Hyper Over Hyperlinks
Must a city provide a link to an arch-critic?
By Jane Kirtley
Jane Kirtley (email@example.com) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
IT MUST HAVE seemed like such a nice idea.
The city of Cookeville, Tennessee, decided to set up its own Web site to provide useful information to online visitors. Steve Corder, the city's computer operations manager, would add hypertext links to other sites that requested them, including those of a local college, Internet service providers, a truck product manufacturer, and a site with information about Cookeville.
Everything was just fine until October 1997, when Geoffrey Davidian asked for a link to his online newspaper.
Davidian had been a thorn in the city's side for quite some time. A self-described government watchdog "without a leash," he had made repeated and voluminous requests for public documents under the Tennessee open records law. He published the Putnam Pit, a free weekly tabloid and Web site, which was, to put it mildly, critical of the Cookeville city government. In March 1997, he had sued the city, claiming it violated his civil rights by limiting his access to records (on the grounds that he was an out-of-state resident) and by obstructing distribution of his newspaper in city buildings.
When Davidian asked for the link, Corder notified City Manager Jim Shipley, who at the time, he later claimed, did not even know what a link was. But Shipley quickly woke up to the fact that Cookeville had no formal policy in place governing who could be linked from the city's Web page. If you asked for a link, you'd get it.
Clearly, this would not do, city officials must have thought. What kind of riffraff would end up linked from the city's site, if it was open to all comers? So Shipley unilaterally decided that only nonprofits would be given links, and then, only if their sites promoted the "economic welfare, tourism, and industry of the city." Under the new policy, the Putnam Pit's request for a link was denied, and several other links that didn't fit the criteria were removed.
Davidian was set to sue the city again, because the previous July he had asked for computer files showing the outstanding parking tickets issued by the city, and that September Cookeville passed an ordinance stating that it need not provide electronic copies of records not normally kept in that format.
Do you see a pattern here? Davidian did. In October 1997, he brought his suit in Tennessee state court, alleging an array of violations of his rights under both state law and the U.S. Constitution. Among other things, he claimed that the city's refusal to establish the hyperlink from its Web page to his site violated his First Amendment rights.
The case was moved to U.S. District Court in Cookeville. Judge Thomas A. Higgins found that the government Web page was neither a traditional public forum--like a public street or a park--nor a designated public forum for free expression. Davidian's site was easily accessible to anyone on the Internet, so refusing to allow Davidian his link would not deny him alternative access points to spread his message. Accordingly, Cookeville could refuse Davidian a link from its site if it wished.
Davidian appealed to the 6th U.S. Circuit Court of Appeals, where the three-judge panel unanimously reversed the decision in July. The court agreed that Cookeville's Web site was neither a traditional nor a designated public forum because it did not allow for open communication between members of the public, but it found that the page was a nonpublic forum. This means that the city cannot unreasonably deny links from its site, nor may it discriminate against speakers who want to be linked from it based on their viewpoints.
The 6th Circuit conceded that the city's policy of allowing only links consistent with the purpose of the site was reasonable. But the vague standard requiring linked sites to promote economic welfare, industry and tourism gave officials virtually unlimited discretion to discriminate based on viewpoint. Shipley essentially had admitted as much, stating in a deposition that he "didn't care for" Davidian's opinions and that the Putnam Pit distorted the truth.
The appeals court sent the case back to the District Court for a trial on the issue of whether the city unconstitutionally denied Davidian a link solely because it didn't like what he had to say about Cookeville.
No doubt city officials wish they had never set up that Web page--or at least, had never allowed any links to other sites. After all, they had no obligation to permit those links in the first place.
But having chosen to do so, it cannot now discriminate against those who would like to speak in its nonpublic forum--even if the speaker is "Putnam County's Watchdog Press."