Judge denies Internet publisher's right to a link on city web page

TENNESSEE–A federal district court judge in Nashville held in late September that an Internet publisher had no First Amendment right to have a link to his World-Wide Web site on an official city web site.

The City of Cookeville allowed entities to have links on its World-Wide Web page if they promoted “economic welfare, tourism, and industry” in the City. Geoffrey Davidian, publisher of an on-line newsletter called The Putnam Pit, claimed that he was improperly prevented from linking onto the web site. Davidian argued that the web page constituted a public forum, while the city claimed that its site should be characterized as a non-public forum. The Putnam Pit, which is published in Cookeville, offers commentary on the city’s government.

The district court held that the city’s web page was not a traditional public forum. “It is clear that unlike public streets and parks, web pages on the Internet have not by long tradition or government fiat been devoted to assembly and debate; nor has the City’s web page immemorially been held in trust for the use of the public,” the court ruled.

Moreover, the court found that the city had not created a designated public forum, noting that the city had the prerogative to allow selective links to its web page.

In finding that the web site was not a designated public forum, the court relied on the city manager’s opinion that the link limitation was intended to comport with the purpose of the web page, which was to “promote tourism, economic welfare, and industry” in Cookeville. According to the court, “It is clear that the City has done ‘no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, ‘obtain permission’ to use it.'”

The court determined that the city’s subject-matter limitation was reasonable “in light of the disruptions to the City’s ability to communicate its own messages if it were required to allow any and every other operator of a web site to be linked to the City’s web site.”

The court noted that there were alternative channels for Davidian to spread his message. According to the court, The Putnam Pit web site could be easily accessed on the Internet if users simply entered the term “Cookeville, Tennessee” at a web search site. The court stated that the “denial of a link from the City’s web page does not result in the plaintiffs having no medium or access points through which to spread their message.”

The court also dismissed Davidian’s argument that he had a First Amendment right to see the “cookie” files located on the hard drives of public employees’s computers. “Cookies” are messages that a Web site can be programmed to save on a user’s computer, usually to store data that will be used on future visits to the same site. The court held that the First Amendment does not provide the media with a constitutional right of access to information not generally available to the public, and the public has no traditional right to inspect records of Internet usage on city computers.

After dismissing the federal claims, the court decided not to extend its discretionary jurisdiction over the remaining state law question as to whether the computer files should be disclosed under the state open records law, and so dismissed that claim as well.

Davidian filed suit against the city after being denied permission to include a link to his page on the city’s web site and being denied access to public employees’ computer files. Davidian wanted to see the files to determine whether the employees were visiting pornographic and other non-work related sites on taxpayers’ time. (The Putnam Pit, Inc. v City of Cookeville; Media Counsel: Sam Harris, Cookeville)