Sutliffe et a l . v. Town of Epping CV-06-474-JL 11/13/08 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Thomas Sutliffe and Epping Residents for Principled Government, Inc.
v. Civil No. 06-CV-474-JL Opinion No. 2008 DNH 198 Town of Epping et a l .
O R D E R
The plaintiffs, Epping Residents for Principled Government,
Inc. ("ERPG") and its chairman, Thomas Sutliffe, claim that the
Town of Epping violated their rights under the First Amendment by
its handling of their request to place a link to ERPG's website
on the Town's homepage. The defendants, who include the Town,
its Board of selectmen, and current and former members of the
Board who have been sued in their official and individual
capacities, move for summary judgment. They argue, among other
things, that they reasonably handled the plaintiffs' request to
link their site to the Town's homepage, a nonpublic forum.
This court, which has jurisdiction over this matter under 28
U.S.C. § 1331 (federal question), heard oral argument on the
defendants' motion on November 12, 2008. For the foregoing
reasons, the court grants the motion for summary judgment. I. STANDARD OF REVIEW
Summary judgment is appropriate where the "pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). In making this determination, the "court
must scrutinize the record in the light most flattering to the
party opposing the motion, indulging all reasonable inferences in
that party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d
15, 19 (1st Cir. 2003). The following facts are set forth in
accordance with that standard.
II. BACKGROUND
The Town began operating its homepage in 1998, offering
information about its various boards and committees, including
the times of their scheduled meetings. From time to time, the
homepage has contained links to other websites, including those
of other government agencies, e.g., the State of New Hampshire,
School Administrative Unit 14, and Epping Middle-High School, as
well as some civic organizations, e.g., the New Hampshire
Municipal Association and the Exeter Area Chamber of Commerce.
The record contains no evidence as to how the links to any of
these sites came to be placed on, or removed from, the Town's
2 homepage, though it is undisputed that this could be accomplished
only with the approval of the Board of Selectmen.
Beginning in early 2007, the homepage included a link to the
website of "Speak Up, Epping!," an event organized to promote
civic discourse and involvement in the Town through a "community
profile" program. This program, which has run in a number of
other New Hampshire municipalities, was facilitated by the
University of New Hampshire Cooperative Extension as part of its
research into the characteristics of a "healthy community." The
program entails a day-long discussion among a broad cross-section
of the Town's residents, organized around what the Extension has
identified as ten qualities that contribute to a healthy
community. This discussion is intended to result in a re
energized community spirit, increased citizen involvement,
community-defined projects and action groups, and a complete
record of the event.
After learning the details of the community profile program
from Extension staff, a small group of Epping citizens formed a
steering committee for the "Speak Up, Epping!" event. At the
committee's urging, the Town's Board of Selectmen agreed in
August 2006 to pay the Extension a $500 fee to cover the costs of
its role in facilitating the event; the Town and the Extension
later entered into a memorandum of understanding as to that and
3 other details. The committee provided reports of its progress to
the Board of Selectmen, including a memorandum in December 2006.
This memorandum explained the purposes of the "Speak Up, Epping!"
event, as set forth above; identified the members of the steering
committee; attached a draft agenda for the event; and noted that
preparation of a budget to guide fundraising was underway.
The memorandum also explained that the committee had begun
work on getting word of "Speak Up, Epping!" out to the community
in a number of ways, including the use of the Town's homepage
"for general outreach," and indicated that the committee's
chairman would contact the Town administrator to that effect.
The administrator subsequently allowed the placement of a link to
the "Speak Up, Epping!" website from the Town's homepage because,
as he later explained, the Board of Selectmen had endorsed it.
In early 2007, the "Speak Up, Epping!" site consisted of an
abbreviated version of the December 2006 memorandum provided to
the Board of Selectmen--in essence, as the co-chair of the
steering committee later testified, "what's going on, when is it
happening, what our objective was . . . sort of the generic stuff
you would put up there to get people to come to something."
The "Speak Up, Epping!" event took place as scheduled on
April 14, 2007, at the Epping Middle-High School. The
Cooperative Extension's report of the event, which is some fifty-
4 five pages long, reflects a broad range of views on an equally
broad range of topics, as expressed by the citizens who took
part. These include the ostensibly competing views that the Town
should "control taxes," and that there is "not enough funding"
for various municipal programs, both identified as "key issues."
But the event involved no advocacy on behalf of any political
candidate or, as the steering committee co-chair testified, "for
any political issues at all . . . we were very, very strong about
not bringing politics into it because we felt that would be a
turnoff" to participation.
Following the "Speak Up, Epping!" event, the steering
committee once again reported to the Board of Selectmen on, among
other things, the amount of money the committee had raised and
how that money had been spent. By August 2007, the "Speak Up,
Epping!" website contained a list of the various working groups
formed at the event, together with the times and places of their
upcoming meetings and an upcoming potluck supper, as well as a
link to the report of the event on the Extension's website and a
message of appreciation to those who had participated.
Based on the appearance of a link to this version of the
"Speak Up, Epping!" website from the Town's homepage, Sutliffe
wrote to the Board of Selectmen, requesting that a link to the
website of his organization, ERPG, also be placed there. ERPG
5 describes itself as "a taxpayers group that has opposed certain
expenditures in Epping which the group deems to be excessive and/
or wasteful" and, more colorfully, "a perennial thorn in [the
Town's] side opposing its profligate spending." But the summary
judgment record contains no evidence as to ERPG's point of view
on any particular issue.
In response to Sutliffe's request, the selectmen asked ERPG
"to provide a mission statement, list of members, meeting dates,
financial statements, and information as to how residents may
join" to enable "a side-by-side comparison" between ERPG and
"Speak Up, Epping!" The purpose of this comparison, the
selectmen stated, was to ensure "that each group is non-political
in nature, and does not endorse any candidates." In making this
decision, one of the selectmen noted that he had visited the ERPG
website, which he characterized as "very political" and
containing "attacks [on] individuals" and "hateful editorials."1
This selectman commented that "although he agreed with many of
the ideas [on the ERPG site], he thought it was used to address
political issues," while the "Speak Up, Epping!" site reflected
"a lot of residents who are working together to make Epping a
better place and no political information was included." There
1 This selectman has not been named as a defendant here.
6 is no other evidence in the record as to the content, at any
time, of the ERPG site, www.EppingNoSpinZone.com.2
Sutliffe balked at the Board's request, demanding that it
provide "a copy of the written policy that establishes the
Board's AUTHORITY to ask for the information" and "a copy of the
meeting minutes where the Board of Selectmen requested this same
information from the 'Speak up Epping' [sic] group." After two
months had passed with no response from the Board, Sutliffe and
ERPG moved to amend their complaint in this action to claim that
the Town, the Board, and certain of its members had violated the
plaintiffs' rights under the First Amendment by the defendants'
demand for information in response to the plaintiffs' request to
place the link on the Town's homepage.3
The Board of Selectmen subsequently adopted a written
"Website Policy." This document notes that the Town maintains
2 The phrase "No Spin Zone," of course, is generally associated with Fox News political commentator Bill O'Reilly.
3 This action, which had been pending for nearly a year at that point, also asserted claims by Sutliffe, ERPG, and others that the Town, the Board of Selectmen, the School Board, and other local officials had violated the plaintiffs' rights under the First Amendment and equal protection clause by denying them access to other fora, v i z ., taxpayer-funded mailings and similar communications which local officials used to express their official views on particular budget items. The court dismissed these claims for lack of standing or as barred by res judicata and collateral estoppel by the outcome of prior proceedings in the state courts. Sutliffe v. Epping Sch. Dist., 2008 DNH 076.
7 its "official website to provide citizens, businesses, and
visitors with information about Town programs, services,
projects, issues, events, public meeting documents and
activities." The policy states that the website will therefore
include information only on those events and programs that are coordinated and/or sponsored by the Town of Epping. The Town Website will also contain links to selected local, state and federal government agencies.
The Town has acknowledged in its discovery responses in this case
that it previously had no written policy regulating the content
of its website. At some point after the "Speak Up, Epping!"
event, the link to its website was removed from the Town's
homepage at the request of the steering committee's co-chairman.
III. ANALYSIS
"Nothing in the Constitution requires the Government freely
to grant access to all who wish to exercise their right to free
speech on every type of Government property without regard to the
nature of the property or to the disruption that might be caused
by the speaker's activities . . . . Accordingly, the extent to
which the Government can control access depends on the nature of
the relevant forum." Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 799-800 (1985) . The defendants argue that
the Town's homepage is a nonpublic forum to which they can constitutionally restrict access "based on subject matter and
speaker identity so long as the distinctions drawn are reasonable
in light of the purpose served by the forum and are viewpoint
neutral." I d . at 806. Because, the defendants say, they acted
reasonably and viewpoint neutrally in asking ERPG to provide
certain information when it asked to access the homepage, they
did not violate the plaintiffs' First Amendment rights.4 The
plaintiffs, however, assert that the defendants' request offends
the Constitution in three respects: (1) it does not survive
strict scrutiny, which applies because the website is actually a
public forum, (2) because it was put to the plaintiffs, but not
"Speak Up, Epping!," it amounts to unconstitutional viewpoint
discrimination in any event, and (3) the request itself threatens
the plaintiffs' First Amendment right of association.
The plaintiffs raised this third theory in their second
amended complaint, citing Gibson v. Florida Legislative
Investigation Committee, 372 U.S. 539 (1963), and Bates v. City
of Little Rock, 361 U.S. 516 (1960). As the Supreme Court
reaffirmed in those cases, "'compelled disclosure of affiliation
4 The defendants also argue, in the alternative, that the Town's homepage--including the link to the "Speak Up, Epping!" site--is the Town's "own speech and therefore is exempt from First Amendment scrutiny." Johanns v. Livestock Mktq. Ass'n, 544 U.S. 550, 552 (2005). For reasons which will appear, the court need not reach this argument.
9 with groups engaged in advocacy may constitute an effective
restraint on freedom of association,’" given that
"'[i ]nviolability of privacy in group association may in many
circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident
beliefs.'" Gibson, 372 U.S. at 544 (quoting NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449, 462 (1958) (internal bracketing and
ellipses omitted)); see also Bates, 361 U.S. at 523.
But the plaintiffs do not even mention this theory in their
objection to the defendants' summary judgment motion, so any such
claim is waived. See, e.g., Rocafort v. IBM Corp., 334 F.3d 115,
121 (1st Cir. 2003). Moreover, to prevail on a claim that
compelled disclosure of membership information violates its
members' associational rights, an organization must show,
"typically, that enforcement of the disclosure requirement will
result in harassment of current members, a decline in new
members, or other chilling of associational rights." United
States v. Comlev, 890 F.2d 539, 544 (1st Cir. 1989) . The record
contains no evidence to that effect. The court now proceeds to
consider the plaintiffs' other two theories.
10 A. Public or nonpublic forum
First Amendment law recognizes three types of fora: the
traditional public forum, the public forum created by government
designation, and the nonpublic forum.5 Cornelius, 473 U.S. at
802 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 45 (1983)). "Traditional public fora are those
places which 'by long tradition or by government fiat have been
devoted to assembly and debate,'" like public streets and parks.
I d . (quoting Perry, 460 U.S. at 45). As the plaintiffs concede,
the Town's homepage does not fit this category. See Putnam Pit,
Inc. v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000)
(ruling that, because municipal website did "not allow for open
communication or the free exchange of ideas between members of
the public," it was not a traditional public forum).
Instead, the plaintiffs argue, the Town's homepage amounts
to a designated public forum, i.e., "public property which the
State has opened for use by the public as a place for expressive
activity," triggering strict scrutiny of any restrictions on
5 Though some courts have drawn a further distinction between a "limited" and a "non-public" forum, the court of appeals has indicated that the same standard of scrutiny for restrictions on speech applies regardless. Ridley v. Mass. Bay Transp. A u t h ., 390 F.3d 65, 76 n. 4 (1st Cir. 2004). Consistent with Ridley, the parties make no effort to distinguish the concepts of "limited" and "non-public" fora, and this court follows suit.
11 speech there. Perry, 460 U.S. at 45. "The Supreme Court has
repeatedly held that the government must have an affirmative
intent to create a public forum in order for a designated public
forum to arise." Ridlev, 390 F.3d at 76. The government's
intent depends on its "policy and practice" as to the forum as
well as "the nature of the property and its compatibility with
expressive activity." Cornelius, 473 U.S. at 802. The
government's "explicit expressions about intent" are also
relevant, though not dispositive. Ridlev, 390 F.3d at 76.
The defendants have adopted an official "Website Policy"
announcing that the Town's homepage exists "to provide citizens,
businesses, and visitors with information about Town programs,
services, projects, issues, events, public meeting documents and
activities" and that, as a result, its content is limited to
"those events and programs that are coordinated and/or sponsored
by the Town of Epping." While, as the plaintiffs emphasize, this
policy had not been formalized prior to this litigation, it is
nevertheless direct evidence that the defendants did not intend
to open the homepage as a public forum. "The past history of
characterization of a forum may well be relevant; but that does
not mean a present characterization about a forum may be
disregarded." Ridlev, 390 F.3d at 77. Indeed, the defendants
12 maintain that, all along, they used the homepage "to provide
information to the citizenry of the Town on Town business."
Of course, such "a statement of intent contradicted by
consistent actual policy and practice would not be enough" to
preserve the nonpublic nature of a forum. Ridlev, 390 F.3d at
77. But the defendants' policy and practice of hyperlinking
other sites to the Town homepage strongly supports their position
that they did not intend to turn it into a public forum. Links
could be placed there only with the approval of the Board of
Selectmen; so far as the record reveals, this approval was
granted in only a handful of cases in a nearly ten-year period.
See Perry, 460 U.S. at 37 (finding no public forum where access
was never "granted as a matter of course to all who seek to
distribute material," but had to be sought on an ad hoc basis).
Moreover, it appears to have been granted only to Town
agencies or civic organizations, consistent with the stated
purpose of the homepage.6 "[T]he government does not create a
designated public forum when it does no more than reserve
eligibility for access to the forum to a particular class of
speakers, whose members must then, as individuals, 'obtain
6 At oral argument, the plaintiffs were not able to come up with any example of a link that was placed on the website in contravention of this policy, other than, they argued, the "Speak Up, Epping!" link.
13 permission' to use it." Ark. Educ. Tel. Comm'n v. Forbes, 523
U.S. 666, 679 (1998) (quoting Cornelius, 460 U.S. at 679).
The plaintiffs suggest that the defendants deviated from the
stated purposes of the homepage when they allowed a link to the
website of "Speak Up, Epping!," which they characterize as an
"outside private group[] whose views the Town favors." Putting
aside the principle that "[o]ne or more instances of erratic
enforcement of a policy does not itself defeat the government's
intent not to create a public forum," Ridlev, 390 F.3d at 78, the
plaintiffs' characterization of "Speak Up, Epping!" is off the
mark. "Speak Up, Epping!" was neither "outside" nor "private"
nor, for that matter, even a "group." It was an event, conducted
as part of a statewide program of the state university, paid for
in part by public funds, held on public property, and, so far as
the record indicates, open to participation by any Epping
citizen. This event was intended to foment a re-energized
community spirit, increased citizen involvement, and community-
defined projects and action groups in the Town. These generic
civic-minded objectives fit comfortably within the announced
purposes of the Town homepage. See Perry, 460 U.S. at 47 (ruling
that a school district had not transformed its internal mail
system into a designated public forum by allowing a labor union
representing the district's teachers, plus "some outside
14 organizations such as the YMCA, Cub Scouts, and other civic and
church organizations to use the facilities").
Two different courts of appeals, in fact, have ruled that
government websites did not become designated public fora even
though non-governmental organizations were permitted to post
links to their own websites there on an ad hoc basis. See Page
v. Lexington County Sch. Dist. One, 531 F.3d 275, 285 (4th Cir.
2008); Putnam Pit, 221 F.3d at 844. The court in each case
emphasized the fact that third parties could not simply place
links to their websites on the government's in the fashion of an
Internet message board, but needed specific authorization to do
so from the government, which always retained full control over
the content of its own site. Page, 531 F.3d at 284; Putnam Pit,
221 F.3d at 844. The courts also pointed out that, other than
the links to these other websites, the government homepage
contained no information supplied by, and enabled no
communication among, third parties using it. Page, 531 F.3d at
284; Putnam Pit, 221 F.3d at 844. The same is true here.7
7 The plaintiffs argue that the outcome in Page relied solely on the determination that the website in question amounted to government speech--a question the court here does not reach, see note 4, supra. But the court in Page went further, specifically ruling that the government there "did not create a limited public forum by including links to other websites." 531 F.3d at 285. And, even if Page could be read as limited to the government speech doctrine, it does not follow that some of the
15 Page and Putnam Pit are convincing applications of the
general principle that "[s]elective access, unsupported by
evidence of a purposeful designation for public use, does not
create a public forum." Cornelius, 473 U.S. at 805. They also
demonstrate that, even though the Internet as a whole or certain
kinds of websites individually are highly compatible with
expressive activity, the same cannot be said of a municipal
homepage that exists chiefly as a resource for information about
the municipality, Putnam Pit, 221 F.3d at 844, as opposed to "a
type of 'chat room' or 'bulletin board' in which private viewers
could express opinions or post information," Page, 531 F.3d at
284. Even where "there is nothing inherent in the property which
precludes its use for some expressive activity," that does not
rule out that "particular expressive activity may be inconsistent
with the nature of the property." Ridlev, 390 F.3d at 77. This
court agrees with the Fourth and Sixth Circuits that, while
municipal homepages often serve as avenues for the government to
communicate information about the municipality, they do not, at
facts the court considered in applying the doctrine there, i.e., the government's purpose in maintaining the homepage and its ultimate control over its content, do not also suggest that the homepage was not a public forum. See Ariz. Life Coal, v. Stanton, 515 F.3d 956, 965 (9th Cir.) (endorsing "who controlled the speech" and "the purpose of the program" as factors in government speech inquiry), cert, denied, 77 U.S.L.W. 3197 (2008) .
16 least in that format, naturally lend themselves to a forum for
public discussion. So neither the defendants' "policy and
practice" nor "the nature of the property and its compatibility
with expressive activity" suggests their intent to create a
public forum in the homepage.
Rather than addressing this established test for a
designated public forum, the plaintiffs argue that the homepage
is one because "[c]ourts will infer governmental intent to create
a public forum if the government permits some voices to be heard
yet excludes others, without having established clear standards
for inclusion and exclusion designed to prevent interference with
the forum's designated purpose." As is clear by now, the
inference is actually to the contrary--permitting "some voices to
be heard" but not others is in fact one of the hallmarks of a
nonpublic forum, i.e., selective access. Forbes, 523 U.S. at
679-80; Cornelius, 473 U.S. at 804-05; Perry, 460 U.S. at 49.
The plaintiffs' lone authority for their view is the
dissenting opinion in Ridlev, which stated that "[c]ourts will
hold 'that the government did not create a public forum only when
its standards for inclusion and exclusion are clear and are
designed to prevent interference with the forum's designated
17 purpose.'"8 390 F.3d at 105 (Torruella, J., dissenting) (quoting
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio
Reg'1 Transit Auth., 163 F.3d 341, 351 (6th Cir. 1998)).9 But
the source of this quotation, the Sixth Circuit's decision in
United Food, does not actually cite any cases that deemed a forum
nonpublic due to the absence of "clear standards" for exclusion.
Indeed, United Food itself relies solely on a Third Circuit
decision that recognizes, simply, "the fact that the government
has reserved the right to control speech without any particular
standards or goals, and without reference to the purpose of the
forum, does not necessarily mean that it has not created a public
forum." Christ's Bride Ministries, Inc. v. Se. Pa. Transp.
A u t h ., 148 F.3d 242, 251 (3d Cir. 1998). But it does not follow
8 At oral argument, the plaintiffs also relied on Aids Action Comm, of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994), in support of this view. As the court of appeals explained in Ridlev, however, it declined to reach the public forum question in AIDS Action, so that case "does not assist plaintiffs on the claim that [defendants] ha[ve] created a public forum." 390 F.3d at 80.
9 At oral argument, the plaintiffs described this statement as emanating from the "concurring part" of Judge Torruella's opinion in Ridlev. But the statement at issue in fact comes from Judge Torruella's dissent from the majority's ruling that the MBTA had not created a public forum. 390 F.3d at 97. His only concurrence was with the majority's ruling that the MBTA had engaged in viewpoint discrimination. I d . at 96. Since, as Judge Torruella pointed out, this ruling obviated any need for forum analysis, i d ., he would not, in the course of concurring with that ruling, have discussed the test for a nonpublic forum.
18 from this proposition that the absence of standards means that
the government has created a public forum, as the court there
explicitly acknowledged.10 See i d .
This is true not only as a matter of logic, but experience.
A government would generally have no reason to go about drawing
up "clear standards" of access to a forum unless intending to
open the forum to the public. But under the plaintiffs' proposed
rule, such inaction, while wholly justified, transforms
government property into a public forum the moment some non
10 As the court in United Food observed, "[w]hen the government merely reserves the right to exclude a speaker 'for any reason at all' or 'without reference to the purpose of the forum,' the potential for government censorship is at its greatest." 163 F.3d at 352 (quoting Christ's Bride Ministries, 148 F.3d at 251). This concern, while valid, is appropriately taken into account by guarding against viewpoint discrimination in a nonpublic forum, rather than by enlarging the definition of a nonpublic forum in the way the defendants suggest. Belatedly, some Justices and commentators have criticized what they see as the circular nature of the Supreme Court's nonpublic forum analysis, arguing that it "make[s] nearly all restrictions on speech self-justifying, since the very fact that the government had denied the plaintiff access could be invoked to prove that the government never intended to create a public forum" and was therefore free to deny the plaintiff access. Laurence H. Tribe, American Constitutional Law § 12-24, at 996 (2d ed. 1988) (footnote omitted); see also Cornelius, 473 U.S. at 825 (Blackmun, J., joined by Brennan, J., dissenting). While this criticism has some force, the Supreme Court has adhered to the same formulation of the nonpublic forum test regardless, see Davenport v. Wash. Educ. Ass'n, 127 S. C t . 2372, 2381 (2007), and needless to say this court must do the same.
19 governmental speaker is allowed to use it.11 That is not the
law. "The government does not create a public forum by inaction
or by permitting limited discourse, but only by intentionally
opening a nontraditional forum for public discourse." Cornelius,
473 U.S. at 802. Indeed, the Court ruled in Perry that the
schools had not rendered their internal mail system a public
forum by granting access to outside groups, even though this was
done through ad hoc decisions by the school principals, rather
than upon any written or articulated policy. 460 U.S. at 48-49.
The lack of such a policy when the plaintiffs sought access
to the Town homepage, then, does not mean, or even imply, that it
was a public forum at that point. Moreover, while the defendants
concededly had no written or articulated policy, the undisputed
facts show that they were not controlling access based on whim or
caprice, but on consistent case-by-case judgments as to whether a
11 For example, a town would have no reason to devote its resources to developing "clear standards" for the kind of speech allowed in the men's room in the town hall. Under the plaintiffs' proposed test, however, the men's room becomes a public forum once the town allows a single speaker to engage in speech there, e.g., a public health group is permitted to hang a poster extolling the benefits of hand-washing. And this occurs, moreover, regardless of either the town's past policy and practice of restricting speech in the forum (it could have previously refused one hundred requests to hang political placards there) or, even more significantly, the nature of the forum and its compatibility with expressive activity. The plaintiffs' proposed test is plainly at odds with both Supreme Court precedent and common sense.
20 particular link would serve the mission of the homepage as source
of information about Town business. This practice was nothing
like "the incoherent written policies and the occasional,
subjective exercise of control" supporting the dissent's argument
for a public forum in Ridlev. 390 F.3d at 108. Under the
Supreme Court's established test for a designated public forum,
as just discussed, the homepage was nonpublic.
B. Reasonabless of the restriction and viewpoint discrimination
The plaintiffs' remaining arguments depend almost entirely
on their claim that they were required to supply information
about themselves before the selectmen would consider hyperlinking
ERPG's site to the Town homepage, while "Speak Up, Epping!" was
not. To start with, the court notes that this allegedly
differential treatment is not in and of itself the constitutional
affront the plaintiffs perceive. The Supreme Court has
repeatedly held that "[c]ontrol over access to a nonpublic forum
can be based on subject matter and speaker identity." Cornelius,
473 U.S. at 806; see also Davenport, 12 7 S. C t . at 2381; Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001);
Forbes, 523 U.S. at 682; Rosenberqer v. Rector & Visitors of
U n i v . of V a ., 515 U.S. 819, 829 (1995); Lamb's Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 392-93 (1993);
21 Perry, 460 U.S. at 49; Greer v. Spock, 424 U.S. 828, 838 (1976);
Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 (1974).
In other words, the First Amendment does not prevent
restricting speakers from a nonpublic forum based on who they are
or what they want to talk about. See Perry, 460 U.S. at 49
("Implicit in the concept of the nonpublic forum is the right to
make distinctions in access on the basis of subject matter and
speaker identity."). The only constitutional limit on such
exclusions, again, is that they "must not be based on the
speaker's viewpoint and must otherwise be reasonable in light of
the purpose of the property." Forbes, 523 U.S. at 682. The
restriction at issue here broke neither of these rules.
First, the restriction was reasonable in light of the
purpose of the forum, which the defendants describe, again, as
"to provide information to the citizenry of the Town on Town
business." When a municipality operates such a website, it has
"legitimate interests in keeping links that are consistent with
the purpose of the site--providing information about city
services, attractions, and officials," as well as "allowing a
relatively limited number of links to its site, so as to avoid a
cacophony of speakers which might drown out the city's
information." Putnam Pit, 221 F.3d at 845. And knowing the
mission, membership, and finances of a group wishing to hyperlink
22 its site to a municipal homepage reasonably serves these
legitimate interests, by providing at least a rough guide as to
the likely content of the group's own website and, therefore, its
compatibility with that of the Town's.
The existence of "substantial alternative channels that
remain open" to the plaintiffs besides the Town homepage further
supports the reasonableness of the defendants' actions. Perry,
460 U.S. at 53. After all, the plaintiffs maintain their own
website--they do not need to place their content on the Town's in
order to make it accessible via the Internet--and can presumably
place its link on other websites, disseminate it by e-mail, and
the like. "The reasonableness standard is not a particularly
high hurdle," Ridlev, 390 F.3d at 90 (citing Cornelius, 473 U.S.
at 808), and the defendants' actions readily clear it.
The plaintiffs do not question the legitimacy of restricting
the Town homepage to Town business, nor the reasonableness of
enforcing that restriction by requesting information from groups
wishing to link their sites to the Town's. Instead, relying on
the comments of certain selectmen in deciding to put that request
to ERPG, the plaintiffs argue that the operative restriction on
the content of the Town homepage is a ban on political speech;
because the ban is not limited to "explicit words of advocacy of
23 election or defeat of a candidate," the plaintiffs continue, it
is unconstitutional under Buckley v. Valeo, 424 U.S. 1 (1976).
As the Supreme Court has since explained, however, "Buckley
makes clear that the express advocacy limitation . . . was the
product of statutory interpretation" intended to avoid potential
vagueness and overbreadth problems in the restriction at issue
there, "rather than a constitutional command." McConnell v. EEC,
540 U.S. 93, 191 (2003). Because Buckley "nowhere suggested that
a statute that was neither vague nor overbroad would be required
to toe the same constitutional line," i d ., the Court in McConnell
refused to recognize "an inviolable First Amendment right to
engage in" political speech falling short of express advocacy,
i d . at 190. The defendants, then, did not transgress Buckley by
scrutinizing the plaintiffs' site for political content, as
opposed to merely express advocacy.12
12 The plaintiffs have not properly challenged the Town's website policy on vagueness or overbreadth grounds but, in any event, that challenge would be unsuccessful. In Ridlev, the court of appeals expressed serious doubt about whether these doctrines even applied to restrictions on speech in a nonpublic forum "where there are no consequences for submitting [speech for publication in the forum] and having it rejected" and therefore no potential chilling effect. 390 F.3d at 94. The court concluded that, in such a context, the vagueness doctrine imposes no additional hurdle on government restrictions of speech: they must simply be " 'reasonable in light of the characteristic nature and function' of that forum." Id. at 95 (quoting Griffin v. Sec'v of Veterans Affairs, 288 F.3d 1309, 1323 (Fed. Cir. 2002) ).
24 Furthermore, a ban on hyperlinks to political sites from the
Town homepage reasonably serves legitimate government purposes.
The Supreme Court has recognized that "avoiding the appearance of
political favoritism is a valid justification for limiting speech
in a nonpublic forum." Cornelius, 473 U.S. at 809. So the
defendants could have legitimately worried that linking the
plaintiffs' site to the Town homepage would have been construed
as an endorsement of their views to the exclusion of competing
ones. There is nothing in the record to dispute the suspicion of
certain selectmen that the plaintiffs' website was, in fact,
"used for political issues." Political discussions have a place,
of course, but the Town could have reasonably concluded that the
place was not the same website used to announce board meetings
and provide similar news about Town government.
This leads to the plaintiffs' viewpoint discrimination
claim. They charge that, rather than attempting to ensure that
the Town homepage remained non-political or restricted to
information on Town business, the defendants requested
information from the plaintiffs "to silence ERPG's views,
constituting unconstitutional viewpoint discrimination." But the
argument for this charge is not well-developed. It relies
principally on the notion that the government may not restrict
speech on the basis of content, which, again, is not so in a
25 nonpublic forum, see, e.g.. Perry, 460 U.S. at 49, as the
plaintiffs acknowledged at oral argument.
The plaintiffs' viewpoint discrimination argument also
relies on the allegedly more favorable treatment of "Speak Up,
Epping!," the site for which, the plaintiffs allege, the
defendants hyperlinked to the Town homepage "without any
preconditions and without reviewing any financial statements" of
the kind demanded of the defendants. It is true that, in the
government's control of a nonpublic forum, "underinclusiveness
raises a suspicion that the stated neutral ground for action is
meant to shield an impermissible motive," Ridley, 390 F.3d at 87,
but, in this case, there is no dispute that the defendants knew
essentially the same information about "Speak Up, Epping!" when
the link to its site was placed on the homepage as they later
requested of ERPG.
Before explaining that conclusion, however, the court pauses
to note, again, that the plaintiffs' theory seriously
misapprehends the nature of "Speak Up, Epping!" As discussed in
Part III.A, supra, "Speak Up, Epping!" was not an existing
organization that sought access to the Town homepage as a forum
for disseminating its views. It was a forum unto itself; all the
Town's citizens were invited to share their thoughts. Indeed,
despite their charge that the defendants "favored" the "views" of
26 "Speak Up, Epping!" over those of ERPG, the plaintiffs have not
even attempted to characterize--let alone provided any evidence
of--the differences between these viewpoints, and were not able
to articulate them at oral argument. This is understandable,
since the "viewpoints" embraced by the "Speak Up, Epping!" event
were the thoughts of everyone who attended. As one might expect,
and as the record bears out, these views were diverse, to the
point of including what appears to be ERPG's raison d'etre:
lower taxes. A viewpoint discrimination claim based entirely on
alleged favoritism toward speech that aligned with the
plaintiffs' would seem to carry the seeds of its own destruction.
Moreover, the "Speak Up, Epping!" event was endorsed by the
Board of Selectmen from the outset, when they voted to pay the
UNH Cooperative Extension's fee and enter into a contract with
that agency so that the Town could participate in the community
profile program. This conferred an "official" status on the
"Speak Up, Epping!" event which, as the Supreme Court has
recognized, alone serves to justify preferential access to a
nonpublic government forum. See Perry, 460 U.S. at 49
(overruling decision that a government had engaged in viewpoint
discrimination by allowing the designated teacher's union, but
not its rival, to access a nonpublic forum, reasoning that "it is
more accurate to characterize the access policy as based on the
27 status of the respective unions rather than their views"). That
"the Town neither developed the 'Speak Up, Epping!' message nor
controlled its content,"13 as the plaintiffs allege, does not
serve to diminish the event's official status: Perry rejected
the lower court's refusal "to consider [the union's] access
justified as official business because the School District did
not 'endorse' the content of its communications," reasoning that
"[t]he lack of an . . . endorsement does not mean that the
[union's] communications do not pertain to the 'official
business' of the [school d i s t r i c t ] 460 U.S. at 51 n.10.
In any event, the plaintiffs' claim of differential
treatment fails even on its own merits. In December 2006, before
the "Speak Up, Epping!" link had appeared on the homepage, the
Board of Selectmen had received a detailed memorandum from the
event's steering committee, identifying themselves, explaining
the purposes of the event, and outlining how the committee
intended to proceed with organizing it. This information enabled
the selectmen to determine, as they did, that placing the link
would effect the purpose of the website "to provide information
to the citizenry of the Town on Town business." It also enabled
13 Again, the plaintiffs have never been able to identify what that "message" was.
28 them to determine whether the "Speak Up, Epping!" event was
political in nature. The plaintiffs emphasize that the Board did
not receive detailed information about the event's finances until
after it had taken place, but this overlooks the fact that, in
the initial memorandum, the steering committee informed the Board
that preparation of a budget had just gotten underway and that
fundraising had yet to begin. So it is hard to imagine what any
"financial statements" produced at that juncture would have
showed, other than blank lines and columns of zeros.
Accordingly, there is no genuine issue of material fact that
the defendants asked ERPG for the same information, including as
to finances, that they had about the "Speak Up, Epping!" event
prior to hyperlinking its site to the Town homepage. There is
therefore no evidence to support the plaintiffs' theory that they
were discriminated against in their access to the homepage on the
basis of their point of view. C f . Ridley, 390 F.3d at 87-88
(finding that MBTA engaged in viewpoint discrimination against
would-be advertisers where its "rejection of t h e [] advertisements
does not reasonably serve its purported justification," in
addition to "direct evidence, through statements by MBTA
officials, that the reason for rejecting the advertisements was
actually distaste for [the plaintiff's] viewpoint"); Putnam Pit,
221 F.3d at 846 (remanding for consideration of viewpoint
29 discrimination claim where officials who refused plaintiff access
to municipal website had criticized his behavior and opinions).
The plaintiffs essentially conceded at oral argument that
they had no such evidence, apart from their contention that the
link to the "Speak Up, Epping!" site was allowed because it was
"benign" while the link to their site was scrutinized because it
was "political." But again, content discrimination in a
nonpublic forum does not violate the First Amendment--a point
which the plaintiffs also conceded, subject to their view, which
the court has already rejected, that the Town homepage was a
public forum due to the lack of "clear standards" for exclusion.
It is certainly not impossible that a self-described "thorn
in the side" of municipal government like ERPG runs the risk of
discrimination on the basis of its views. Indeed, "[s]uspicion
that viewpoint discrimination is afoot is at its zenith when the
speech restricted is speech critical of the government, because
there is a strong risk that the government will act to censor
ideas that oppose its own." Ridley, 390 F.3d at 86. Yet
standing alone, without evidentiary support, suspicion cannot
serve as the basis for a lawsuit. In the absence of any evidence
30 or even a coherent theory of viewpoint discrimination, the
defendants are entitled to summary judgment.14
IV. CONCLUSION
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 68) on the plaintiffs' claims
arising out of access to the Town homepage is GRANTED. Because,
following the court's ruling on the defendants' motion to dismiss
(document no. 62), these were the only remaining claims, the
clerk shall enter judgment accordingly and close the case.
SO ORDERED.
Dated: November 13, 2008
cc: Charles G. Douglas, III, Esq. Benjamin T. King, Esq. Daniel J. Mullen, Esq.
14 The plaintiffs' complaint--but not their objection to the summary judgment motion--makes reference to an equal protection claim. As discussed supra, the plaintiffs have thereby waived this claim, but, in any event, it fails for the same reasons their First Amendment claim fails. See Pagan v. Calderon, 448 F.3d 16, 36 (1st Cir. 2006).