Fourth Circuit to rule whether linking to a website opens a forum
Is a local school district that includes links on its Web site to promote positions it agrees with also obligated to link to Web sites that offer an opposing view? That's the question before the 4th Circuit Court of Appeals in a Columbia, S.C., lawsuit that seeks to set the proper balance in the Internet age between individual freedom of speech and government’s ability to limit political discourse. Randy Page, head of South Carolinians for Responsible Government, is asking the court to grant him the right to use Columbia's Lexington 1 school district’s communications system to promote taxpayer-funded home or private schooling. Page is appealing a federal district court's ruling last July that found Lexington 1 officials were within their rights when they refused to let him use the district's Web site, e-mail lists and other computer technology to push for school choice. The school district argues that it is not required to provide Internet links to Page’s group—or, more broadly, to any outside organization with viewpoints or political goals that clash with its own priorities. The Supreme Court and lower courts have long recognized as “government speech” the right of public officials and agencies to communicate a particular position without requiring an opposing perspective in every instance. But the rapid Internet expansion raises the question of whether governments can link to the Web sites of groups with which it agrees without also including links to groups that offer an alternative position.
David Duff, who represented Lexington 1 before the three-judge 4th Circuit panel during arguments, said a ruling requiring that Page's links be posted could dampen government agencies' willingness to make use of the Internet for fear of being forced to include opposing perspectives. The three-judge panel appeared to side with the school district during the hearing. Chief Judge Karen Hall said a hyper-link on the government Web site makes the link government speech. But Kevin Hall, Page's attorney, argued that the link wasn't government speech, but the “government broadcasting private speech.” Lexington 1 officials committed “viewpoint discrimination” against Page, Hall said, by linking their Web site to outside groups opposed to new school-choice options, but refusing to link to his group’s site. Fourth Circuit Judge Paul Niemeyer said Lexington 1 hadn’t created a public forum open to everyone by linking to sites that opposed a bill that would provide state funding to private schools. “They (Lexington 1 officials) did not invite opposition, and they didn’t want opposition, any more than the president of the United States wants opposition when he gives a speech supporting a certain policy,” Niemeyer said.
Niemeyer, though, expressed concern that Lexington 1 officials may have undercut its position by adding a disclaimer saying that opinions expressed at sites it linked to didn't represent official school district positions. Judges also questioned the decision by Mary Beth Hill, the Lexington 1 manager who oversaw its Web site, to link to the Web site of Choose Children First when it was actively opposing the school-choice bill—but then to remove the link after the group became more involved with other issues. Judges asked whether that kind of Internet management wasn’t more akin to refereeing a public debate than expressing a defined point of view. “The question we’re faced with is: Did (Lexington 1), wittingly or unwittingly, create a forum to which it would have to invite anyone?” Niemeyer said. Duff rejected that notion. “Yes, a Web site hyper-link can change—and, in fact, in this case did change,” he said. “That’s no different than if the government cites a hard-copy pamphlet, and later the writer changes the pamphlet.”
Source: McClatchy Newspapers, 3/24/08, By James Rosen
[Editor’s Note: The lower court decision on appeal to the Fourth Circuit (MD, NC, SC, VA, WV) is summarized below. NSBA, joined by the American Association of School Administrators, the National League of Cities, the National Parent Teacher Association, the National School Public Relations Association, and the state school boards associations of South Carolina, North Carolina, Virginia, and Maryland, submitted an amicus brief, also below, in support of the school district. The brief, written pro bono by Helen L. Norton, associate professor at the University of Colorado School of Law, argues three main points: (1) the government speech doctrine protects a school board’s use of public resources to communicate its own views on contested education-related legislation to the public; (2) a school district’s inclusion in its public communications of third-party materials that support its position on proposed legislation or other policy issues does not convert the board’s expression into a forum for private speech; and (3) the First Amendment poses no bar to school boards’ communication of their views on contested education-related legislation to the public, nor does it strip schools of the authority to limit access to their communication channels in order to ensure that such networks work effectively in support of schools’ educational mission. Voucher politics and legal niceties aside, in the 21st Century the notion that linking to an outside website either exposes a public entity to demands by other groups to have their sites linked or entails an ongoing obligation to monitor every such website would come as a shock to webmasters.]
NSBA School Law pages on Page v. Lexington County Sch. Dist. One
NSBA et al. brief