Court rejects free speech argument in upholding refusal to run outside group’s link on town Web site

The First Circuit Appeals Court ruled a New Hampshire town could refuse to post a link to a government watchdog group’s Web site on the town’s site, rejecting the argument that the town site was a public forum. -DB

Courthouse News Service
September 22, 2009
By Tim Hull

(CN) – The 1st Circuit rejected a free-speech challenge of a New Hampshire town’s refusal to post a link to a government watchdog group’s Web site on the town’s own site.

The Boston-based appeals court affirmed dismissal of a long-running case that pitted the Epping Residents for Principled Government against Epping, N.H. and its school board.

An advocate of low taxes and small government, the watchdog group has described itself as “a perennial thorn in (the town’s) side,” according to the ruling. It objected to the school district and town government’s alleged practice of promoting budgets and policies via newsletters, mailings and the Internet without giving opponents a chance to respond.

The district court ruled for the town in 2008, rejecting Epping Residents’ claim that the town’s refusal to link to the group’s Web site violated the group’s First Amendment rights.

Writing for the three-judge panel, Chief Judge Sandra L. Lynch also sided with the town, but on different grounds. She ruled that the town “engaged in government speech” by establishing a Web site and selecting which links to allow on it.

“The town created a Web site to convey information about the town to its citizens and the outside world and, by choosing only certain hyperlinks to place on that Web site, communicated an important message about itself,” she wrote.

Epping Residents argued that the town created a public forum when it refused to add the group’s link, but allowed a link to an event sponsored by the town and a state university.

This “showed that there were no clear standards for exclusion or inclusion of third-party links on its website,” thus establishing “a government intention to create a designated public forum in its Website,” the watchdog group argued.

But Lynch disagreed.

“The town’s Web site is obviously not a traditional public forum,” she wrote.
To call the site a public forum would “risk flooding the town Web site with private links, thus making it impossible for the town to effectively convey its own message and defeating the very purpose of the Web site,” Lynch added.

Such a reality, she wrote, “would force (the town) to open its Web site to private speech to such a degree that (it would be) unable to communicate its own message … thus, perversely, application of the forum doctrine in this case could lead to less, not more, speech.”

Copyright 2009 Courthouse News Service