The idea that the City of Cookeville was being viewpoint neutral in this
case is indeed difficult to swallow. The viewpoint that Cookeville is a good
place for business is just that, a viewpoint. A refusal to link to websites
that suggest that the City government is corrupt, and presumably therefore
that the City is not such a great place for business, is viewpoint
discrimination. If the topic is economic development in the City, then the
Putnam Pit speaks germanely to the topic by pointing out that corruption may
be inhibiting development. Prohibiting such speech that is germane to a
chosen topic is indeed viewpoint discrimination rather than viewpoint
neutral content regulation.
Perhaps then the circuit court is backing off on what it decided in the
first appeal. A government has the right to put forward its message,
including in this case a message that promotes Cookeville's economic
development. The City's website should be seen as the City's speech. Thus,
unless the City's website is a forum of some kind, viewpoint discrimination
is permissible. In effect, a finding that the City's policy was to link only
to persons who put forward such a positive message is a finding that the
City had its own message that it wanted to put forward on its website. The
City then had no obligation to assist The Putnam Pit in putting forward a
different message.
Mark Scarberry
Pepperdine
-----Original Message-----
From: John Noble
To: [EMAIL PROTECTED]
Sent: 9/11/03 12:01 PM
Subject: content-neutral viewpoint discrimination?
Putnam Pit was a website devoted to exposing alleged corruption in
Cookeville TN. Cookeville's City Manager refused to provide a link
from the City's website to Putnam Pit, first on the ground that it
would only link to non-profits, and then when Putnam converted to a
non-profit, by establishing a policy that it would only link to
websites that promoted the City.
United States Court of Appeals, Sixth Circuit.
THE PUTNAM PIT, INC., Geoffrey Davidian, Plaintiffs-Appellants,
v.
CITY OF COOKEVILLE, Jim Shipley, in his official capacity as City
Manager of
the City of Cookeville, Tennessee, Defendants-Appellees.
No. 01-6599.
Aug. 20, 2003.
OPINION
COLE, Circuit Judge.
*1 Plaintiffs Geoffrey Davidian and his publication, The Putnam Pit,
appeal the jury verdict for Defendants City of Cookeville, Tennessee
and City of Cookeville City Manager Jim Shipley in this civil rights
action based on Defendants' refusal to create a hyperlink from
Defendants' website to The Putnam Pit website. After this Court
concluded that a genuine issue of material fact existed as to whether
Defendants had violated Plaintiffs' First Amendment rights by
discriminating against Plaintiffs solely because of their viewpoint,
we remanded for a trial on this issue. After trial, a jury returned a
verdict for Defendants, finding that The Putnam Pit did not meet the
City of Cookeville's eligibility criteria for obtaining a hyperlink.
As a result, the jury did not reach the question of whether
Defendants had discriminated against Plaintiffs based solely upon
Plaintiffs' viewpoint. The district court denied Plaintiffs' renewed
motion for judgment as a matter of law. For the reasons described
below, we AFFIRM the district court's judgment.
* * *
Viewing this evidence in the light most favorable to Defendants and
giving Defendants the benefit of all reasonable inferences, as we
must in reviewing the denial of a motion for judgment as a matter of
law, we find that reasonable minds could render a verdict for
Defendants on the question of whether The Putnam Pit website met
Cookeville's criteria. Although Davidian testified that his website
met the criteria, City Manager Shipley testified that it did not.
From the substantial evidence of what the subject matter of The
Putnam Pit included, the jury was free to conclude, as it did, that
The Putnam Pit did not promote economic welfare, commerce, and
tourism of the Cookeville area.
The jury was only required to decide whether Cookeville discriminated
against Davidian's Putnam Pit solely on the basis of the viewpoint it
expresses if it concluded that The Putnam Pit met the eligibility
criteria established by Cookeville. Thus, the jury did not reach this
question. Because we hold that the jury's finding that The Putnam Pit
website was not eligible under the City's criteria was supported by
the evidence, we need not address whether Cookeville denied a link to
The Putnam Pit solely on the basis of viewpoint.
[END QUOTE]
Does anyone else find it difficult to divorce the eligibility
criteria -- that the website must promote economic welfare, commerce,
and tourism of the Cookeville area -- from the issue of viewpoint
discrimination?
John Noble
