The following is an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases are not binding on the New Hampshire Supreme Court but do interpret New Hampshire law.
The First Amendment to the U.S. Constitution prohibits Congress from making any law “abridging the freedom of speech….” This case explores the limits of that right when citizens want to post information on a municipal website.
When speech is being regulated by a municipality, the key issue is whether the forum in which the speech takes place is a “public forum.” “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981). First Amendment law recognizes three types of fora: a traditional public forum, a public forum created by government designation and a nonpublic forum.
In this case, the Court held that the Town’s website was a nonpublic forum rather than a traditional or designated public forum. It was not a traditional public forum because it had never allowed for open communication or free exchange of ideas between members of the public.
To designate something as a public forum, the government must have an “affirmative intent” to open it for use by the public as a place for expressive activity. The government’s intent depends on its policy and practice regarding the forum, and the nature of the property and its compatibility with expressive activity. In this case, the Town did not have the required affirmative intent to designate the website as a public forum. The Town’s actions over time had been consistent with its website policy “to provide citizens, businesses and visitors with information about Town programs, services, projects, issues, events, public meeting documents and activities.” Content was limited to events and programs coordinated and/or sponsored by the Town.
Although the plaintiffs argued that the Town had allowed a link on its website to “Speak Up, Epping,” the Court found that this was actually a link to information about an event, rather than a group, and the event was conducted as part of a statewide program of the state university, paid for in part by public and town funds, held on public property, and open to participation by any Epping citizen. “These generic, civic-minded objectives fit comfortably within the announced purposes of the Town homepage.”
Since the Town exhibited no intent to create a public forum, it could limit access to the site to information that it believed would serve the mission of the homepage. To do so, it could ask those wishing to post something to provide information about who they were and what they wanted to talk about to see if the information would serve the purposes of the website. However, beyond that determination, it could not discriminate based on the views that would be expressed. The Court also noted that the plaintiffs in this case had substantial alternative channels of expression, including their own website, and therefore the Town’s refusal to post the link did not unreasonably restrict the plaintiffs’ freedom of speech.
This case provides valuable guidance for municipalities that maintain a website. First, it is important to create a policy for use of the website that clearly states the site’s purpose. It is equally (if not more) important to administer this policy consistently. To reduce the chance that someone will claim the website is a public forum, it is wise to use the site to communicate information about Town business but to restrict public use. It is generally acceptable to ask who potential users are and what they plan to say to be sure that they will meet the objectives of the policy. It is also generally acceptable to limit postings to Town sponsored and/or funded events. Municipal officials are encouraged to seek advice from their legal counsel regarding these issues.