The following summary is based on an opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
The plaintiffs, members of Epping Residents for Principled Government, Inc. (ERPG), claimed that the Town violated their First Amendment rights to free speech by refusing to provide a link to the ERPG website on the Town’s website, while providing a link to “Speak Up, Epping!” Speak Up, Epping! was a civic event conducted on public property with public funds as part of a state-wide program sponsored by the University of New Hampshire (UNH). The plaintiffs claimed that the Town had designated its website as a “public forum” for exchange of ideas and information by allowing links to other groups. The U.S. District Court dismissed the case, holding that the Town website was not a designated public forum, but was limited to information about events and programs conducted and/or sponsored by the Town. (See Court Update, February 2009 New Hampshire Town and City, p. 31.)
On appeal, the First Circuit Court of Appeals affirmed, but on different grounds. Relying on the recent case of Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009) (see Court Update, April 2009 New Hampshire Town and City, p. 34), the Court held that the Town’s setting up and controlling its website and choosing not to allow hyperlinks constituted “government speech.” In Summum the U.S. Supreme Court held that, while the Free Speech Clause restricts government regulation of private speech, it does not restrict government speech. Furthermore, the government speech doctrine applies even when the government receives assistance from private sources to deliver a “government-controlled” message. In Summum, the city engaged in its own expressive conduct by choosing to accept a privately donated monument for placement in a city park, while rejecting other proposed monuments.
Similarly, in this case, the Town engaged in government speech by establishing a town website and then selecting which hyperlinks to place on its website. The Town created a website to convey information about the Town to its citizens and the outside world and, by choosing only certain hyperlinks to place on that website, communicated an important message about itself.
The Court noted that there are restraints on the government speech doctrine, such the Establishment Clause (no established religion) and Equal Protection Clause of the U.S. Constitution. The Court also noted the options to limit the government speech of those in office by appropriate regulations or by voting them out of office. Finally, the Court observed that “there may be cases in which a government entity might open its website to private speech in such a way that its decisions on which links to allow would be more aptly analyzed as government regulation of private speech.” Dissenting Judge Torruella found these restraints inadequate and stated that this case should be treated as government regulation of private speech.