Link from city government web site cannot be denied based on viewpoint

From the Summer 2000 issue of The News Media & The Law, page 11.

The publisher of the on-line newsletter The Putnam Pit will be allowed to contest the City of Cookeville’s refusal to create a link from the Tennessee city’s web site to the Pit web site, after a panel of the U.S. Court of Appeals in Cincinnati (6th Cir.) partially overturned the dismissal of his case on July 19.

The court found that while a government-operated web site is a nonpublic forum, any regulation of the content must be “viewpoint neutral,” and the city’s denial of a link to the Pit violated this standard.

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Publisher Geoffrey Davidian sued the City of Cookeville in state court in October 1997 after the city denied his request for a hyperlink on the city’s web site to the web site of his newspaper, The Putnam Pit. The case was moved to federal court in Nashville.

Davidian alleged that the city’s site constituted a public forum, thus giving him the broadest First Amendment protections in expressing his views via a hyperlink to his website. But even if the city’s web site was not a public forum, he argued, denying him a link due to his viewpoint unconstitutionally discriminated against him.

Along with his First Amendment claim over the hyperlink, Davidian also alleged First Amendment violations over the city’s refusal to provide him information about traffic violations in electronic form. The city had provided printed copies of the violations.

The city argued that a government web site is not a public forum, and it properly limited the links on its site to those that promoted “economic welfare, tourism, and industry” in Cookeville.

The district court dismissed all of Davidian’s claims in September 1998.

The court held that the city’s web page was not a traditional public forum. “It is clear that unlike public streets and parks, web pages on the Internet have not by long tradition or government fiat been devoted to assembly and debate; nor has the City’s web page immemorially been held in trust for the use of the public,” the court ruled.

Moreover, the court found that the city had not created a designated public forum, noting that the city had the prerogative to allow selective links on its web page.

The court determined that the city’s subject-matter limitation was reasonable “in light of the disruptions to the City’s ability to communicate its own messages if it were required to allow any and every other operator of a web site to be linked to the City’s web site.”

The court noted that there were alternative channels for Davidian to spread his message. According to the court, The Putnam Pit web site could be easily accessed on the Internet if users simply entered the term “Cookeville, Tennessee” at a web search site. The court stated that the “denial of a link from the City’s web page does not result in the plaintiffs having no medium or access points through which to spread their message.”

The court also found that he had no First Amendment right to obtain records in electronic format, as such access is controlled by state law, not the federal constitution.

Davidian appealed the dismissal to the U.S. Court of Appeals in Cincinnati (6th Cir.).

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of Davidian, arguing that in the emerging world of cyberspace, government entities do not have the same limits of resources and space that justify forum restrictions. Web sites can accommodate nearly limitless speech, and provide the perfect vehicle for public comment and expression, the Reporters Committee argued. The brief added that even if the court should find that the site is a nonpublic forum, the city’s denial of access only to the Pit constitutes improper viewpoint discrimination.

On July 19, 2000, the court upheld the District Court’s dismissal of his electronic records claim, but ordered a new hearing over the city’s refusal of a web link.

The court found that a government-operated web site like that run by Cookeville has not been held out by the city as a forum for speech. It is instead a “nonpublic forum,” the court held, and therefore a private publisher has no entitlement to a link from the site. However, in such a forum any regulation of content must be “viewpoint neutral,” and the city cannot deny Davidian a link “solely based on the controversial views he espouses,” the court held.

Cookeville “has legitimate interests in keeping links that are consistent with the purpose of the site — providing information about city services, attractions, and officials,” but the city will have to prove that its denial of Davidian’s request for a link on the city’s site was a “viewpoint neutral” decision, the court held.

The court noted that in depositions, both the city’s computer operations manager and the city manager said that Davidian’s request was denied because they felt Davidian’s site expressed “controversial” points of view that they “didn’t care for.”