By refusing to post a link on its Web site to a controversial newspaper, the court found a Tennessee city guilty of 'viewpoint discrimination'
By not providing a link to a World Wide Web site critical of its city, Cookeville, Tenn., officials were likely guilty of "viewpoint discrimination," the U.S. Court of Appeals ruled.
The panel of 6th Circuit judges ruled July 19 that a policy requiring linked sites to promote the city's tourism, industry and economic welfare gives "broad discretion" to city officials to discriminate based on viewpoint.
The case involves a California-based publisher, Geoffrey Davidian, whose free tabloid and Web page, The Putnam Pitt, (www.putnampit.com) has accused the city of various types of corruption, including the cover-up of a murder.
After Davidian requested that the city place a link on its site to his newspaper, the city created the policy preventing such a link. Davidian sued in 1997, claiming the policy violated the First Amendment by squelching his free speech.
The U.S. District Court for the Middle District of Tennessee rejected his arguments, but the Appeals court ruled otherwise, returning the case to District Court.
Although the appellate court said the "city's establishment of a policy to limit the pool of persons who might be linked to the city's Web page is reasonable," the manner in which the city did so was wrong.
The court found that the city did not link the site to Davidian's paper not only because it conflicted with the intent of the city site, but also because they did not like the opinions expressed in it.
Michael Geist, a University of Ottawa law professor specializing in Internet law said the case carries "a significant amount of weight," although he cautioned city officials that the decision does not mean that they must link to all sites that make such requests.
"The concern is that the government can cherry pick which sites to include or not include on the Web page based solely on your view of something," he said. If allowed to, Geist said, the government could use the site to further its political agenda, such as linking to anti-abortion Web sites.
In contrast to what Cookeville did, governments should "establish a policy first and apply it in an even-handed manner." If not, it's akin "to firing someone and then drawing up the rules about why afterwards," he said.
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