by James Fessler and E. Kenneth Friker

In this day and age of computer technology, your library’s website is one of your most important resources in providing information to your patrons.  Your website contains a plethora of information, including a calendar of events, hours of operation, policies and procedures and an online catalog, to name a few.  Is your library’s website also a public forum subject to First Amendment scrutiny?  A recent decision by the United States Court of Appeals for the First Circuit, Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009), held that your library’s website is probably not a public forum, but that you have to be careful so that it does not become one.

In Sutliffe, a municipal board decided to place a hyperlink connecting the municipality’s website to the website of a state-wide program facilitated by the state university which was preparing to sponsor a public discussion event in the municipality.  The purpose of the public discussion event, which was sponsored by the municipality, was to foster community spirit, civic discourse, the organization of community projects and the organization of action groups.  The municipality intended for the hyperlink to help promote the public discussion event.

In response, a citizens’ rights advocacy group, which promoted reduced governmental spending and viewed itself as “a perennial thorn in the [municipality’s] side” requested that its own website be similarly linked.  In order to make a decision, the municipality requested information from the advocacy group, such as its mission statement and financial documents.

Instead of providing the requested information, the advocacy group filed suit against the municipality in the United States District Court.  The advocacy group alleged, among other things, that the municipality violated its First Amendment right to free association by requesting information before making a decision regarding the hyperlink; a request allegedly intended solely to harass and intimidate the advocacy group.  The advocacy group alleged that its First Amendment right to free speech was violated when the municipality refused to place its hyperlink on the municipal website while maintaining the state-wide program hyperlink; conduct allegedly constituting viewpoint discrimination with respect to a designated public forum, namely the municipal website.  The District Court entered summary judgment in the municipality’s favor, and the advocacy group appealed.

On appeal, the First Circuit affirmed the District Court.  First, the First Circuit rejected the advocacy group’s characterization of the municipal website as a public forum.  The Court held that the municipal website was nothing more than government speech where it was controlled by the municipality without public input.  Citing the United States Supreme Court’s decision in Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009), the Court held that, under the government speech doctrine, the municipality was free to fashion and communicate its message to the public unfettered by First Amendment security, even if it used a third party entity to do so.

The Court continued stating that a governmental entity, such as a public library, is entitled to speak for itself and to select the views that it wants to express, even when it receives assistance from private sources in exercising these rights.  By espousing and communicating certain viewpoints, the Court concluded that the municipality was, in fact, exercising its right to free speech and not infringing upon those of the advocacy group.

It must be noted, however, that the Court carefully limited its holding to the facts of the case, thereby leaving open the possibility that a governmental entity may run afoul of the First Amendment in the operation of its website.  Moreover, the Court hypothesized that a governmental entity that opens its website to private speech in such a way that it loses control of the website’s content may not enjoy protection under the government speech doctrine.

LIBRARY WEBMASTERS BEWARE:  While Sutliff stands for the proposition that governmental entities, including public libraries, may freely communicate and even promote governmental viewpoints through their websites, free speech principles under the First Amendment may be implicated if your website becomes a forum for public discourse.  Libraries are advised to consult counsel and draft a formal policy with respect to website content and viewpoint neutral selection criteria if third party viewpoints are to be included.

 E. Kenneth Friker and James W. Fessler are partners with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park.  The firm concentrates in the representation of local libraries, Library Districts and Library Systems, as well as other local governmental units.

Published June 23, 2010 in vol. 4, iss. 12 [View]