The Ninth Circuit's decision in Children of the Rosary v. Phoenix, written by retired Justice White, seems on point here. Children of the Rosary wanted to put an ad that said "Choose Life" on a city bus. The city said the policy was to accept only commercial advertising, so the group changed the ad to "Choose Life -- buy this bumpersticker." The city again turned down the ad and then turned down a similar ad from the ACLU. Both groups sued, and the 9th circuit ruled for the city, saying content discrimination was permissible in the non-public forum of city buses (other circuits have reached different conclusions about the status of buses, depending on the facts), and that only accepting commercial messages is not viewpoint discrimination. Judge Noonan filed an interesting dissent, noting among other things that this policy would allow power companies to encourage the use of electricity but forbid the Sierra Club from encouraging stewardship of resources, and would allow pro-choice people to promote abortion services but forbid anti-choice people from promoting alternatives to abortion.
The Cookeville case seems to go further than Phoenix's, since the policy required promotion, which seems clearly to be viewpoint-based, as Mark and John have pointed out. So even if one accepts Children of the Rosary, Cookeville seems misguided. John T. Parry Associate Professor of Law University of Pittsburgh School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 412-648-7006 -----Original Message----- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Thursday, September 11, 2003 8:38 PM To: [EMAIL PROTECTED] Subject: Re: content-neutral viewpoint discrimination? 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
