UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

Case No. 98-6438

________________________

THE PUTNAM PIT, INC., and GEOFFREY DAVIDIAN,

Plaintiffs/Appellants,

v.

CITY OF COOKEVILLE, and JIM SHIPLEY,

in his official capacity as City Manager

of the City of Cookeville,

Defendants/Appellees.

________________________

Appeal from the United States District Court

Middle District of Tennessee, Northeastern Division

Honorable Thomas A. Higgins, Presiding Judge

No. 2:97-0108

________________________

BRIEF OF AMICUS CURIAE

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS





______________________________________________________________________________

Samuel J. Harris

Harris Law Firm

Attorney for Plaintiffs-Appellants

9 S. Jefferson

Suite 206, P.O. Box 873

Cookeville, TN 38503
 

John C. Duffy

Watson, Hollow & Reeves

Attorney for Defendants-Appellees

800 S. Gay Street

Suite 1700 Plaza Tower, P.O. Box 131

Knoxville, TN 37901

______________________________________________________________________________

CORPORATE DISCLOSURE STATEMENT

Pursuant to 6th Cir. R. 25, Amicus Curiae The Reporters Committee for Freedom of the Press makes the following disclosure:
 

1. Is Amicus a subsidiary or affiliate of a publicly-owned corporation? No

2. Is there a publicly-owned corporation, not a party to the appeal, that Amicus knows has a substantial financial interest in the outcome of this litigation? Amicus knows of no publicly-owned corporations that have a substantial interest in the outcome of this litigation
 

_______________________ _________________

Jane E. Kirtley, Date

Counsel of Record for

Amicus Curiae

TABLE OF CONTENTS





TABLE OF AUTHORITIES ii
 

STATEMENT OF INTEREST OF AMICUS CURIAE 1
 

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION 2
 

STATEMENT OF ISSUE PRESENTED FOR REVIEW 3
 

STATEMENT OF THE CASE 4
 

STATEMENT OF FACTS 5
 

SUMMARY OF THE ARGUMENT 8
 

ARGUMENT 10
 

I. THE TRIAL COURT ERRED IN DETERMINING THAT THE CITY OF COOKEVILLE'S WEB PAGE IS A NON-PUBLIC FORUM 10
 

A. THE CITY OF COOKEVILLE'S WEB PAGE IS A TRADITIONAL PUBLIC FORUM 12
 

B. ALTERNATIVELY, THE CITY OF COOKEVILLE'S WEB PAGE IS A DESIGNATED PUBLIC FORUM 16
 

II. ALTERNATIVELY, SHOULD THIS COURT DEEM THE CITY OF COOKEVILLE'S WEB PAGE TO BE A NON-PUBLIC FORUM, THE CITY'S DENIAL OF A LINK TO THE PUTNAM PIT WAS UNCONSTITUTIONAL VIEWPOINT DISCRIMINATION 22
 

CONCLUSION 29
 

CERTIFICATE OF SERVICE 30
 
 

TABLE OF AUTHORITIES





CASES
 

ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff'd sub nom. Reno v. ACLU, 521 U.S. 844 (1997) 11
 

Amato v Wilentz, 753 F. Supp. 543 (D.N.J. 1990), vacated, 952 F.2d 742 (3d. Cir. 1994) 27
 

Arkansas Educ Television v. Forbes, __ U.S. __; 118 S. Ct. 1633; 140 L. Ed. 2d 875 (1998)

17, 18
 

Baugh v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir. 1990) 27
 

Carey v. Brown, 447 U.S. 455 (1980) 13
 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 25
 

CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) 28
 

Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir. 1989) 20
 

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985)

14, 17, 23, 26, 27
 

Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996) 28
 

Frisby v. Schultz, 487 U.S. 474 (1988) 14
 

Giglio v. United States, 405 U.S. 150 (1972) 21
 

Grayned v. Rockford, 408 U.S. 104 (1972) 12
 

Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939) 13
 

In re: The Department of Energy Stripper Well Exemption Litigation Reserves Group, Inc., 520 F. Supp. 1232 (D. Kan. 1981), rev'd on other grounds, 620 F.2d 1375 (Temp. Emer. Ct. App. 1982)

21
 

International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) 15
 

Jacobellis v. Ohio, 378 U.S. 184 (1964) 14
 

Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) 25-27
 

Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) 19
 

Perry Educational Association v. Perry Local Educators' Association, 460 U.S. 37 (1983)

10, 11, 13, 14, 17-19, 22
 

Putnam Pit v City of Cookeville, 23 F. Supp.2d 822 (M.D. Tenn. 1998) 12, 17, 18, 20, 22-25
 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 19
 

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) 16, 18
 

Schneider v. State, 308 U.S. 147 (1939) 14
 

Student Gov't v. Board of Trustees of the University of Mass., 868 F.2d 473 (1st Cir. 1989) 19
 

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) 13
 

United States v Perez, 956 F. Supp 1046 (D. P. R. 1997) 21
 

Warren v. Fairfax County, 988 F. Supp. 957 (E.D. Va. 1997) 21
 

OTHER AUTHORITY
 

David J. Goldstone, The Public Forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?), 46 Hastings L.J. 335 (1995)

10, 14, 16
 

James V. Dobeous, Rating Internet Content and the Spectre of Government Regulation, 16 J. Comp. & Infor. L. 625 (1998) 11
 

Mark Sableman, Link Law: The Evolving Law of Internet Hyperlinks, Newsletter of Media Law and Defamation Torts Committee, A. B. A. Tort and Insurance Practice Section, Summer 1998, 11
 

Steven G. Gey, Reopening the Public Forum -- From Sidewalks to Cyberspace, 58 Ohio St. L.J. 1535 (1998) 10
 

Upper Cumberland Virtual Community, available at http://www.cookeville.midtenn.net/ 24

STATEMENT OF INTEREST





The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of working reporters and editors, dedicated to defending the First Amendment and freedom of information interests of the news media. The Reporters Committee has provided representation, legal guidance and research in virtually every major press freedoms case that has been litigated in the United States since 1970.

STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION





Amicus adopts the Appellant's Statement of Subject Matter and Appellate Jurisdiction.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Amicus adopts the Appellant's Statement of Issues Presented for Review. However, Amicus will address only one issue in this brief: the trial court's dismissal of Appellant's claim that it had a First Amendment right to be linked to Appellee's Web page. Amicus will not address the trial court's dismissal of Appellant's claim that it had a First Amendment right of access to the City of Cookeville's employee computer files.
 
 

STATEMENT OF THE CASE

Amicus adopts the Appellant's Statement of the Case.

STATEMENT OF FACTS

Amicus adopts the Appellant's Statement of Facts. However, Amicus highlights several relevant facts below to clarify and support the legal analyses set forth in this brief.

The Putnam Pit, Inc. ("The Putnam Pit"), is a newspaper and Web page which focuses its commentary on the local government of the City of Cookeville ("the City"). On October 15, 1997, Plaintiff Geoffery Davidian ("Davidian"), publisher of The Putnam Pit, asked to have a link from the City's Web page to The Putnam Pit's Web page (Deposition of Jim Shipley, p. 51).

Steve Corder ("Corder"), the City of Cookeville's computer operations manager, testified that he was in charge of the City's Web page at the time of Davidian's request for a link (Deposition of Steve Corder, p. 19). Corder also testified that prior to Davidian's request, Corder granted a link to every site that desired one. According to Corder, "Well, when I was -when I made the decision who got linked, basically if they were a business or organization in the City of Cookeville and they had their own web site, and they requested that they be linked, generally I linked them." (Dep. of Corder, pp. 19-20, 26.)

When Davidian requested a link, Corder, for the first time, asked his superior whether to grant this request (Dep. of Corder, pp. 21-22, 27). Corder testified that he questioned granting this particular link because The Putnam Pit was "very controversial." (Dep. of Corder, pp. 22, 26-27.) According to Corder, "everyone" in Cookeville knew that The Putnam Pit was controversial. (Dep. of Corder, p. 22). Corder further testified that The Putnam Pit was controversial because of its content (Dep. of Corder, p. 23).

Jim Shipley ("Shipley"), the City manager, testified that until the time Davidian requested a link, he was unaware that the City had been "allowing any private businesses to link" (Dep. of Shipley, pp. 51-52). Notably, Shipley said he did not know what a link was, let alone that the City had been granting links to every entity that had asked for one (Dep. of Shipley, p. 52). Shipley initially testified that Corder was responsible for links from the City's Web page (Dep. of Shipley, p. 52). However, Shipley later testified that he was the person ultimately responsible for the granting of links (Dep. of Shipley, pp. 55, 58).

In responding to Davidian's request, Shipley told him that he had initiated a new policy denying links to all private businesses. Shipley told Davidian, "The only links that will be permitted on our page will be non-profits." (Dep. of Shipley, p. 52.) Davidian was subsequently told that even if The Putnam Pit became a non-profit entity, it would still be denied a link (Dep. of Shipley, pp. 53-54).

Shipley testified that he later instituted a policy that the City would grant links only to sites that promoted industry, tourism, and the economic welfare in the City (Dep. of Shipley, p. 52). According to Shipley, two sites are currently linked from the City's web page: "Tennessee Tech" and "one virtual community information link" (Dep. of Shipley, pp. 52-53).(1) Despite the new policy, Shipley testified that he still had "a real problem with allowing for-profit businesses to be linked to the City of Cookeville's web page." He testified that he does not "like the City of Cookeville to endorse any local business, endorse any attorney's practice, or air-conditioning service, or anything else." (Dep. of Shipley, p. 54.)

Shipley testified that he disliked the viewpoint of The Putnam Pit. Shipley stated, " I think the stories are slanted" (Dep. of Shipley, p. 43). Shipley further testified that The Putnam Pit does not promote the economic welfare of the City (Dep. of Shipley, pp. 54-55). Shipley also testified that he thinks that The Putnam Pit is negative because "it distorts the truth, slants the truth, [and] gives Mr. Davidian's opinions about what has happened" (Dep. of Shipley, pp. 44, 60). Shipley admitted, however, that The Putnam Pit contains information about Cookeville, just like the virtual community Web page (Dep. of Shipley, p. 58). Shipley distinguished between the two sites by stating that the virtual page gave "general information for the visitor" about Cookeville, while The Putnam Pit page did not (Dep. of Shipley, p. 58).

SUMMARY OF ARGUMENT

The trial court erred in holding the City's Web page to be a non-public forum. Rather, the trial court should have found the City's Web page to be a traditional public forum. Although the City's Web page has not been a historical site for assembly and debate, it is inherently a place where assembly and debate occur. Because of their ability to accommodate a multitude of speakers and viewpoints, Web pages are natural and proper places for dissemination of information and opinion. Indeed, the Internet and Web pages, albeit new concepts, are uniquely capable of providing places for free expression. As such, this Court should find that the City's governmentally created Web page is a traditional public forum.

Alternatively, should this Court find the City's Web page not to be a traditional public forum, this Court should declare the Web page to be a "designated public forum." The City initially granted links to every site that requested one. Although the City was not obligated to open its Web page to the public, once it did so, it could not deny a link to The Putnam Pit solely because of its controversial viewpoint. The City cannot change a designated public forum into a non-public forum to avoid viewpoints that it finds repugnant. Therefore, this Court should hold the City's Web page to be a designated public forum.

Finally, even were this Court to hold the City's Web page to be a non-public forum, the City would still be prohibited from engaging in viewpoint-based discrimination. In this case, the trial court merely assumed that the City's denial of a link to The Putnam Pit was viewpoint neutral, without further explanation. The trial court erred in failing to find that the City's actions violated principles of viewpoint neutrality. The City granted a link to every Web page that dealt with the topic of "Cookeville," except The Putnam Pit's Web page, which, although dealing with "Cookeville," was found to be too controversial. In sum, even if the City's Web page is held to be a non-public forum, the City exhibited an unconstitutional bias against The Putnam Pit.

Accordingly, this Court should reverse the trial court's grant of summary judgment to the City on the issue of The Putnam Pit's right to be linked to the City's Web page.

ARGUMENT





I. THE TRIAL COURT ERRED IN DETERMINING THAT THE CITY OF COOKEVILLE'S WEB PAGE IS A NON-PUBLIC FORUM
 

In the case at bar, the trial court erred in holding that the City's Web page is a non-public forum. Because Web pages inherently are places for the dissemination of ideas, a sort of virtual Hyde park(2), the City's Web page should be deemed a traditional public forum. Alternatively, because the City initially granted a link to every site that requested one, the City created a designated public forum. Finally, regardless of the type of forum the City's Web page is ultimately determined to be, e.g., traditional, designated, or non-public, the City had to be viewpoint neutral in determining which entities should receive a link.

Forums hold an important role in the civic life of a democracy. According to law professor Steven G. Gey:

The public forum doctrine has a noble heritage. It derives from the most basic mythological image of free speech: an agitated but eloquent speaker standing on a soap box at Speakers' Corner, railing against injustices committed by the government, whose agents are powerless to keep the audience from hearing the speaker's damning words. According to the noble myth of the public forum, protecting such speakers is essential to preserving a Western democratic culture, because democracy can only flourish if citizens are free to speak Truth to Power.
 

Steven G. Gey, Reopening the Public Forum -- From Sidewalks to Cyberspace, 58 Ohio St. L.J. 1535, 1542 (1998).

In the seminal case Perry Educational Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), the United States Supreme Court created the three-tier system that continues to define the Court's public forum analysis today. According to Perry, a government-owned forum can be defined as a traditional, "quintessential public forum"; a designated public forum "which the State has opened for use by the public as a place for expressive activity"; or a non-public forum, i.e., "public property which is not by tradition or designation a forum for public communication." Id. at 45-46.

Internet and the World Wide Web ("Web")(3) sites or pages are rapidly becoming the most widely used forum since Perry was decided. In ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa. 1996), aff'd sub nom. Reno v. ACLU, 521 U.S. 844 (1997), District Court Judge Stewart Dalzell characterized the Internet as "the most participatory marketplace of mass speech that this country--and indeed the world--has yet seen," and stated that because of its unique character, "the Internet deserves the broadest possible protection from government-imposed, content-based regulation."

Web pages, with their convenience and accessibility, encourage the robust exchange of ideas, even unpopular ones. By carrying on debates over a computer network, people can interact despite geographical barriers. Given its vast capabilities for disseminating and storing information, the Internet is providing a place where every individual viewpoint can be heard. Notably, Web pages have fewer "physical" limitations on speech than other public forums, such as streets and parks. Cf. Grayned v. Rockford, 408 U.S. 104, 115 (1972) ("[T]wo parades cannot march on the same street simultaneously, and government may allow only one").

Therefore, as stated above, the trial court erred in holding that the City's Web page is a non-public forum as opposed to a traditional public forum. Alternatively, should this Court find that the City's Web page is not a traditional public forum, this Court should hold that the City created a designated public forum. Finally, regardless of the type of forum that the City's Web page is ultimately determined to be, the City was obligated to be viewpoint neutral when it determined who should receive a link.

A. THE CITY OF COOKEVILLE'S WEB PAGE IS A TRADITIONAL PUBLIC FORUM
 

The trial court erred in failing to hold the City's Web page to be a traditional public forum. In denying the City's Web page status as a traditional public forum, the trial court held:

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. Accordingly, the Court finds that the City's web page does not fit into the mold of the traditional public forum.
 

Putnam Pit v City of Cookeville, 23 F. Supp.2d 822, 829 (M.D. Tenn. 1998). Despite the fact that the City's Web page is of recent vintage and therefore has not been an historical site for assembly and debate, it is inherently a place where assembly and debate can and will occur. As such, this Court should find that the City's governmentally created Web page is a traditional public forum.

Traditional public forums do not attain that status simply because the government chooses to make them so. Rather, traditional public forums, such as the Washington Mall, enjoy that status because the Constitution dictates that they be dedicated to free expression. There are no set criteria for determining whether a place is a traditional public forum; rather, the process is self-defining. According to the Supreme Court:

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. . . . In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
 

Perry, 460 U.S. at 45 (citations omitted).(4)

The Court has tended to look at traditional public forums from a historical perspective. SeeHague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939) (Roberts, J., concurring) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."). However, contrary to the trial court's holding below, merely because Web pages are relatively new places for the exchange of ideas does not automatically disqualify them from being considered traditional public forums. Rather, the Supreme Court has stated that "each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). As stated above, the Supreme Court has created no specific test to determine whether a site is traditional public forum; rather, the Court seems to follow Justice Stewart's philosophy for determining obscenity, e.g., "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). In Frisby v. Schultz, 487 U.S. 474, 480-81 (1988), the Supreme Court held that public streets and sidewalks are "traditional public fora," reasoning simply that "no particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora."

Accordingly, in order to determine whether the City's Web page is a traditional public forum, one must look at its objective characteristics to determine if it has been "devoted to assembly and debate." Perry at 45. In general, Web pages hold many of the same characteristics that are found in other traditional public forums. According to author David J. Goldstone:

Many commentators see networking as a means of creating 'electronic town meetings,' 'in which citizens can hear and contribute to the community discussion of issues.' . . . By carrying on debates over a computer network, people can interact despite geographical barriers and can make use of other computer technologies, such as word processors, to facilitate their expression and analyses.
 

David J. Goldstone, The Public Forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?), 46 Hastings L.J. 335, 342 n.29 (1995) (citations omitted). Because of its ability to hold a multitude of speakers and viewpoints and its world-wide accessibility, Web pages are what the Supreme Court characterizes as "natural and proper places for dissemination of information and opinion." Schneider v. State, 308 U.S. 147, 163 (1939) (holding that streets are appropriate places for speech). Indeed, the Internet and Web pages, albeit new concepts, are uniquely capable of providing places for free expression. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (where the Supreme Court found the purpose of a traditional public forum to be the "free exchange of ideas.")

In his concurring opinion in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 694-697 (1992) (Kennedy, J., concurring), Justice Kennedy argued that in order to determine whether a property is a traditional public forum, courts should look to the physical characteristics of property at issue and consider whether expressive activity would interfere with its actual use, as opposed to merely looking at a property's historical use. Justice Kennedy stated: "[The public forum analysis] leaves almost no scope for the development of new public forums absent the rare approval of government . . . In my view the policies underlying the [public forum] doctrine cannot be given effect unless we recognize that open, public spaces and thoroughfares which are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of the property." Id. at 694, 697. Although relatively new to the world, the City's Web page should be deemed a traditional public forum because of its innate ability to allow for assembly and debate. In addressing Justice Kennedy's "test," Amicus notes that the presence of numerous links on the City's Web page uses up relatively little space. The City can still utilize the page for other purposes, such as posting job opportunities and council meeting agendas. Overall, in determining whether the City's Web page is a traditional public forum, this Court should incorporate Justice Kennedy's viewpoint and weigh heavily the Web page's inherent ability to facilitate assembly and debate without interfering with its other uses.

Finally, should this Court decide that the City's Web page is not a traditional public forum because it lacks a significant historical context as one, this Court could nevertheless deem the Web page a traditional public forum because it has been created by "government fiat." Although the phrase "government fiat" has not been defined by the Supreme Court(5), the Web is ripe for utilization of that alternative. According to Webster's New World Dictionary, a "fiat" is defined as "an order issued by legal authority . . . [or] decree." Webster's New World Dictionary 502 (3d ed. 1991). Although the City did not issue an order expressly stating that its Web page was to be a traditional public forum, Steve Corder, the City's computer operations manager, testified that he granted links to every site that wanted one (Dep. of Corder, pp. 19-20, 26). The City's own actions therefore allowed any person or entity that wanted to speak on its Web page the opportunity to do so. As such, the Web page has been traditionally used as a forum for free expression. Corder's behavior can be labeled as an "implicit" decree or fiat by the City that its Web page was open to all members of the public for assembly and debate.

In sum, the trial court erred in holding that the City's Web page is not a traditional public forum. Although Web pages are new in a chronological sense, they have been used since their inception as places for robust debate and assembly. Technology has allowed the City to create a new Hyde Park or Washington Mall, and therefore, this Court should hold the City's Web page to be a traditional public forum.

B. ALTERNATIVELY, THE CITY OF COOKEVILLE'S WEB PAGE IS A DESIGNATED PUBLIC FORUM
 

In the event that this Court finds that the City's Web page is not a traditional public forum, this Court should alternatively declare the Web page to be a "designated public forum." The Supreme Court recognized in Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995) that "the same principles are applicable" to forums that exist "more in a metaphysical than in a spatial or geographic sense." The City created its Web page and initially permitted all members of the public to link their individual sites from the City's site. Although the City was not obligated to open its Web page to the public as a designated forum, once it did so, it could not discriminate against individual speakers based upon their viewpoints.

A "designated open public forum" is created when public property is intentionally opened by a governmental entity for indiscriminate use by the public as a place for expressive activity. Perry, 460 U.S. at 46. Content-based regulation of speech is subject to the same strict scrutiny analysis at a designated public forum as applied in a traditional public forum. Id. The key to whether a public authority has designated a certain area a public forum is its intent. Cornelius, 473 U.S.at 802-803, 806. In ascertaining an authority's intent, the factors to be considered include (i) the authority's policy and practice regarding the area in question and (ii) "the nature of the property and its compatibility with expressive activity." Id. at 802.

In this case, the trial court erroneously determined that the City had not created a designated public forum when it had initially granted all members of the public who asked for it the right to link from its Web page. The trial court stated that "A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers." Putnam Pit, 23 F. Supp.2d at 828 (citing Arkansas Educ Television v. Forbes, __ U.S. __; 118 S. Ct. 1633, 1642; 140 L. Ed. 2d 875, 888 (1998). The trial court further noted:

The Cornelius distinction between general and selecting access furthers First Amendment interests. By recognizing the distinction, we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all. That this distinction turns on governmental intent does not render it unprotective of speech. Rather, it reflects the reality that, with the exception of traditional public fora, the government retains the choice of whether to designate its property as a forum for specified classes of speakers.
 

Id. (citing Forbes, 118 S. Ct. at 1642, 140 L.Ed.2d at 888 (citation omitted)). The trial court concluded that the City had not created a designated public forum because the City had opted to allow links only on a selective basis to sites that promoted the economic welfare, tourism and industry in the City. Id. at 830.

The trial court acknowledged, however, that when the City initially created its Web page, no policy existed with regard to the granting of links. Id. In addressing the fact that the City progressed from the practice of giving links upon request to a policy that permitted links only on a selective basis, the trial court stated, "Even though the City's policy may have been spurred by Mr. Davidian's request, the Supreme Court has held that the government 'is not required to indefinitely retain the open character of the facility.'" Id. (emphasis added) (citation omitted).

The trial court's basis for denying the City's Web page status as a designated public forum is erroneous. Amicus does not dispute that the government has the authority in certain circumstances to turn what was once a designated public forum into a non-public forum. Unlike a traditional public forum, the status of a designated public forum is subject to change; a public body that has designated a public forum is not required to "retain the open character of the facility." Perry, 460 U.S. at 46. However, the trial court erred when it ignored the fact that the only reason the City made its Web page "selective" was because of Davidian's request for a link. Although the City had no obligation to open its Web page to an entire class of speakers, once it had done so, it could not change its purpose for invidious reasons. See Rosenberger, 515 U.S. at 829 ("Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set."). The City cannot change a designated public forum into a non-public forum to avoid viewpoints that it finds repugnant. Student Gov't v. Board of Trustees of the University of Mass., 868 F.2d 473, 480 (1st Cir. 1989).

Based upon the trial court's own recitation of the record, there can be no dispute that the only reason that the City created a prohibitive link policy was because Davidian had requested a link.(6) Therefore, the trial court erred in ruling that the City could change its Web page from a designated public forum to a non-public forum to avoid granting a link to the "controversial" Putnam Pit. AccordR.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) ("The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."); Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) ("[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others."); Perry, 460 U.S. at 37 ("[T]he state may reserve the forum for its intended purposes, communicative or otherwise, so long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.").

Alternatively, the trial court relied on the fact that at the time Davidian made his request for a link, Steve Corder, the person who was in charge of granting or denying links, had no authority to act in that capacity. According to the trial court:

Mr. Corder had assumed authority over the links on the web page because he was the computer manager but not because he was the individual responsible for making such decisions. Mr. Shipley stated in his deposition that until Mr. Corder brought Mr. Davidian's link request to him, he "didn't even know what a local link was." Exhibits (filed July 20, 1998; Docket Entry No. 32) tab 3, at 52. Once Mr. Shipley found out what a local link was and that private businesses were linked from the City's web site, he removed them because he didn't "like the City of Cookeville to endorse any local business, endorse any attorney's practice, or air-conditioning service, or anything else, and I felt that would give the impression we were doing that." Id. at 54
 

Mr. Shipley further testified that he, as the City manager, is responsible for setting the policy for linking from the City's web page and that he decides "that a particular web page has or does not have the type of information" that would permit it to be linked from the City's web page. Id. at 58.
 

Putnam Pit, 23 F. Supp.2d at 830. The trial court held that because Mr. Shipley was the true decision-maker for the City and Mr. Corder had wrongly asserted authority over links, any "accidental" decision by Mr. Corder to grant links was "irrelevant" in deciding whether the City's Web page was a "designated public forum." Id.

The trial court further stated that a government does not create a designated public forum by inaction, but only by "intentionally opening a nontraditional public forum for public discourse." Putnam Pit, 23 F. Supp.2d at 830 (citation omitted). The trial court did not dispute that a City employee, Steve Corder, intentionally opened the Web page for indiscriminate use by the entire public. Rather, the trial court found that the City's lack of knowledge that Corder had opened the forum to the entire public was a valid excuse for subsequently closing it.

The trial court erred in ruling that the City's initial inadvertence permitted it to later turn its Web site into a non-public forum. A City's ignorance in creating a designated public forum does not render it any less a public forum than had the City knowingly created it. According to the Fifth Circuit, it is possible for a government entity to "create[], perhaps unwittingly, a public forum from which it [can] not now restrict access." Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir. 1989) (internal quotation marks omitted) (affirming district court's ruling to that effect). Similarly, the District Court for the Eastern District of Virginia held, "[O]nce the government opens up the property for expressive activity, it will be deemed to have created a designated public forum, even if that was not its original intent." Warren v. Fairfax County, 988 F. Supp. 957, 962 n.5 (E.D. Va. 1997). See also Giglio v. United States, 405 U.S. 150, 154 (1972) (holding that where the United States Attorney's office was totally ignorant of its agents' activities and deceptions, the Government still remained responsible for any and all of their actions); United States v Perez, 956 F. Supp 1046, 1053 (D. P. R. 1997) ("To satisfy Congressional intent, district courts should not view a failure to exercise reasonable diligence, inconvenience, and even some hardship on the part of the government as grounds for tolling the limitations period."); In re: The Department of Energy Stripper Well Exemption Litigation Reserves Group, Inc., 520 F. Supp. 1232, 1273 (D. Kan. 1981), rev'd on other grounds, 620 F.2d 1375 (Temp. Emer. Ct. App. 1982) ("Ignorance should never be a shield for governmental executives or employees in a democratic form of government.").

In conclusion, the trial court erred in ruling that the City's Web page was not a designated public forum. Although the City had no obligation to open its Web page to an entire class of speakers, once it had done so, it could not change its purpose for invidious reasons. In addition, the City's lack of knowledge that Corder had designated the Web page as a public forum was not a valid reason for the trial court to label it a non-public forum. Accordingly, this Court should hold the City's Web page to be a designated public forum.

II. ALTERNATIVELY, SHOULD THIS COURT DEEM THE CITY OF COOKEVILLE'S WEB PAGE TO BE A NON-PUBLIC FORUM, THE CITY'S DENIAL OF A LINK TO THE PUTNAM PIT WAS UNCONSTITUTIONAL VIEWPOINT DISCRIMINATION
 

Even were this Court to find that the City's Web page is a non-public forum, the City's denial of a link to The Putnam Pit was unconstitutional viewpoint discrimination.

Non-public forums enjoy constitutional protection, although to a lesser extent than that offered to traditional or designated public forums. According to the Supreme Court, public access to public property which is not by tradition or designation a forum for public communication is governed by different standards. Perry, 460 U.S. at 46. The Supreme Court recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Id. (citation omitted). The Court stated that in addition to time, place, and manner regulations, a governmental entity may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Id. (citation omitted) According to the Court, "`"[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated."'" Id. (citations omitted).

In the case at bar, once the trial court determined that the City's Web page was a non-public forum, it found that the City could properly deny The Putnam Pit a link because "The very definition of a non-public forum allows the City to exclude the plaintiffs on the basis of subject matter and speaker identity." Putnam Pit, 23 F. Supp.2d at 831. Amicus does not dispute that in a non-public forum, a city can properly engage in reasonable classifications based on the content of speech or the identity of speakers. Perry, 460 U.S. at 49. However, the Supreme Court has specifically held that any classifications based on subject matter and speaker identity, even in a non-public forum, must be viewpoint neutral. Cornelius, 473 U.S. at 806 (1985).

The trial court did not address this issue of viewpoint neutrality in its decision. The trial court briefly considered The Putnam Pit's argument that it "was not linked because the city employee/decision maker deemed the publication controversial." Putnam Pit, 23 F. Supp.2d at 832 (citations omitted). The trial court found that argument to be without merit, reasoning that:

[a]lthough the avoidance of controversy is not a valid ground for restricting speech in a public forum, a nonpublic forum by definition is not dedicated to general debate or the free exchange of ideas. The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.
 

Putnam Pit, 23 F. Supp.2d at 832 (emphasis added) (citing Cornelius, 473 U.S. at 811). It appears that the trial court merely assumed that the City's denial of a link to The Putnam Pit was viewpoint neutral, without further explanation. The trial court erred in failing to find that the City's actions violated principles of viewpoint neutrality.

Even were this Court to ignore Corder's actions of initially opening the City's Web page to the entire public,(7) Shipley's policy of allowing links only to sites that promoted industry, tourism, and the economic welfare of the City of Cookeville was not viewpoint neutral. Shipley explained the basis for his policy as follows:

Let me tell you why, in my opinion, the City has a web page. It is to give information on the Internet about the city. It is not a public forum for people to express their opinions. It is not a public bulletin board for people to advertise their businesses. I didn't know what a link was. I just - when we set out to establish a web page, I thought it was a good idea. It will put us out there on the Internet so people might see Cookeville. We might get a business out of it. We will promote the lakes around the area, just our general community. I didn't think about a local link, but I do not think it is a public forum for anything. I think it is a bulletin board about the City of Cookeville. "Here we are."
 

Putnam Pit, 23 F. Supp.2d at 831-832 n.9 (emphasis added) (citing Dep. of Shipley, p. 57). Shipley states that his purpose in creating the Web page was not to allow people to advertise their businesses or to express their opinions, but rather to give people information about the City. However, the sites that are currently linked to the City's Web page, e.g., Cookeville Center of Nashville State Technical Institute, Tennessee Technological University, and Upper Cumberland Virtual Community, contradict Shipley's explanation of the purpose of the site. Notably, the Upper Cumberland Virtual Community is dedicated to advertising businesses. The site lists golf courses, hotels, movie theaters, and apartments for rent; the site also specifically asks visitors, "Want to add your business or organization to this site?".(8)

It is evident that the City grants links only to Web pages that are pro-Cookeville, regardless of whether they are a business entity. The three sites currently linked from the City's Web page, along with The Putnam Pit, all deal with the topic of "Cookeville." Shipley believes that the Cookeville Center of Nashville State Technical Institute, Tennessee Technological University, and Upper Cumberland Virtual Community help Cookeville by showing that the City is a desirable place to visit. On the other hand, Shipley believes that The Putnam Pit is controversial and does not promote the City (Dep. of Shipley, pp. 54-55).Shipley admitted that The Putnam Pit contained information about Cookeville, just like the "virtual community" Web page (Dep. of Shipley, p. 58). Shipley distinguished between the two sites by stating that the virtual site gave "general information for the visitor" about Cookeville, while The Putnam Pit did not (Dep. of Shipley, p. 58). Because Shipley admits that The Putnam Pit discusses Cookeville, like the other linked Web pages, and that he denied it a link because he dislikes its message, the City engaged in unconstitutional viewpoint discrimination.(9)
 

The case Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 387-388 (1993), is analogous to the case at bar. In that case, an evangelical church called "Lamb's Chapel" challenged a school district's decision to deny use of school facilities to show the church's film series on Christian family values. Prior to the church's request to show the film, the facilities had been used for other allegedly religious purposes. Id. On appeal to the Supreme Court, the church argued that the property had become a public forum because the district had opened its property to outsiders for some purposes. Id. at 391. The Supreme Court ultimately held that the school district's refusal to show the films was unconstitutional. Id. at 394.

The Supreme Court stated that "There is no question that the District, like the private owner of property, may legally preserve the property under its control for which its dedicated." Id. at 390 (citing Cornelius, 473 U.S. at 800). The Court also asserted that "it is also common ground that the District need not have permitted after-hours use of its property" for anyone. Id. at 391. Additionally, despite the church's argument, the Supreme Court declined to address the issue of whether the school district had created a public forum. Rather, the Court ruled that even if the property was a non-public forum, and received the lowest amount of constitutional protection under the public forum doctrine, the district still violated the First Amendment by engaging in viewpoint-based discrimination. Id. at 391-392.

The Court found that the fact that all religions and all uses for religious purposes were treated alike by the district was not the critical question. Instead, the Court characterized the issue as whether the district improperly permitted school property to be used to show all views about family issues and child-rearing except those from a religious standpoint. Id. at 393. The Court explained, "The subject matter is not one that the District has placed off limits to any and all speakers . . . The film series involved here no doubt dealt with a subject otherwise permissible . . . and its exhibition was denied solely because the film dealt with the subject from a religious standpoint." Id. at 393-394. The Court thereby found that the district violated the First Amendment because it suppressed the church's point of view on an "otherwise includible subject." Id. at 394 (citing Cornelius, 473 U.S.at 806).

Just as the Supreme Court in Lamb's Chapel found that the school district had violated principles of viewpoint neutrality regardless of whether the school facilities were a non-public forum, the City in this case engaged in viewpoint discrimination that is unconstitutional regardless of whether the City's Web page is a non-public forum. In Lamb's Chapel, the school district allowed its schools to show films about family issues and child-rearing from all views except religious ones. Similarly, in this case, the City of Cookeville granted a link to every Web page that dealt with the topic of "Cookeville," except The Putnam Pit's Web page, which, although dealing with "Cookeville," was found to be too controversial. This Court should follow the Supreme Court's holding in Lamb's Chapel and find that the City improperly suppressed The Putnam Pit's "point of view on an 'otherwise includible subject.'" Id. at 394 (citation omitted).

The trial court holding confuses content neutrality and viewpoint neutrality.(10) Presumably, had the City instituted a policy allowing links to Web Pages that limited their subject-matter to "Cookeville," such a policy would be constitutional under Cornelius and Lamb's Chapel. Those cases hold that a government may properly engage in reasonable classifications based on the content of speech. Indeed, it makes sense that the City of Cookeville would want to limit its Web page to the topic of "Cookeville;" the City has no interest in providing links to Web pages which provide information about other cities. The City of Cookeville, however, acknowledges that The Putnam Pit, like the other Web pages linked from its homepage, is limited to the subject of Cookeville. Because the only reason that the City denied The Putnam Pit a link was because of its identity and controversial viewpoint, the trial court erred in failing to find that the City engaged in impermissible viewpoint discrimination.

Finally, Amicus notes the distinction between a governmental Web page and a private company's Web page. If a private company, such as America Online, Inc. ("AOL"), had denied The Putnam Pit a link to its home page, The Putnam Pit could not claim such a denial constituted unacceptable viewpoint discrimination. A private company can freely choose upon whom to grant a link and could exercise viewpoint discrimination if it so chooses. Such a situation is inapposite to the case at bar, because unlike the City's Web page, no state action exists with a private company. SeeCyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, 441-445 (E.D. Pa. 1996) (holding that because AOL was not a state actor, AOL could not be considered a public forum under the First Amendment); CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1025-1026 (S.D. Ohio 1997) (holding that the public forum doctrine and the First Amendment would not apply to CompuServe's actions because it was a private company, not the government). It is undisputed that the City in this case is a state actor and its actions are subject to the public forum doctrine. As such, any viewpoint discrimination by the City is strictly prohibited.

In sum, even if the City's Web page is held to be a non-public forum, the City exhibited an unconstitutional bias toward The Putnam Pit. Accordingly, the trial court's decision to summarily dismiss the issue of The Putnam Pit's right to be linked should be reversed.

CONCLUSION

As outlined in the foregoing discussion, despite the fact that the City's Web page has not been a historical site for assembly and debate, it is inherently a place where assembly and debate occur. As such, this Court should find that the City's governmentally created Web page is a traditional public forum. Alternatively, should this Court find that the City's Web page is not a traditional public forum, this Court should declare the Web page to be a "designated public forum." The City initially granted links to every site that requested one. Although the City was not obligated to open its Web page to the public, once it did so, it could not deny a link to The Putnam Pit solely because of its controversial viewpoint. Finally, even were this Court to hold the City's Web page to be a non-public forum, the City was still prohibited from engaging in viewpoint-based discrimination by denying a link to The Putnam Pit. Accordingly, Amicus asks this Court to reverse the trial court's decision granting summary judgment to the City on the issue of The Putnam Pit's right to be linked to the City's Web page.
 

Respectfully submitted,
 
 
 
 
 

Jane E. Kirtley

Bradley E. Lerner

Counsel of Record for

Amicus Curiae

Reporters Committee for

Freedom of the Press

1101 Wilson Blvd. Suite 1910

Arlington, Virginia 22209

January 20, 1999

CERTIFICATE OF SERVICE





I certify that on the ____ day of January, 1999, I served the foregoing Brief of Amicus Curiae The Reporters Committee for Freedom of the Press in Support of the Appellants upon the following counsel of record, by causing to be deposited a true copy thereof in the United States mail, postage prepaid, in an envelope addressed to them:
 

Samuel J. Harris

Harris Law Firm

Attorney for Plaintiffs-Appellants

9 S. Jefferson

Suite 206, P.O. Box 873

Cookeville, TN 38503
 

John C. Duffy

Watson, Hollow & Reeves

Attorney for Defendants-Appellees

800 S. Gay Street

Suite 1700 Plaza Tower, P.O. Box 131

Knoxville, TN 37901
 

__________________

Jane E. Kirtley, Esq.

Return to The Putnam Pit

Other 'cookie case' documents

1. Amicus notes that besides the two sites Shipley mentioned in his deposition, the Cookeville Center of Nashville State Technical Institute was also linked from the City's Web page as of January 5, 1999.

2. See David J. Goldstone, The Public Forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?), 46 Hastings L.J. 335, 359 (1995) ("[The] public forum doctrine should be tailor-made for the envisioned high-tech Hyde Park.").

3. The Internet has been defined as a "decentralized means of global communication that links people, schools, corporations, libraries, governments and organizations." James V. Dobeous, Rating Internet Content and the Spectre of Government Regulation, 16 J. Comp. & Infor. L. 625, 630 (1998) (citations omitted). In the Internet, communications can be sent almost instantaneously to other individuals or groups through cyberspace, which is defined as the "conceptual location of the electronic interactivity available using one's computer." Id. The best known way to communicate over the Internet is through the Web, which can be used to transmit and access text, sound, pictures, and video images. Id. at 631. Documents containing such information do not reside at any one location, but instead are stored on servers around the world. Information on the Web can be obtained through a "Web-browser. Id. (citations omitted). Hypertext links, such as the one requested by The Putnam Pit, are a signature characteristic of the Web. The ability to jump from one page to another through hypertext links makes the Web "exciting and attractive to viewers." Mark Sableman, Link Law: The Evolving Law of Internet Hyperlinks, Newsletter of Media Law and Defamation Torts Committee, A. B. A. Tort and Insurance Practice Section, Summer 1998, at 1.

4. See also Carey v. Brown, 447 U.S. 455, 461 (1980) (holding that regulation of speech in a traditional public forum must pass muster under a strict scrutiny analysis).

5. See David J. Goldstone, The Public Forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?), 46 Hastings L.J. 335 (1995) ("No case or law review article known to the author has attempted to construe the "government fiat" phrase").

6. Jim Shipley, the City manager and the person who created the policy limiting access to the City's Web page, testified that he disliked the viewpoint of The Putnam Pit. Shipley stated,

"I think the stories are slanted" (Dep. of Shipley, p. 43). Shipley further testified that he thinks that The Putnam Pit is negative because "it distorts the truth, slants the truth, [and] gives Mr. Davidian's opinions about what has happened" (Dep. of Shipley, pp. 44, 60).

7. The trial court decided that the City's Web page was a non-public forum based in part upon the fact that Corder, the employee originally given authority over the site, was unauthorized to allow links to the site. For further discussion of Corder's ability to designate the City's Web site as public forum, see Issue I, supra at 19-21.

8. Upper Cumberland Virtual Community, available at http://www.cookeville.midtenn.net/

9. Notably, the trial court fails to question Shipley's opinion that The Putnam Pit does not promote economic welfare in the City of Cookeville (Dep. of Shipley, pp. 54-55). According to the trial court's opinion, "The plaintiffs' opinion [that The Putnam Pit promotes the City of Cookeville] is irrelevant where the defendants have acted reasonably in denying the plaintiffs a link from the City's web page and where the plaintiffs' goals are incompatible with the City's web page of promoting tourism, economic welfare, and industry in Cookeville." Putnam Pit, 23 F. Supp.2d at 831-832. Amicus disagrees. The issue of whether The Putnam Pit's Web page promotes the City is a question of fact for the jury. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (holding that in order to prevail on a summary judgment motion, the moving party bears the burden of proving the absence of a genuine issue of material fact). Many people might consider the City a more desirable place to visit if it granted a link to a "watchdog" publication like The Putnam Pit. Indeed, potential tourists and consumers might find it refreshing that the City embraces criticism and is open to differing viewpoints.

10. Several courts have commented on the oft confusing distinction between content neutrality and viewpoint neutrality. In Baugh v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir. 1990), the Fourth Circuit explained the distinction:
 

Viewpoint neutrality is not equivalent to content-neutrality and the difference between the two concepts is critical in a first amendment analysis. In determining whether a statute is content-neutral, courts should focus only on the operation of the . . . [regulation] in relation to the status of the speech without regard to the identity of the speaker.
 

Id. at 443-444 (citations omitted). See also Amato v Wilentz, 753 F. Supp. 543, 553 (D.N.J. 1990), vacated, 952 F.2d 742 (3d. Cir. 1994) (holding that "[i]t is important to note the distinction between content and viewpoint. Content refers to the topic or matter treated in a particular work. Viewpoint refers to one's opinion, judgment or position on that topic.").