Refusal to Establish Hyperlink May Violate First Amendment Rights

Geoffrey Davidian publishes The Putnam Pit, a tabloid and website that monitors corruption in Cookeville, Tennessee. Davidian lives in California but developed an interest in Cookeville after learning of an unsolved murder in the Cookeville area. After years of interacting with city officials, Davidian requested a hyperlink from the city’s website to his online newspaper. In response, the city created and modified a policy on establishing links, finally denying Davidian’s request. Additionally, the city refused Davidian’s request for electronic copies of city parking tickets. Davidian sued the city and city manager Jim Shipley for violating his First Amendment rights on two separate issues. First, Davidian alleged that the refusal to establish the hyperlink violated his First Amendment freedom of speech. Second, Davidian claimed that the city’s refusal to provide electronic copies of parking tickets violated his First Amendment freedom of the press.When Davidian first requested the hyperlink, the city’s website contained links to both for-profit and non-profit entities, and the city had no stated policy on allowing links. Instead, computer operations manager Steve Corder simply added links upon request, without consulting the city manager Shipley. When Davidian made his request, however, Corder deferred to Shipley, stating that The Putnam Pit was “a very controversial topic” and that it was not in his “personal best interest to make the decision” on establishing the link. Shipley responded by creating a policy limiting links to non-profit organizations, and Davidian followed by informing Shipley of his intention to transform The Putnam Pit into a non-profit organization. Shipley then modified the policy, determining that only links to organizations that “promote the economic welfare, tourism, and industry of the city” would be permitted. Acting under the new policy, Shipley denied a link to Davidian and removed several existing links. Davidian alleged that this final denial represented an unconstitutional viewpoint discrimination.

The district court granted summary judgment to the city on both the hyperlink and the parking ticket claims, and Davidian appealed to the Sixth Circuit. The Court affirmed the grant of summary judgment for the parking ticket claim, but reversed and remanded on the hyperlink claim.

In determining whether there was a genuine issue of material fact as to whether the city had violated Davidian’s free speech rights, the Court first considered what type of forum the city’s website represented. The Court described three types of government fora: public, designated public, and private. While the type of forum dictates what restriction on access is permitted, the Court explained, discrimination based on viewpoint is never permitted, regardless of the type of forum.

A public forum is characterized by open communication. The Court found that the city’s website, which does not provide for free exchange of ideas among members of the public, is not a public forum. Next, the Court determined whether the website was a designated public forum, in which the government “intentionally open[s] a nontraditional public forum for public discourse,” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), or a nonpublic forum. In a designated public forum, “government restrictions must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communication.” The distinction between designated public forum and nonpublic forum follows a two-step analysis. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 352 (6th Cir. 1998). A forum is a nonpublic forum if (1) permission is granted on a case-by-case basis, rather than to a general class of participants; and (2) participants are restricted in accordance with the forum’s purpose. In this case, the Court reasoned, the city evaluated hyperlink requests on a case-by-case basis, allowing only those that conformed with the site’s general purpose and nature. That is, both parts of the test were satisfied, and the Court found the website to be a nonpublic forum under the First Amendment.

The government may impose restrictions on a nonpublic forum that are reasonably consistent with its interests. It cannot, however, select participants based on their viewpoint. Viewpoint discrimination is a clear First Amendment violation. As the Court stated, while “Davidian has no entitlement to a link to the city’s Web site, … he may not be denied one solely based on the controversial views he espouses….” The reason for the city’s exclusion of Davidian were unclear, particularly because the city established and modified its hyperlink policy in direct response to Davidian’s request. The city’s actions were consistent with, but not proof of, viewpoint discrimination. The Court ruled that summary judgment was not appropriate in light of these facts and reversed and remanded to the district court for further proceedings.

In the parking ticket issue, the Court affirmed the district court’s grant of summary judgment to the city, reasoning that that the press has no greater access to information than does the general public. Additionally, it is well established that there is “no First Amendment right to government information in a particular form, as long as the information sought is made available as required by the First Amendment.”

Putnam Pit, Inc. v. City of Cookeville, Tenn., 21 F.3d 834 (6th Cir. 2000).

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