Linking Public Websites to the Public Forum
R. Johan Conrod
Kaufman & Canoles
As published in Virginia Law Review, Vol. 87, pp. 1007-1044, September 2001
In 1999, a Virginia city removed an online newspaper's link to its official city website because it was unhappy with critical coverage it had received in the newspaper. A dozen other links of television and radio news stations, newspapers, and various other sites of local interest, however, were allowed to remain.
The online newspaper chose not to sue the city, primarily because a concurrent advertising campaign caused hits on its website to increase, not decrease, in the aftermath of the city's action, thus clouding the damages issue. Yet even though this particular incident did not end up before a judge or jury, it raised key First Amendment issues that are certain to confront courts in the years to come. The Virginia city?s actions appear to violate, at the very least, broad restrictions on viewpoint discrimination. But they also raise questions about the proper framework for analysis of First Amendment claims in cyberspace.
While the architecture of the Internet, at least as it has existed until now, generally supports free speech without the need for litigation, increasing governmental presence on the web will continue to collide with the expressive ideals of cyberspace. Already the legal system is struggling to deal with key constitutional questions in the Internet context, such as the ability of legislators to restrict ac-cess to certain websites by public employees and the freedom of website hosts in general to provide content without facing censorship.
This Note will confront a small part of this kaleidoscope: the First Amendment issue of how to apply traditional free speech forum analysis to publicly-owned and operated websites.
Part I will outline the traditional forum analysis jurisprudence, profiling the three types of forums generally recognized by federal courts: the public forum, the designated (or limited) public forum, and the nonpublic forum. It will describe the evolution of this doctrine and attempts by the Supreme Court to adapt the analysis to modern technologies.
Parts II and III will outline the application of free speech doctrine to the Internet. Part II will summarize the Supreme Court's decision to apply First Amendment protection to the Internet in Reno v. ACLU. Part III will summarize and analyze the reasoning in the sole federal appellate court decision applying forum analysis to a publicly-owned website, a decision concluding that city-owned websites are generally nonpublic forums.
Part IV will suggest an alternative result. This Part will argue that the architecture of the World Wide Web and the role of links on a public website present a better analogy to the public forum. Essentially, "links-speech" is a revolutionary form of speech that avoids almost all of the traditional justifications for speech regulation, even those justifications approved in the public forum context, such as the unwilling listener and the limited capacity problem. 8 Thus, this Part will conclude that links-speech is not incompatible with the intended use of almost any public website. Since the fundamental question of forum jurisprudence is whether the speech at issue is "compatible" with the intended use of the forum---and since links, due to their revolutionary nature, are always compatible with public websites---links on public websites should receive the highest level of protection possible within the forum analysis framework: recognition that the website is a public forum.
Part V will conclude that such an outcome is compatible with the policies underlying public forum doctrine, in particular, concerns that persons without vast financial resources be able to reach broad audiences. This further suggests that the public forum outcome is in harmony with the expression-enabling goals commentators have laid out for the Internet.
Number of Pages in PDF File: 38
Date posted: November 15, 2003
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