Take Away: One more addition to the scrutiny given to public entities such as school districts, municipalities and other political subdivisions, and government agencies arises from requests by individuals or groups for a “link” to their site FROM the “official” page of the public entity. If you allow it, many more will follow; but can you legally say no? This article will help your public entity prepare to meet those requests.
Legal Problems of “Links”
When you use a link, your computer contacts that address and downloads for your viewing a copy of the web page it finds there. So, as a result of the technology, you are in a sense "copying something" as you surf the web. That technical convenience has created some of the legal issues regarding web linking that relate to copyright and trademark infringement. Those legal issues are extensive and complicated, and are very tied to the individual facts of a certain use - and are not the subject of this comment.
As with any 'publication', a web site can also be used to defame or libel, interfere with business relationships, or do other things that cause damage to persons that can be the subject of a lawsuit. There are specific Federal and State laws that regulate web activity, particularly as it regards children, and these subjects are likewise beyond this comment. What we will focus on is whether or not "free speech" rights under our Constitution apply to create a citizen's right to have his or her web page linked on a government web site.
Free Speech has Limits
Among the protections of our freedom found in the First Amendment to the US Constitution ("Am. 1") is the right of "free speech". That right covers not only the ability of someone to speak, but also the right of citizens to access certain places and media to make their opinions known to others. For example, in Colonial times, the so called "pamphleteers" were protected in passing out anonymous flyers criticizing the government. In our time, we have seen the requirement for "equal time" on radio and television for political parties and candidates. So, the right to a "forum", i.e., a place or a medium to air opinions, is protected under our Constitution.
As with most rights, there are limits and responsibilities that go along with the right to free speech. Courts over the years have recognized that there are different places (forums) where people might like to air their opinions, and so there are different rules for the different places. Obviously, ownership has something to do with that analysis - you are not, for example, required to allow someone to make a speech in your backyard! However, another part to the analysis is precedent - whether or not you have allowed people to use your property or media for the expression of opinions.
When it is the government that owns the property or the media (such as a website), these principles still apply – but because the public is the ultimate “owner”, the reasons must be clearer and the analysis more careful before a member of the public is denied access. Because government agencies and political subdivisions are ultimately owned by the public, they must be very careful to understand and provide for the rights of citizens, while fully understanding their own rights and their limits.
Various “Forums” exist for Free Speech
A “public forum”, such as a public park, is hard to close to public speech. Courts have held that only reasonable “time, place and manner” restrictions can be imposed, and persons can never be excluded from public forums on the content of their speech. The reasonable restrictions that are allowable are for public safety and health, and so that the speakers do not impinge on the rights of others – such as by playing loud music in the park during sleeping hours (Ward v. Rock against Racism, 491 U.S. 781 (1989))
Sometimes, government agencies will open a forum for speech on a “semi-public” basis, which in law is called a “limited” forum. A good example is allowing the use of an auditorium in a government building when it is not being used for regular business. In many ways, this limited forum distinction is what is codified in Ohio law in allowing the use of school buildings for community events, etc., when it does not interfere with the operation of the school. (O.R.C. 3313.76 and 3313.77) This type of access can be more restrictive, in that those in charge of the facilities may make regulations, specify times, require insurance, and other limitation, but the access must still be largely “content neutral”. This is because the government agency knowingly and purposefully opened the forum for public use.
There Are NON-Public Forums
The final “category” is property or media that are not public forums. There are places in government property and media controlled by the government that have never been opened to the public for their use. In most cases, to open such places or media would have a detrimental influence on getting the mission accomplished that the government agency exists to carry out. If the government has a “track record” of not allowing public access to a certain place or medium, and if that restriction is reasonably related to the government purpose, then the public can be excluded.
City Web Page; Public Forum or Not? The Putnam Pit Case
This principle went to court, as it applies to web pages owned by government entities, in a case entitled Putnam Pit, Inc. v. City of Cookeville. (76 Fed. Appx. 607 (6th Cir. Tenn. 2003), 2003 U.S. App. LEXIS 17775. The very brief facts are that the owner of the “Putnam Pit”, a “newspaper” and web site dedicated to finding and publicizing scandalous news about the government, requested that a link to their website be placed on the official City of Cookeville page. The City denied the request, stating that "the standard for web links was that [the linked website] must promote the economic welfare, industry, commerce, and tourism in the local area to be linked to the web site." Prior to this request, the City had been allowing private businesses to have a link on the page, and the Mayor stopped that practice as well – as part of demonstrating that the website had a limited purpose.
The Court held that the City could exclude the Putnam Pit from its website, in these words:
“The city of Cookeville's policy, in addition to being reasonable in light of the city's interest, must also be viewpoint neutral. Although 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. Therefore, while the city may restrict use to those who participate in the forum's official business, it may not do so based on viewpoint. In other words, (Putnam Pit) has no entitlement to a link to the city's Web site, however, he may not be denied one solely based on the controversial views he espouses, without regard for the forum's purpose and structure.” Id. at 612 (emphasis added)
So, as said before, the critical exception that allows a government agency to exclude a certain web link is when that link is not in keeping with the purpose and structure of what the government agency is trying to accomplish by means of the website. That is what a school district will have to show in court to support their denial of web linkage to a requestor. In this case, the City was able to show that regardless of the Putnam Pit’s extreme views, it was their lack of relevance to the government’s mission and not their viewpoint that made their link unsuitable for the page.
Some Things You Can Do; Policies and Procedures
So – what can a public entity do to properly prepare to handle such requests?
First, it IS possible to make a policy that the government entity does not link to ANY outside site. That is, of course, the safest route to avoid challenges, but it eliminates a lot of the ease of use for a user who can otherwise speedily find relevant links.
A more reasonable approach is something like what the City of Crooksville decided; to make a policy that states what the purpose of the website is, how it is intended to support the mission of the district, and what constraints will be placed on all content and all web links. This should start with a statement in Board policy, at the highest level, and be carried through all of the entity’s acceptable use policies, instructions on web authorship, and even be repeated on the website itself.
An important thing to show a court, if a requestor complains about not receiving a web link on the government page, is that the government entity never opened the web site to public opinion or public use. This says to the court that the entity did not intend that a public or semi-public forum be created. The government entity can then go on to show the court that web links are placed on the pages because of their “fit” with the mission stated in policy, and NOT because of a determination about their political or other viewpoint.
A final method of protection is to have a disclaimer statement either on the links page, or as a “clickthrough” that pops up before the user is taken to an outside site. This is a good idea on multiple levels, not just as a rationale against outside requests. Web pages are capable of instant and constant revision, and it is entirely possible for highly objectionable material to replace acceptable content without the government entity’s knowledge.
Such disclaimers, as in these samples from school districts, might say:
The district is not responsible for the content of outside links. Linked sites are not under the control of the school district, its agents or employees. The school district is not responsible for the contents of any linked site, any link contained in a linked site or any changes or updates to such sites. The school district provides links as a convenience, and the inclusion of any link does not imply endorsement of the site by the school district. The school district reserves the right to restrict any links to sites containing inappropriate, obscene, sexually explicit, or other material that is inconsistent with the mission of the school district or outside the scope of permissible uses as articulated in board policy
Or, the same information can be bulleted for better graphic look:
You are about to leave the Official _______ Local School District Website.If you choose to follow this link, please note that:
- The views and information or opinions expressed on this web site do not necessarily represent the views of the ________Local School District.
- The District does not control and cannot guarantee the relevance, timeliness or accuracy of the materials on the linked sites
- The link is provided for user convenience, and the link does not imply District endorsement or approval of the material or the responsible party
Board or agency policy should contain (at a minimum) this sentence, in the general policy covering the website:
Because the District is not opening a public or limited public forum by providing web services, the District retains the right, in the sole discretion of designated personnel, to control the content of the web pages it hosts.
And finally, guidelines to web authors should contain something like the following, as should the acceptable use policy:
Subject Matter — All subject matter on School District Web pages and their links must relate to curriculum and instruction, school-authorized activities, or information about the District or its mission. The district website is not open as a forum for public opinion. Staff or student work may be published only as it relates to a class project, course, or other school-related activity. Students, staff, or other individuals may not use the district's web pages or links to provide access to their personal pages on other servers, online services, or to any site not deemed consistent with the District’s mission.
If you desire more information on this topic, the following links may be helpful:
http://www.linksandlaw.com/ (a good general site)
http://www.llrx.com/features/internetwaves.htm (specifically about public website links)
http://www.linksandlaw.com/decisions-14.htm (the Court’s decision in “Putnam Pit” – the case referenced in this article)
http://en.wikipedia.org/wiki/Hyperlink (Wikipedia article on linking; broad overview but includes legal aspects)
http://www.cybertelecom.org/ip/link.htm (copyright/trademark legal aspects of linking)