Steps and Additional Requests for Information The DOJ and PETA have agreed to file a stipulation of facts to avoid discovery, and then the briefs for summary judgement will be drafted based on these facts. Summary judgement means the judge will make a decision on the injunction based on the briefs without holding a full trial. The deadline for the stipulation of facts is next Wednesday, December 8th but this may be pushed back a few days. The DOJ seeks some additional information from the NIH to fill in the facts, outlined below: 1. Manual Moderation of Comments 1. What was the exact date NIH stopped manually moderating comments? I know it was after the lawsuit was filed, but can you give us the date? 9/10/21