Federal panel reinstates challenge to city’s denial of hyperlink

Thursday, July 20, 2000

Cookeville, Tenn., officials may have engaged in impermissible
viewpoint discrimination when they refused to establish a hypertext link from
the city’s Web site to the Web site of a small, free tabloid paper, a federal
appeals court panel ruled yesterday.

Geoffrey Davidian, editor and publisher of The Putnam Pit, has written numerous pieces in his
paper on alleged government corruption. Over the past few years, Davidian has
made extensive requests for various public records.

In July 1997, Davidian requested a copy of the computer files of
outstanding parking tickets issued by the city. The city did not provide the
files in electronic format, but gave Davidian a hard copy.

In October 1997, Davidian requested that the city allow a hyperlink
from its Web site to
The Putnam Pit‘s
site. The city denied the request.

Later that month, Davidian sued in state court, contending that both
the failure to provide computer files and the failure to allow a hyperlink
violated the First Amendment. The city asked that the case be moved to federal
court, where it was dismissed in September 1998 by U.S. District Judge Thomas
A. Higgins.

On appeal, however, a three-judge panel of the 6th U.S. Circuit Court
of Appeals reinstated part of the suit.

The panel first addressed Davidian’s claim that the First Amendment
required Cookeville officials to provide him with access to city parking ticket
records in electronic form.

The panel rejected this claim, writing: “Davidian has no First
Amendment right to government information in a particular form, as long as the
information sought is made available as required by the First Amendment.”

The panel noted that “there is no indication in the record that access
to parking ticket records in electronic form had ever been allowed by the

However, in its decision yesterday in The
Putnam Pit v. City of Cookeville
, the panel did reinstate
Davidian’s claim with respect to the denied hyperlink.

At the time Davidian requested the link, the city had established
links to several organizations, both for-profit and nonprofit, including a
local technical college, two Internet service providers, a law firm, a local
computer club and others.

The city’s computer operations manager decided the matters on a
case-by-case basis, since the city had no stated policy on granting links.

When Davidian requested the link, Operations Manager Steve Corder
notified City Manager Jim Shipley of the request.

Corder testified in deposition: “Mr. Davidian and the Putnam Pit are a
very controversial topic and I did not feel it would be in my own personal best
interest to make the decision to or not to link the Putnam Pit to our Web

After learning of Davidian’s request, Shipley restricted links from
the city’s Web site to nonprofit organizations only. When Davidian asked
whether he could obtain a link if he changed his business to nonprofit, Shipley
said no.

Davidian argued that the city had created a public forum on its Web
site by establishing links to various organizations. The panel disagreed,
finding that the city’s Web site was a non-public forum.

“Cookeville has not provided open access to links to the city’s site,
whereby anyone could set up their own link from the city’s site to an outside
Web site without going through the city on a one-by-one basis,” the panel

Even in a non-public forum, however, the First Amendment prohibits
discrimination based on viewpoint.

According to the panel, the circumstances of the denial of Davidian’s
request for a link raise genuine issues of material fact preventing dismissal
of the lawsuit.

The panel wrote that the “implementation of these policies suggests
viewpoint discrimination.”

The panel concluded: “The city’s actions, some of which appear to be
tied to the city’s interests, and others which appear less clearly relevant to
the purpose of the city’s Web site, lead us to reverse the district court’s
grant of summary judgment because Davidian has raised a material issue of fact
regarding whether the city discriminated against him and his Web site based
upon viewpoint.”

Calls to attorneys on both sides were not returned.

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