First Circuit Protects Municipal Website Content As Government Speech


First Circuit Protects Municipal Website Content As Government Speech: Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009)

A citizens rights group, Epping Residents for Principled Government (“ERPG”), recently lost its First Amendment challenge of the Town of Epping, New Hampshire’s refusal to link ERPG’s website with the Town’s website. ERPG, an advocacy group, promotes reduced governmental spending and views itself as “a perennial thorn in the Town’s side.” In Sutliffe v. Epping School District, the United States Court of Appeals for the First Circuit held that the Town’s website was government speech and not a public forum. As such, the Court held that the municipal website was not subject to First Amendment scrutiny.

The dispute revolved around the choice by the Town’s Board of Selectmen to place a hyperlink to a website operated by Speak Up, Epping! (“SUE”) on the Town’s website. At the time, SUE, part of a state-wide program facilitated by the University of New Hampshire Cooperative Extension, was preparing to sponsor a public discussion event in Epping. The purpose of the Town-endorsed event was to foster community spirit, civic discourse, and the organization of community projects and action groups. The Town intended for the hyperlink to help promote the upcoming SUE event.

In response to the Town’s hyperlink to the SUE website, ERPG requested that its own website be similarly linked. The Town then requested information from ERPG, such as its mission statement and certain financial documents, with which to make a decision on ERPG’s request. Instead of providing the requested information, ERPG filed a civil rights suit against the Town in the United States District Court for the District of New Hampshire.

During the course of litigation, the District Court dismissed many of ERPG’s claims against the Town based on principles of standing and res judicata. The Town moved for summary judgment on ERPG’s remaining claims, which alleged that the Town had violated ERPG’s First Amendment right to free association by requesting information from ERPG before making a decision on whether to place a hyperlink to ERPG’s website on the Town website. Such inquiry, ERPG alleged, was intended solely to harass and intimidate ERPG members. Further, ERPG alleged that its First Amendment right to free speech was violated when the Town refused ERPG’s request for a hyperlink while maintaining the SUE hyperlink. Such conduct, alleged ERPG, constituted viewpoint discrimination with respect to a designated public forum, i.e., the Town website. The District Court granted the Town’s motion for summary judgment, and this appeal followed.

Upholding the District Court decision, the First Circuit (Lynch, J.) rejected ERPG’s characterization of the Town’s website as a “public forum.” The Court held that the website, controlled by the Town without public input, was nothing more than government speech. Pursuant to the government speech doctrine, the Court held that the Town was free to fashion and communicate its message to the public unfettered by First Amendment scrutiny, even if it used a third-party entity to do so. See Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009). A government entity is entitled to speak for itself and to select the views that it wants to express, even when it receives assistance from private sources in exercising such rights. The Court concluded that the Town, by espousing and communicating certain viewpoints, was in fact exercising its rights to free speech, not infringing upon those of ERPG. Moreover, the Court disposed of ERPG’s viewpoint discrimination claim with the simple observation that ERPG failed to introduce any evidence to support that SUE had expressed any particular viewpoint.

Interestingly, the First Circuit was careful to limit its holding to the facts of this case, leaving open the possibility that a municipality may run afoul of the First Amendment in the operation of a municipal website. Even more, the First Circuit hypothesized that a Town that opens its website to private speech in such a way that the Town loses control of the website’s content may not enjoy protection under the government speech doctrine. So, municipal webmasters beware: while the Sutliffe decision stands for the proposition that municipalities may freely communicate and even promote governmental points of view through their websites, allowing such a website to become a forum for public discourse may implicate free speech principles under the First Amendment. Municipalities are advised to work with counsel to craft a formal policy with respect to website content and, if third-party viewpoints are to be included, viewpoint-neutral selection criteria.