RICHMOND, Va. – Is a local school district that includes links on its Web site to promote positions it agrees with also obligated to link to Web sites that offer an opposing view?
That's the question before the 4th Circuit Court of Appeals in a Columbia, S.C., lawsuit that seeks to set the proper balance in the Internet age between individual freedom of speech and government’s ability to limit political discourse.
Randy Page, head of South Carolinians for Responsible Government, is asking the court to grant him the right to use Columbia's Lexington 1 school district’s communications system to promote taxpayer-funded home or private schooling.
Page is appealing a federal district court's ruling last July that found Lexington 1 officials were within their rights when they refused to let him use the district's Web site, e-mail lists and other computer technology to push for school choice.
Page wanted the district’s Web site to include links to articles on his Web site that argue in favor of tax credits to help parents send their children to private schools or to teach them at home. The school district argues that it is not required to provide Internet links to Page’s group – or, more broadly, to any outside organization with viewpoints or political goals that clash with its own priorities. The Supreme Court and lower courts have long recognized as “government speech” the right of public officials and agencies to communicate a particular position without requiring an opposing perspective in every instance.
But the rapid Internet expansion raises the question of whether governments can link to the Web sites of groups with which it agrees without also including links to groups that offer an alternative position.
David Duff, who represented Lexington 1 before the three-judge 4th Circuit panel during arguments last week, said a ruling requiring that Page's links be posted could dampen government agencies' willingness to make use of the Internet for fear of being forced to include opposing perspectives.
The three-judge panel appeared to side with the school district during the hearing Thursday.
Chief Judge Karen Hall said a hyper-link on the government Web site makes the link government speech.
But Kevin Hall, Page's attorney, argued that the link wasn't government speech, but the "government broadcasting private speech."
Lexington 1 officials committed “viewpoint discrimination” against Page, Hall said, by linking their Web site to outside groups opposed to new school-choice options, but refusing to link to his group’s site.
Fourth Circuit Judge Paul Niemeyer said Lexington 1 hadn’t created a public forum open to everyone by linking to sites that opposed a bill that would provide state funding to private schools.
“They (Lexington 1 officials) did not invite opposition, and they didn’t want opposition, any more than the president of the United States wants opposition when he gives a speech supporting a certain policy,” Niemeyer said.
Niemeyer, though, expressed concern that Lexington 1 officials may have undercut its position by adding a disclaimer saying that opinions expressed at sites it linked to didn't represent official school district positions.
“The point, I think, that is troubling for your position is you put a disclaimer on those sites, and you’re loosey-goosey on controlling it,” Niemeyer said.
Judges also questioned the decision by Mary Beth Hill, the Lexington 1 manager who oversaw its Web site, to link to the Web site of Choose Children First when it was actively opposing the school-choice bill – but then to remove the link after the group became more involved with other issues.
Judges asked whether that kind of Internet management wasn’t more akin to refereeing a public debate than expressing a defined point of view.
“The question we’re faced with is: Did (Lexington 1), wittingly or unwittingly, create a forum to which it would have to invite anyone?” Niemeyer said.
Duff rejected that notion.
“Yes, a Web site hyper-link can change – and, in fact, in this case did change,” he said. “That’s no different than if the government cites a hard-copy pamphlet, and later the writer changes the pamphlet.”