Sutliffe v. Epping School District

United States Court of Appeals
For the First Circuit
No. 08-2587
THOMAS SUTLIFFE; DONALD SISSON; LEO GRIMARD; NANCY LEE GRIMARD;
RENEE VICTORIA; EPPING RESIDENTS FOR PRINCIPLED GOVERNMENT, INC.,
Plaintiffs, Appellants,
v.
EPPING SCHOOL DISTRICT; TOWN OF EPPING; BARBARA D. MUNSEY,
Superintendent of Schools, Administrative Unit #14; HAROLD K.
LAPIERRE, Moderator, Town of Epping School District; SUSAN
MCGEOUGH, Member, Town of Epping Board of Selectmen; THOMAS
GAUTHIER, Member, Town of Epping Board of Selectmen; CHRISTOPHER
MURPHY, Member, Town of Epping Board of Selectmen; KIM SULLIVAN,
Member, Town of Epping Board of Selectmen; MARCI MORRIS, Chair,
Epping School Board; JEFFREY NOLLETT, Member, Epping School
Board; SUSAN KIMBALL, Member and Chair, Epping School Board;
PAMELA TIBBETTS, Member and Chair, Epping School Board; SCOTT
BOOTH, Member, Epping School Board; ROBERT LONEK, Member, Epping
School Board; JEFFREY LEDUC, Member, Epping School Board; MARK A.
VALLONE, Principal, Epping Elementary School,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Ebel,* Circuit Judges.
*
Of the Tenth Circuit, sitting by designation.
Benjamin T. King with whom Charles G. Douglas, III and
Douglas, Leonard & Garvey, P.C. were on brief for appellants.
John T. Alexander with whom Daniel J. Mullen and Ransmeier &
Spellman Professional Corporation were on brief for Town appellees.
Diane M. Gorrow with whom Soule, Leslie, Kidder, Sayward &
Loughman, P.L.L.C. was on brief for school appellees.
September 17, 2009
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LYNCH, Chief Judge. This unusual First Amendment case
grows out of a dispute over access to government channels of
written and electronic communication to conduct an ongoing debate
over government spending in the Town of Epping, New Hampshire.
A citizens group that advocates reduced spending, Epping
Residents for Principled Government ("ERPG"), along with its
chairman Thomas Sutliffe and another member, in 2006 brought this
suit under 42 U.S.C. § 1983 against various Town and school
official defendants.1 The complaint was later amended in 2007 to
add as plaintiffs three other Town residents who were unaffiliated
with ERPG. Plaintiffs claimed that defendants violated their First
and Fourteenth Amendment rights when defendant Town and school
officials advocated for approval of budgets and spending on school
and Town purposes through school and Town newsletters, mailings,
and other forms of communication including the Town website, while
denying plaintiffs access to these same communication channels to
express their opposing views.
The district court, in 2008, dismissed the claims of the
three added plaintiffs for lack of standing. Sutliffe v. Epping
Sch. Dist. (Sutliffe III), No. 06-cv-474, ___ F. Supp. 2d ___, 2008
1
These included the Town and its Board of Selectmen
(collectively the "Town defendants"), as well as the Epping School
District, its superintendent, the school district moderator, the
principal of Epping Elementary School, and current and former
members of the Epping School Board (collectively the "school
defendants").
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WL 939183, at *6-7 (D.N.H. Apr. 4, 2008). It also dismissed the
bulk of the original plaintiffs' claims on res judicata and
collateral estoppel grounds, in light of a similar suit that
plaintiffs had previously brought -- and lost -- in state court.
Id. at *5-13. In a separate order later that year, the district
court granted summary judgment to defendants on plaintiffs'
remaining claims, concerning the Town website. Sutliffe v. Town of
Epping (Sutliffe IV), No. 06-cv-474, 2008 WL 4922348 (D.N.H. Nov.
13, 2008). We now affirm the rulings in both orders.
I.
ERPG, which describes itself as "a perennial thorn in
[the Town's] side," has been engaged in a longstanding effort to
curb what it sees as "profligate spending" by the Town and its
school district.
As part of this effort, on January 31, 2005, in the lead-
up to the March 8, 2005, local elections, ERPG's chairman,
Sutliffe, sent a letter to the Epping School Board, accusing the
school board of using public resources to engage in one-sided
advocacy in certain unspecified mailers sent prior to the previous
year's election. The letter also cited the Epping Elementary
School newsletter, Cool News, which it claimed gave an unfair voice
to a private organization called the Epping Advocates; the
newsletter listed the address for the Advocates' website, which
promoted a certain view (allegedly favorable to that of the school
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board) on the issues and candidates presented in the 2004 election.
ERPG's letter demanded that the school board afford a similar
opportunity to "those residents who hold a different point of view
on matters advocated by your Board" and that all such materials
distributed in the future, particularly with regard to the March
2005 election and future elections, "include both sides of [the]
issue."
Sutliffe had sent a similar letter on behalf of ERPG on
January 29, 2005, to the Town's Board of Selectmen. The letter
accused the selectmen of producing and distributing, using public
funds, a "flyer which . . . advocated the passage of certain
warrant articles" before the previous election. As with the school
board, the letter demanded that the Board of Selectmen provide ERPG
with an opportunity to express its opposing opinion in any future
materials from the selectmen, specifically those relating to the
upcoming March 2005 election. Neither the school board nor the
selectmen acceded to ERPG's demands.
A. The New Hampshire State Court Litigation
In response, on March 3, 2005, just days before the
election, Sutliffe and ERPG filed a pro se, ex parte petition for
injunctive and declaratory relief against both boards and their
respective chairpersons (collectively the "state court defendants")
in the Rockingham County Superior Court. The petition sought to
enjoin the school board from sending any further mailings on issues
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pertaining to the election "without allowance for inclusion of a
differing viewpoint" and to grant ERPG a "rebuttal mailing to be
sent to all Epping residents prior to the March 8, 2005 election,
at the School District's expense." It also requested that the
court require the selectmen, before the March 8 election, to send
an addendum to the 2004 annual report2 with ERPG's views, again at
the Town's expense. Failing this, the petition asked the court to
delay the election.
The petition asserted that the state court defendants had
violated the New Hampshire Constitution and the First and
Fourteenth Amendments of the U.S. Constitution by "expend[ing]
public monies for purposes of promoting or advocating a particular
position on an election measure or issue." In support of this
claim, ERPG's petition cited the 2004 annual report, which included
sections written by both the school board and the selectmen. ERPG
claimed that both sections contained advocacy in favor of the
passage of certain warrant articles that were up for consideration
in 2004. ERPG pointed to two statements in the section prepared by
the school board's chairperson: (1) "We ask for your support of
the three year paraprofessional contract and the warrant article
general maintenance items." And (2) on another warrant article,
"As always, your affirmative vote on the school budget is vitally
2
The selectmen and the school board produce an annual
report, which includes budget details, meeting minutes, and other
information from committees, auditors, and department heads.
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important. This appropriation is the money needed to effectively
run our schools on a day to day basis." ERPG also objected to
material in the selectmen's portion, which contained a report by
the police chief on another warrant article that stated:
I am not convinced that we can accomplish the
mission of this department with the current
staffing and ask the town to support our needs
as we take on additional duties each year.
Your support is vital and I am asking you
again this year to vote favorably for the
addition to our police force.
Plaintiffs' objections went beyond the 2004 annual
report. The petition also cited Sutliffe's January 29 and 31
letters. It alleged that, in spite of its requests, the school
board sent three mailings in the month that followed, along with
numerous flyers sent home with students, all without giving ERPG a
chance to express its viewpoint. The petition did not explicitly
reference the Cool News newsletter or any other specific materials.
The superior court rejected plaintiffs' request for ex
parte relief on March 3, 2005, the same day the petition was filed.
Realizing that they would be unable to attain relief before the
March 8 election, the plaintiffs filed a motion to amend the
petition on March 4. In place of the relief requested in the ex
parte petition, the amended petition requested that the court: (1)
find that the 2003 and 2004 annual reports contained unwarranted
advocacy and thus constituted invalid expenditures of public funds;
(2) enjoin "all Epping public officials in the future from their
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continued use of unwarranted advocacy," as required by the New
Hampshire and U.S. Constitutions; and (3) order that the 2005 and
2006 annual reports contain a statement advising citizens on the
impermissibility of advocacy with the use of public funds.
On June 1, 2005, the superior court conducted a bench
trial on the relief requested in the amended petition. At the
trial, the plaintiffs submitted a packet of materials labeled as
Exhibit 1. These materials included copies of the Cool News school
newsletter from February and March 2004; school mailers from March
9, 2004, and March 8, 2005; photographs showing blueprints and a
model of a proposed school addition which had been placed at the
polls in the March 8, 2005 election; statements detailing the cost
of mailing certain school flyers in 2004; and a March 1, 1996,
memorandum to the Epping School District prepared by its attorney
regarding the use of public funds for advocacy.3
The superior court admitted these exhibits into evidence,
but stated that it would limit its review to the Town and school
board statements to which the plaintiffs had referred in their
3
The memorandum was prepared in response to a letter sent
in 1996 to various school districts, including the Epping School
District, on behalf of the Granite State Taxpayers Association.
The Association's letter apparently asserted that it was illegal
for the school boards to comment on an upcoming state senate bill.
The memorandum, in response, recommended that school district
refrain from expending public funds on "campaign material" but
added that it was not impermissible for school boards to make
recommendations regarding warrant articles or use public funds to
educate the public about an election issue or for elected officials
to express their views on issues confronting their community.
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petition.4 Plaintiffs explained that the materials were intended
"to give . . . some background basically on what transpired because
this all started in the year 2004." The evidence illustrated how
the plaintiffs "were denied . . . from all angles[,] from the
selectmen, the school committee, from any other planning board or
conservation commission." The court again clarified that it would
only "address the denials that are contained in [the] petition,"
and the plaintiffs agreed to this limitation.
On June 15, 2005, the superior court issued a decision
denying plaintiffs' request for declaratory judgment and injunctive
relief. It ruled that the statements in the 2004 annual report
"were made by elected public officials speaking on behalf of their
respective public entities" and "in furtherance of a public
purpose." Epping Residents for Principled Gov't, Inc. v. Epping
Sch. Bd. (Sutliffe I), No. 05-E-0094, slip op. at 3 (N.H. Super.
Ct. June 15, 2005). Thus, the statements cited in the plaintiffs'
petition did not violate the New Hampshire Constitution. Id. The
court also concluded that the statements did not violate the First
and Fourteenth Amendments because the "United States Supreme Court
4
At the hearing, in response to the plaintiffs' submission
of the materials in Exhibit 1, the court told the plaintiffs:
You have submitted a great deal of material. . . . I just
can't have a declaratory judgment that is open-ended
[such that] every time someone sends out a letter, I have
to decide [whether it is legal]. In other words, the
only thing I am going to decide is whether the material
referenced in your original petition is legal . . . to
send [out].
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has made it clear that the government may use public funds to
endorse its own measures." Sutliffe I, slip op. at 4-5 (citing
Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553 (2005)).
Plaintiffs filed a motion to reconsider, which was denied
by the superior court on July 19, 2005. The motion to reconsider
asserted that the superior court's June 15 decision contained
various legal and factual errors. It did not assert, however, that
the superior court had erred in limiting its review to the
statements in the 2004 annual report.5
The plaintiffs appealed, and on October 6, 2006, the New
Hampshire Supreme Court affirmed the superior court's decision
denying declaratory judgment and injunctive relief. On appeal,
plaintiffs had urged the court to rule on "numerous statements by
the [school board and selectmen] upon which the trial court did not
rule," including the 2004 Cool News newsletter, the school mailers,
and the election photographs. Epping Residents for Principled
Government, Inc. v. Epping Sch. Bd. (Sutliffe II), No. 2005-0600,
slip op. at 3 (N.H. Oct. 6, 2006) (mem.). In accordance with
longstanding principles of New Hampshire law, the court "decline[d]
to address the [plaintiffs'] assertions concerning any alleged
5
Plaintiffs did not argue to the superior court that it
should have considered additional claims arising from the materials
in Exhibit 1, such as the Cool News newsletter, the school mailers,
or the events that transpired during the March 8 election, nor did
they at any point seek to amend their petition to encompass such
additional claims.
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statement by the [state court defendants] other than those
specifically addressed by the trial court." Id. If the plaintiffs
believed the superior court erred in confining its review, their
recourse under state law was to raise this argument before that
court in a motion for reconsideration; they failed to do so,
however, and they could not raise the issue for the first time on
appeal. Their pro se status did not relieve them of their
responsibility to comply with procedural rules. Id. at 3-4 (citing
N.H. Dep't of Corr. v. Butland, 797 A.2d 860, 862 (N.H. 2002)).
Finally, the court upheld the superior court's ruling that
plaintiffs were not entitled to declaratory or injunctive relief on
the basis of the statements in the 2004 annual report, noting that
plaintiffs conceded at oral argument that these statements were
lawful. Id. at 4.
B. The Federal Court Litigation
Two months later, on December 18, 2006, plaintiffs, now
represented by counsel, filed this suit in federal court. The suit
alleged that defendants violated plaintiffs' First and Fourteenth
Amendment rights by "creating fora . . . for the expression of
their viewpoints regarding spending, while failing and refusing to
allow the [plaintiffs] access to such fora in order to communicate
their contrary viewpoints regarding spending." Along with Sutliffe
and ERPG, who were the plaintiffs in the state court action, the
complaint listed as a plaintiff Donald Sisson, an Epping resident
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and ERPG member. Along with the school board and the Board of
Selectmen, the federal complaint also named a wider set of
defendants, including the Town, the Epping School District, its
superintendent, the school district moderator, and the principal of
Epping Elementary School.
The initial complaint sought only money damages and was
based on "activities occurring in 2004 and 2005." These events
were: (1) the distribution of the Cool News newsletter in February
and March 2004 (which included the reference to the Advocates'
website); (2) the distribution of other "promotional flyers" by the
school in 2004 and 2005, which were mailed at the taxpayers'
expense; (3) the use of similar "advocacy mailers" since 2001; (4)
the placing of favorable information about a proposed school
addition at the polls during the March 8, 2005, election; (5)
mailings from the Board of Selectmen advocating the passage of
certain warrant articles in 2004; and (6) mailings from the Town
conservation committee advocating particular political viewpoints
in the 2003 and 2004 elections.
The school and Town defendants filed motions to dismiss,
arguing that plaintiffs' claims were barred by res judicata and the
Rooker-Feldman doctrine. Before the district court ruled on these
motions, plaintiffs moved to amend their complaint. The
plaintiffs' motion to amend was granted on May 3, 2007. The first
amended complaint, filed the same day, differed from the initial
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complaint in two ways. First, in an apparent attempt to circumvent
defendants' res judicata argument, the amended complaint added
three plaintiffs, Leo Grimard, Nancy Grimard, and Renee Victoria,
all Epping residents who had no affiliation with ERPG. Second, the
first amended complaint added an allegation based on alleged
advocacy in the 2006 annual report, which the plaintiffs explained
is "a matter that [they] could not possibly have raised" in the
2005 state court trial.
Defendants moved again to dismiss, and on October 12,
2007, plaintiffs filed a second amended complaint. The second
amended complaint added a new set of allegations based on the
Town's decision in 2007 to add a link on its website to the website
for the Speak Up, Epping! (SUE) event while refusing to add a link
to ERPG's website. The facts surrounding these allegations are
briefly summarized.
Since the 1990s, the Town has owned and maintained a
website; the Board of Selectmen determines what materials are
placed on it. The website provides information on various Town
boards and commissions, Town meetings, and proposed warrant
articles.
The Town website has also included hyperlinks to other
websites. It is undisputed that these hyperlinks have only been
added with the approval of the Board of Selectmen. Over the years,
the Board of Selectmen has granted approval for external links to
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the websites of "governmental agencies and certain civic
organizations," such as the New Hampshire Municipal Association,
the Epping Middle High School, and the Exeter Area Chamber of
Commerce. These links are not the subject of plaintiffs'
complaint.
For many years, there was an informal and unwritten
policy as to when links would be added. Defendants say the purpose
of the hyperlinks on the Town's website was always to "provide
information to the citizenry of the Town on Town business." The
only links that were permitted were ones that "would promote
providing information about the Town," and any links that were
"political or advocate[d] for certain candidates" were not allowed.
However, on March 31, 2008, after the events at issue in this suit
occurred, the Town adopted a written website policy that limited
hyperlinks on the Town website to those for governmental agencies
or "events and programs that are coordinated and/or sponsored by
the Town of Epping."
In early 2007, the Town placed a hyperlink on its website
to the website for SUE, which was an event that was scheduled to
take place on April 14 of that year. SUE, which was part of a
state-wide program facilitated by the University of New Hampshire
Cooperative Extension, consisted of a day-long discussion, held at
the Epping Middle-High School, among Town residents; the event was
intended to foster community spirit, civic discourse, and the
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organization of community-defined projects and action groups. SUE
was not itself a formal organization.
Epping's Board of Selectmen endorsed the SUE event. In
August 2006, at the behest of a group of Epping residents who had
formed a steering committee for SUE, the selectmen agreed to
provide $500 in funds to the University of New Hampshire
Cooperative Extension to cover the costs of facilitating the event.
The Board of Selectmen entered into a memorandum of understanding
with the Extension regarding the details of the event and later
received reports from the steering committee as planning and
preparation for the event progressed. The steering committee
provided the selectmen detailed information on its members, meeting
times, purpose, and finances. One of the reports from the steering
committee to the selectmen also explained plans for getting the
word out about the event to the Town's residents; it proposed using
the Town website "for general outreach" and stated that the
steering committee would communicate with the Town administrator
about this. Because of the Board of Selectmen's endorsement, the
Town administrator allowed the link from the Town's website to the
SUE event website.
On July 20, 2007, after the hyperlink to the SUE website
was added to the Town website, Sutliffe wrote a letter to the
selectmen requesting that a hyperlink to ERPG's website also be
added to the Town website. The selectmen responded with a letter
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on August 14, 2007. The letter stated that the Board of Selectmen
needed more information about ERPG before it could decide on
Sutfliffe's request. It requested that Sutliffe provide
information about ERPG's mission, a list of its members and
officers, and financial statements. It also inquired whether
ERPG's meetings and membership were open to the public, when
meetings are scheduled, how one joins the group, and how the
organization spends the funds it raises. The request essentially
paralleled the information that had been voluntarily provided to
the Board of Selectmen by the SUE steering committee.
On August 21, 2007, Sutliffe responded by requesting: (1)
that the Town explain under what authority it could require such
information from ERPG and (2) that it produce evidence that the
Board of Selectmen had requested similar evidence from SUE. After
the Town failed to respond, plaintiffs amended their complaint to
add two claims based on these events.
First, plaintiffs alleged that the Town defendants
violated their free association rights under the First Amendment by
requesting that Sutliffe disclose certain information about ERPG.
The Town claimed this information was necessary in order to allow
the Board of Selectmen to decide whether it was appropriate to add
the ERPG hyperlink. According to plaintiffs, however, this request
was intended merely to harass and intimidate, in violation of the
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First Amendment. See generally Gibson v. Fla. Legislative
Investigation Comm., 372 U.S. 539, 544 (1963).
Plaintiffs' second claim was that the Town defendants
violated their Free Speech Clause rights by refusing their request
to add a link to ERPG's website while simultaneously posting a link
to the website of SUE. Plaintiffs argued that the Town turned its
website into a designated public forum, and its rejection of ERPG's
request could not withstand strict scrutiny. They argued, in the
alternative, that the Town engaged in viewpoint discrimination by
adding the hyperlink to the SUE website and not to ERPG's and that
such viewpoint discrimination would be impermissible even in a
nonpublic forum. Plaintiffs characterized SUE as a "private
group[] whose views the Town favors," although they provided no
support for this characterization or any explanation of what views,
if any, SUE espoused.
Defendants again moved to dismiss, and on March 25, 2008,
the district court held a hearing on these motions. On April 4,
2008, the court issued an order granting the motions to dismiss as
to all the claims of the three plaintiffs added in the second
amended complaint and as to the bulk of the claims of the remaining
plaintiffs. Sutliffe III, 2008 WL 939183, at *14. The court
concluded that the Grimards and Victoria lacked Article III
standing because they failed to allege any actual or threatened
injury. Id. at *6-7.
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As to the other plaintiffs, the court concluded, first,
that the claim added in the first amended complaint regarding the
2006 annual report was barred by collateral estoppel. It reasoned
that the state court had decided the propriety of the 2004 annual
report, and it found that "[t]here is no reason to believe, even
when the allegations of the second amended complaint are taken as
true and augmented with all reasonable inferences in the
plaintiffs' favor, that the 2006 annual report can be distinguished
from the 2004 annual report in any meaningful sense." Id. at *13.
Second, the court concluded that all the remaining
claims, except those added in the second amended complaint
pertaining to the Town website, were barred by res judicata. It
found that the federal case arose from the same cause of action as
the earlier state court case, and that the state court case
concluded with a final judgment on the merits. Id. at *8-10. Once
the three plaintiffs who lacked standing were removed from
consideration, moreover, the federal complaint and the state court
suit involved the same parties or their privies. Id. at *6-8. All
the remaining claims brought in the federal complaint, except for
the website claim, were either brought or could have been brought
in the state court suit; the claims were thus barred. Id. at *11.
On August 21, 2008, the Town defendants moved for summary
judgment on the remaining claims, which pertained to the website.
The district court granted summary judgment to the defendants on
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November 13, 2008. Sutliffe IV, 2008 WL 4922348, at *12. First,
the district court rejected plaintiffs' free association claim.
The court found there was no evidence that the Town's disclosure
request would have resulted in "harassment of current members, a
decline in new members, or other chilling of associational rights."
Id. at *4 (quoting United States v. Comley, 890 F.2d 539, 544 (1st
Cir. 1989)) (internal quotation mark omitted).
Second, the district court rejected plaintiffs' claim
under the Free Speech Clause. The court rejected plaintiffs'
argument that the Town turned its website into a designated public
forum by adding the SUE link while rejecting the ERPG link. Id. at
*5-8. Viewing the Town website as a nonpublic forum, it concluded
that the Town's actions were reasonable and there was no evidence
of viewpoint discrimination. Id. at *8-11.
II.
We review de novo the district court's grant of a motion
to dismiss under Fed. R. Civ. P. 12(b)(6), accepting as true all
well-pleaded facts in the complaint and drawing all reasonable
inferences in the plaintiffs' favor. Gargano v. Liberty Int'l
Underwriters, Inc., No. 08-2287, ___ F.3d ___, 2009 WL 2020408, at
*2 (1st Cir. July 14, 2009). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Gargano, 2009
WL 2020408, at *2.
We also review de novo the district court's grant of
summary judgment, drawing all reasonable inferences in favor of the
non-moving party while ignoring "conclusory allegations, improbable
inferences, and unsupported speculation." Sullivan v. City of
Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (quoting Prescott v.
Higgins, 538 F.3d 32, 39 (1st Cir. 2008)) (internal quotation marks
omitted). For review of both summary judgment and dismissal under
Rule 12(b)(6), we may affirm on any basis apparent in the record.
Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008); CMI Capital Mkt.
Inv., LLC v. Gonázlez-Toro, 520 F.3d 58, 65 (1st Cir. 2008).
Plaintiffs raise three arguments on appeal. They
challenge the district court's ruling, in its April 4, 2008, order,
dismissing for lack of standing the claims of the Grimards and
Victoria, the three plaintiffs added in the first amended
complaint. They also challenge the district court's ruling, in the
same order, dismissing the bulk of the remaining plaintiffs' claims
under the doctrine of res judicata. Finally, they challenge the
November 13, 2008, grant of summary judgment to the defendants on
plaintiffs' Free Speech Clause claim pertaining to the Town
website.
Plaintiffs do not challenge the court's dismissal on
collateral estoppel grounds of their claim relating to the 2006
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annual report. Nor do they challenge the court's ruling on their
free association claim.
A. Dismissal of the Added Plaintiffs' Claims for Lack of
Standing
The doctrine of constitutional standing "reflect[s] th[e]
fundamental limitation" of judicial power to "Cases" and
"Controversies," under Article III of the Constitution. Summers v.
Earth Island Inst., 129 S. Ct. 1142, 1148-49 (2009); accord
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). The
"irreducible constitutional minimum of standing contains three
elements": (1) that the plaintiff suffered an "injury in fact," (2)
that there is a "causal connection between the injury and the
conduct complained of," and (3) that it is "likely" that the injury
will be redressed by the requested relief. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); accord DaimlerChrysler, 547
U.S. at 342; Valley Forge Christian College v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). "The
burden of stating facts sufficient to support standing rests with
the party seeking to assert federal jurisdiction." Sea Shore Corp.
v. Sullivan, 158 F.3d 51, 54 (1st Cir. 1998); see also Lujan, 504
U.S. at 561.
"Injury in fact" is "an invasion of a legally protected
interest" that is both "concrete and particularized," Lujan, 504
U.S. at 560, and "actual or imminent, not 'conjectural' or
'hypothetical,'" id. (quoting Whitmore v. Arkansas, 495 U.S. 149,
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155 (1990)) (internal quotation marks omitted). Thus, plaintiffs
must "show that [they] personally ha[ve] suffered some actual or
threatened injury." Valley Forge, 454 U.S. at 472 (quoting
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979))
(internal quotation mark omitted).
The district court correctly concluded that the three
plaintiffs added in the second complaint could not show any actual
or imminent injury. As to actual injury, plaintiffs argue, as they
did before the district court, that defendants "have denied them
access to taxpayer-financed fora for purposes of expressing views
contrary to those of the defendants." But the complaint alleges
only that Sutliffe and ERPG were denied access to these fora; it
does not allege that the Grimards or Victoria were in any way
involved in the other plaintiffs' stymied efforts to access the
"fora" -- to the contrary, it explicitly states that each of the
three added plaintiffs had "no affiliation with [ERPG]." Nor does
the complaint allege that the Grimards or Victoria made any
independent attempts to gain access to these channels of
communication. As such, there is no basis whatsoever for
plaintiffs' claim that the Grimards or Victoria suffered actual
injury. See Pagán v. Claderón, 448 F.3d 16, 35 (1st Cir. 2006).
As to imminent injury, plaintiffs' claim fails for
similar reasons. Plaintiffs argue that the Grimards and Victoria
meet the "injury in fact" requirement because, "just like the other
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plaintiffs, [they] wish to participate in the taxpayer financed
fora for the expression of views that the School and Town
defendants have opened." But the complaint is devoid of any such
allegation, as the plaintiffs conceded before the district court at
oral argument. And even if plaintiffs had alleged that the
Grimards and Victoria "wished to participate" in these fora, this
would not be sufficient. Such nebulous "'some day' intentions --
without any description of concrete plans, or indeed even any
specification of when the some day will be -- do not support a
finding of . . . 'actual or imminent' injury." Lujan, 504 U.S. at
564; accord Summers, 129 S. Ct. at 1151; see also Port Washington
Teachers' Ass'n v. Bd. of Educ., 478 F.3d 494, 500 (2d Cir. 2007).6
B. Dismissal of Plaintiffs' Claims on Res Judicata Grounds
The district court's dismissal of all the remaining
plaintiffs' claims besides those pertaining to the Town website and
the 2006 annual report was correct.
"Under federal law, 'a federal court must give to a
state-court judgment the same preclusive effect as would be given
6
Plaintiffs' reliance on Osediacz v. City of Cranston, 414
F.3d 136 (1st Cir. 2005), is misplaced. Osediacz recognized that
"prudential standing concerns are relaxed in certain facial
challenges implicating the First Amendment." Id. at 141 (emphasis
added). But plaintiffs have not raised any sort of facial
challenge. More importantly, we explicitly recognized in Osediacz
that even in the particular context of such challenges, "a litigant
still must demonstrate that she satisfies the constitutional minima
essential to establish standing." Id. (emphasis added); see also
IMS Health Inc. v. Ayotte, 550 F.3d 42, 49-50 & n.5 (1st Cir.
2008).
-23-
that judgment under the law of the state in which the judgment was
entered.'" Torromeo v. Town of Fremont, 438 F.3d 113, 115-16 (1st
Cir. 2006) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 81 (1984)). Thus, we look to New Hampshire law to
determine whether the plaintiffs' earlier state court suit bars
their claims in the present federal suit. Id. Under New Hampshire
law, res judicata "precludes the litigation in a later case of
matters actually decided, and matters that could have been
litigated, in an earlier action" when the following three elements
are met: "(1) the parties must be the same or in privity with one
another; (2) the same cause of action must be before the court in
both instances; and (3) a final judgment on the merits must have
been rendered in the first action." Meier v. Town of Littleton,
910 A.2d 1243, 1245 (N.H. 2006); accord Torromeo, 438 F.3d at 116.
As to the first requirement, the federal suit involves
four plaintiffs who were not parties to the state court suit:
Sisson, the Grimards, and Victoria. It also involves a number of
additional defendants. Plaintiffs do not contest Sisson, who was
a member of ERPG at all relevant times, was in privity with the
state court plaintiffs, Sutliffe and ERPG; nor did they contest
this point before the district court. Nor do they argue that the
additional defendants cannot assert res judicata. Plaintiffs' only
argument is that the requirement is not met because the Grimards
and Victoria were neither parties nor in privity with parties to
-24-
the state court suit. Because we find that the district court
properly dismissed these three added plaintiffs for lack of
standing, plaintiffs' argument necessarily fails.
As to the second requirement, plaintiffs argue that the
state court suit did not involve the same cause of action as the
federal suit because the federal suit encompassed factual
allegations that were not present in the state suit. We disagree.
"New Hampshire law considers two causes of action to be
the same for purposes of res judicata when they arise from the same
factual transaction." Patterson v. Patterson, 306 F.3d 1156, 1159
(1st Cir. 2002) (citing ERG, Inc. v. Barnes, 624 A.2d 555, 558
(N.H. 1993)). The term "transaction" has not been precisely
defined, see Patterson, 306 F.3d at 1159, 1160 n.1, but the New
Hampshire Supreme Court has stated that "'[c]ause of action' has a
broad transaction definition in the res judicata context," Brzica
v. Trs. of Dartmouth Coll., 791 A.2d 990, 1000 (N.H. 2002). The
fact that a second suit contains some additional factual
allegations does not mean it does not arise from the same factual
transaction. Two claims arise from the same transaction so long as
"[n]o material fact is alleged in action No. 1 that was not alleged
in action No. 2." Patterson, 306 F.3d at 1159-60 (alteration in
original) (emphasis added) (quoting E. Marine Constr. Corp. v.
First S. Leasing, Ltd., 525 A.2d 709, 713 (N.H. 1987)) (internal
quotation marks omitted). "Res judicata will bar a second action
-25-
even though the plaintiff is prepared in the second action to
present evidence or grounds or theories of the case not presented
in the first action." Brzica, 791 A.2d at 1000.
The Restatement (Second) of Judgments § 24 (1982)7 states
that "the concept of a transaction is . . . used in the broad
sense" and "the expression connotes a natural grouping or common
nucleus of operative facts." Id. cmt. b.; see also id. ("Among the
factors relevant to a determination whether the facts are so woven
together as to constitute a single claim are their relatedness in
time, space, origin, or motivation, and whether, taken together,
they form a convenient unit for trial purposes.") Moreover,
"[w]hen a defendant is accused of . . . acts which though occurring
over a period of time were substantially of the same sort and
similarly motivated, fairness to the defendant as well as the
public convenience may require that they be dealt with in the same
action," and the events are said to "constitute but one
transaction." Id. cmt. d.
Here, it is clear that plaintiffs' claims, with the
exception of the website and the 2006 annual report claims,
constituted the same factual transaction as the claims brought
before the state court. Plaintiffs claim is essentially that Town
and school officials violated their First Amendment rights "by
7
The New Hampshire Supreme Court has repeatedly looked to
this section of the Restatement when defining res judicata.
Patterson, 306 F.3d at 1160.
-26-
opening fora for the expression of views on spending" while
"refus[ing] to allow the plaintiffs to express their contrary views
regarding spending through such taxpayer-financed fora." This is
precisely the same claim that the plaintiffs presented to the state
court in 2005. The fact that plaintiffs' federal complaint is not
based on the 2004 annual report but on allegations of a series of
closely related events which occurred between 2003 and 2005 does
not defeat res judicata. These allegations are largely identical
to the evidence in Exhibit 1, which the plaintiffs presented to the
state court, in conjunction with the 2004 annual report, as
illustrative of how they were "denied [access] from all angles,
from the selectmen, from the school committee, [and] from any other
planning board or conservation commission." To the extent that the
plaintiffs now present further examples of their basic claim that
they did not present to the state court, these added facts are
substantially of the same sort and similarly motivated and are
closely tied in time, space, and origin. Thus, the two cases
involve the same cause of action. See Brzica, 791 A.2d at 999-
1000; see also Fiumara v. Fireman's Fund Ins. Cos., 746 F.2d 87, 91
(1st Cir. 1984) (applying New Hampshire res judicata law); cf. In
re Appeal of Univ. Sys. of N.H. Bd. of Trs., 795 A.2d 840, 843-44
(N.H. 2002).
As to the third requirement, plaintiffs argue that the
state court litigation did not result in a final judgment on the
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merits because the state court limited its review to the statements
in the 2004 annual report. Thus, they argue, there was no final
judgment on plaintiffs' numerous other allegations, such as those
relating to the Cool News newsletter, other mailers, and the events
that occurred at the March 8, 2005, election. Plaintiffs' argument
confuses the requirements of res judicata with those of collateral
estoppel, as the district court properly noted. Res judicata does
not require a final judgment on the merits as to every specific
claim to be barred; rather, so long as the previous action
concluded with a final judgment on the merits, res judicata extends
to "bar[] the relitigation of any issue that was, or might have
been, raised in respect to the subject matter of the prior
litigation." Grossman v. Murray, 681 A.2d 90, 93-94 (N.H. 1996)
(emphasis in original) (quoting Dennis v. R.I. Hosp. Trust Nat'l
Bank, 744 F.2d 893, 898 (1st Cir. 1984), abrogated on other grounds
by Salve Regina Coll. v. Russell, 499 U.S. 225 (1991)) (internal
quotation marks omitted).
All of plaintiffs' claims, excluding those pertaining to
the Town website and the 2006 annual report, could have easily been
brought as part of the state court action. Almost all of
plaintiffs' allegations in this suit are based on evidence that
actually was presented to the state court. Seven of the exhibits
attached to plaintiffs' federal complaint were included in the
packet of materials presented to the state court that was labeled
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Exhibit 1. These include the Cool News newsletters from February
and March 2004, the photographs from the March 8, 2005, election,
the March 2004 and March 2005 school mailers, and the school
postage statements. Yet another exhibit, Sutliffe's January 31,
2005, letter, was attached to the original state court petition.
Plaintiffs argue that they could not have raised their
claim regarding the events that took place during the March 8,
2005, election because these events occurred after the original
state court petition was filed. But plaintiffs were able to
present these events to the state court as evidence, and nothing
prevented them from amending their petition to encompass this
allegation -- or any of the other allegations presented in this
case. See Fiumara, 746 F.2d at 92 ("[A]ll of the events which
define the federal complaint occurred in the period before the
state trial and were at least generally hinted at during that
trial. If they were not then litigated as hotly as the plaintiff
would now wish, they plainly could have been."); see also Brzica,
791 A.2d at 999-1000.
Thus, the district court did not err in its res judicata
ruling.
We add a final note. Res judicata is not merely a legal
technicality. Rather, the doctrine is rooted in essential
considerations of fairness and judicial economy. See E. Marine
Constr., 525 A.2d at 711. As the Supreme Court has stated, res
-29-
judicata serves the "dual purpose of protecting litigants from the
burden of relitigating an identical issue with the same party or
his privy and of promoting judicial economy by preventing needless
litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326
(1979). Significant resources have already been spent litigating
this claim before the state court -- by both the taxpayers whose
taxes support the New Hampshire courts and by the defendants who
were brought into court (and who, incidently, are also taxpayer-
supported in this case). It would be not only unfair but also
wasteful for plaintiffs to be allowed to take another shot at these
same claims, this time in the federal system.
C. Grant of Summary Judgment on Plaintiffs' Town Website
Free Speech Clause Claim
We turn now to the district court's November 13, 2008,
grant of summary judgment to the defendants on plaintiffs' claim
that the Town's refusal to add a hyperlink to ERPG's website from
the official Town website violated plaintiffs' First Amendment Free
Speech Clause rights. We affirm the district court's decision but
on different grounds: plaintiffs' claim fails because the Town
defendants' actions, in setting up and controlling a town website
and choosing not to allow the hyperlinks, constituted government
speech.
The government speech doctrine, as applied in the recent
case of Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009),
controls our analysis. In Summum, the Court held that while "[t]he
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Free Speech Clause restricts government regulation of private
speech[,] it does not regulate government speech." Id. at 1131.
"[T]he Government's own speech . . . is exempt from First Amendment
scrutiny." Id. (alteration and omission in original) (quoting
Johanns, 544 U.S. at 553) (internal quotation marks omitted);
accord, e.g., Page v. Lexington County Sch. Dist. One, 531 F.3d
275, 280 (4th Cir. 2008); People for the Ethical Treatment of
Animals, Inc. v. Gittens, 414 F.3d 23, 28 (D.C. Cir. 2005); see
also 5 R.D. Rotunda & J.E. Nowak, Treatise on Constitutional Law
§ 20.11(d) (4th ed. 2008). "A government entity has a right to
'speak for itself.'" Summum, 129 S. Ct. at 1131 (quoting Bd. of
Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229
(2000)). In so doing, "[i]t is entitled to say what it wishes,"
id. (quoting Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819, 833 (1995)) (internal quotation marks omitted), and
"to select the views that it wants to express," id. (citing Rust v.
Sullivan, 500 U.S. 173, 194 (1991)).
Furthermore, the Court in Summum held that the government
speech doctrine may apply even when the government uses other
parties to express its message. "A government entity may exercise
[the] same freedom to express its views [even] when it receives
assistance from private sources for the purposes of delivering a
government-controlled message." Summum, 129 S. Ct. at 1131; accord
Johanns, 544 U.S. at 562; Rosenberger, 515 U.S. at 833; see also
-31-
Rust, 500 U.S. at 196-200. "[W]here the government controls the
message, 'it is not precluded from relying on the government-speech
doctrine merely because it solicits assistance from nongovernmental
sources.'" Summum, 129 S. Ct. at 1131 (quoting Johanns, 544 U.S.
at 562).
More specifically, Summum makes it clear that when the
government uses its discretion to select between the speech of
third parties for presentation through communication channels owned
by the government and used for government speech, this in itself
may constitute an expressive act by the government that is
independent of the message of the third-party speech. In Summum,
the Court concluded that by accepting a privately donated monument
for placement in a city park, while exercising its discretion and
rejecting other proposed monuments, a city engaged in its own
expressive conduct. Summum, 129 S. Ct. at 1133-36. By choosing
which monuments to place in the public park, the city conveyed an
important government message about the identity of the city. Id.
at 1133-34. This message, the Court reasoned, did not necessarily
have to "coincide with the thinking of the monument's donor or
creator." Id. at 1136. The city effectively controlled its
message because it exercised "final approval authority" over the
selection of the monuments. Id. at 1134 (quoting Johanns, 544 U.S.
at 561).
-32-
Thus, even though many of the monuments in the city's
park "were not designed or built by the City and were donated in
completed form by private entities," the city's actions were
government speech. Id.; accord United States v. Am. Library Ass'n,
539 U.S. 194, 204-05 (2003) (plurality opinion) (applying the
government speech doctrine to "a public library's exercise of
judgment in selecting the material it provides to its patrons");
Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 585-86 (1998)
(upholding the National Endowment for the Arts's use of content-
based criteria in deciding which projects to fund); Ark. Educ.
Television Comm'n v. Forbes, 523 U.S. 666, 674 (1998) (citations
omitted) ("When a public broadcaster exercises editorial discretion
in the selection and presentation of its programming, it engages in
speech activity. Although programming decisions often involve the
compilation of the speech of third parties, the decisions
nonetheless constitute communicative acts.");8 see also Gittens,
414 F.3d at 28-30 (applying government speech doctrine to a
government entity's use of editorial discretion to select between
privately submitted public art exhibits and holding that this
choice constituted a communicative act that was independent of the
message of any of the privately submitted exhibits).
8
There is no claim in this case that there is any statute
requiring New Hampshire towns and school systems to present
opposing points of view through their channels of communication,
akin to the FCC's fairness doctrine. See generally Red Lion
Broad., Co. v. FCC, 395 U.S. 367, 369 (1969).
-33-
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 Town
did so even more directly than did the city in Summum, which the
Court found to have conveyed a message about itself by choosing
which privately funded monuments to place in the city park. See
Summum, 129 S. Ct. at 1134, 1136; see also Page, 531 F.3d at 285.
This expressive activity was independent of the specific content of
the websites that were hyperlinked from the Town's website. Also
like the city in Summum, the Town defendants effectively controlled
the content of this message by exercising "'final approval
authority' over the[] selection" of the hyperlinks on the website.
Summum, 129 S. Ct. at 1134 (quoting Johanns, 544 U.S. at 561). It
is undisputed that hyperlinks were only added to the website with
the approval of the Board of Selectmen.
Plaintiffs' attempt to compare their website to the
website for SUE fails. The hyperlink to SUE was to a state
university-sponsored event, which received Town approval. Thus,
the link was from a government website to another government-
sponsored website and not to a private website. Further, the
hyperlink was to a Town-sponsored, nonpartisan event. By contrast
-34-
to the approved link, plaintiffs' website contained partisan
political speech, a category to which the Town had historically
declined to provide hyperlinks regardless of the viewpoint
expressed.
To be sure, there may be limits9 to the government speech
doctrine, as to the criteria used when the government chooses to
provide hyperlinks to particular private speech and not other
private speech. But this is not even arguably such a case, nor is
it a case of viewpoint discrimination. Any claim of viewpoint
discrimination that plaintiffs could raise would be based entirely
on the Town's posting of the SUE hyperlink. Plaintiffs have not
argued, before the district court or on appeal, that their claim of
a violation under the Free Speech Clause is evidenced by the
inclusion of any of any other external links. And they have
offered no convincing explanation for how the decision to add a
link to the website for SUE supports a claim for viewpoint
9
There are certainly other restraints on the government in
a case such as this. Summum, 129 S. Ct. 1132. If the voters do
not like those in governance or their government speech, they may
vote them out of office, see Southworth, 529 U.S. at 235, or limit
the conduct of those officials "by law, regulation, or practice,"
Summum, 129 S. Ct. at 1132. The Establishment Clause is another
restraint on government speech, id., and the Equal Protection
Clause may be as well.
We note, furthermore, that this case presents no claim of
compelled funding from private actors of government speech, see
Johanns, 544 U.S. at 557-59. Indeed, this case presents the
reverse situation -- an attempt to compel the government to provide
access to private speech on government-owned communication
channels.
-35-
discrimination. Contrary to plaintiffs' characterization, SUE was
not a private group with a viewpoint contrary to ERPG's; rather, it
was an event conducted as part of a statewide program of the state
university, which the Town had endorsed and provided financial
sponsorship for. Plaintiffs have never identified any viewpoint
espoused by SUE, much less how such a purported viewpoint was
favored by the Town over ERPG's viewpoint. We do not engage issues
that are not presented by the case.
The fact that the Town did not have a formal, written
policy in place as to which hyperlinks it would place on its
website until after Sutliffe made his request is irrelevant to
whether the Town's actions constitute government speech. Indeed,
in Summum, the city similarly did not adopt an express policy until
after it had rejected the plaintiff's monument. Summum, 129 S. Ct.
at 1134 ("[T]he City has now expressly set forth the criteria it
will use in making future selections." (emphases added)). Far
from finding that this weakened the city's claim that it had
engaged in government speech, the Court treated this fact as
further evidence that the city was effectively controlling its
message. See id.; see also Page, 531 F.3d at 278.
Moreover, the Town did have an unwritten policy of only
adding links that "would promote providing information about the
Town," while refusing to add links that were "political or
advocate[d] for certain candidates." Plaintiffs argue that this
-36-
policy is belied by actual practice, but they conceded before the
district court that their only support for this assertion is the
addition of the SUE link. Further, plaintiffs have never argued
that the purported lack of a clear policy is evidenced by the
inclusion of any other hyperlinks on the Town website. And
plaintiffs have never explained how adding a link to the website of
SUE, which was a Town-sponsored event and civic in nature,
contradicted this established but unwritten policy.10
Our conclusion that the Town's actions on these facts
constituted government speech is consistent with the view of at
least one other circuit.11 In a pre-Summum decision, the Fourth
Circuit last year held in Page v. Lexington County School District
One that the government's choice to set up hyperlinks to the
websites of private groups on a school district's website was
10
This case is not about government dictating to private
speakers what they must include in their presentations, see Hurley
v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515
U.S. 557 (1995), but the contrary: plaintiffs are trying to dictate
to the government what it must include in its presentation.
Plaintiffs' argument in fact raises risks to values protected by
the First Amendment. They argue the Town must have explicit
criteria for choosing to allow links, but they no doubt would
object to the Town telling them no link would be allowed unless
they changed the content of their message.
11
We do not consider the alternate analysis in Putnam Pit,
Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 2000), which was
decided before the Supreme Court clarified the government speech
doctrine in Johanns, American Library Association, and Summum. In
Putnam, the court analyzed the hyperlinks placed on a city's
website in terms of forum analysis. It is not clear whether the
government speech doctrine was raised in that case.
-37-
government speech. In Page, the school district expressed its
opposition to an education bill then pending before the state
assembly by adding hyperlinks on its websites to the websites of
two private organizations that were also opposed to the bill.
Page, 531 F.3d at 278. A citizen who supported the bill brought a
§ 1983 suit against the school district after the school district
rejected his request that he be granted equal access to the website
to express his own views. Id. at 279. The court rejected the
First Amendment claim on government speech grounds. It found that
the school district had established a message and exerted effective
control over it, even though third parties were involved. Id. at
283-84. By linking to the other websites, the school district did
not incorporate the contents of those websites into its own website
but merely furthered its own message by "provid[ing] information
that other websites supporting its position existed" and
"facilitat[ing] [the] viewing [of] those websites." Id. at 284.
Even though the school district could not affect the content of
these websites, it maintained the necessary control over its own
message by "wholly controll[ing] its own website, retaining the
right and ability to exclude any link at any time." Id.
Plaintiffs attempt to frame this case in terms of forum
analysis rather than government speech. They argue, as they did
before the district court, that the Town created a designated
public forum in its website. As we understand their argument, they
-38-
claim this designated public forum was created when the Town
refused to add the link to ERPG but agreed to add the link to SUE,
which showed that there were no clear standards for exclusion or
inclusion of third-party links on its website. This, they say,
established a government intention to create a designated public
forum in its website.12
Contrary to plaintiffs' framing of the issue, "public
forum principles . . . are out of place in the context of this
case." Am. Library Ass'n, 539 U.S. at 205 (plurality opinion).
The Town's website is obviously not a traditional public forum.
Given that the Internet itself is a "resource [] which did not
exist until quite recently," the Town's website "has not
'immemorially been held in trust for the use of the public and,
time out of mind, . . . been used for purposes of assembly,
communication of thoughts between citizens, and discussing public
questions.'" Am. Library Ass'n, 539 U.S. at 205 (omission in
original) (quoting Int'l Soc'y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 679 (1992)); see also Int'l Soc'y for Krishna
Consciousness, 505 U.S. at 680 ("[G]iven the lateness with which
the modern air terminal has made its appearance, it hardly
12
Plaintiffs also argue that if the Town decided not to
post a link to ERPG's website because ERPG's speech was political,
this decision violated Buckley v. Valeo, 424 U.S. 1 (1976), since
ERPG was not engaged in "express advocacy." This argument is
meritless and misconstrues the holding of Buckley. See McConnell
v. Fed. Election Comm'n, 540 U.S. 93, 190-92 (2003).
-39-
qualifies for the description of having 'immemorially ... time out
of mind' been held in the public trust and used for purposes of
expressive activity." (omission in original) (quoting Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515 (1939))); Putnam Pit, Inc.
v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000).
Plaintiffs' argument that the Town created a designated
public forum in its Town website and the hyperlink to a Town-
sponsored event is also misplaced, since there is absolutely no
evidence that the Town "intentionally open[ed] a nontraditional
forum for public discourse." Del Gallo v. Parent, 557 F.3d 58, 72
(1st Cir. 2009) (quoting Ridley v. Mass. Bay Transp. Auth., 390
F.3d 65, 76 (1st Cir. 2004)) (internal quotation mark omitted).13
The public forum doctrine is not a natural fit for the
issues raised by this case. The doctrine "first [arose] in the
context of streets and parks," and the Supreme Court has warned
against extending it "in a mechanical way" to "very different
context[s]," such as this one. Forbes, 523 U.S. at 672-73. We
think that analyzing the government's decision to place certain
hyperlinks on its website in terms of a doctrine rooted in the
government's historic regulation of speech, by private citizens, on
real, public property would require a highly strained analogy. See
13
The question of the Town's intentions is not determined
by whether its policy for access is written. See Del Gallo, 557
F.3d at 72.
-40-
M.J. Dolan, Why Monuments Are Government Speech: The Hard Case of
Pleasant Grove City v. Summum, 58 Cath. U. L. Rev. 7, 42 (2008).
Given that the public forum doctrine is already strained and has
been criticized, see, e.g., Int'l Soc'y for Krishna Consciousness,
505 U.S. at 693-94 (Kennedy, J., concurring in the judgments);
United States v. Kokinda, 497 U.S. 720, 741-43 & n.1 (Brennan, J.,
dissenting); Del Gallo, 557 F.3d at 69 n.6 (collecting sources), we
question whether this analogy would be the appropriate one.
More specifically, the Court has cautioned that the forum
doctrine should not be extended beyond the context in which "the
open access and viewpoint neutrality commanded by the doctrine is
'compatible with the intended purpose of the property.'" Forbes,
523 U.S. at 672-73 (quoting Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 49 (1983)); accord Summum, 129 S.
Ct. at 1137 ("The forum doctrine has been applied in situations in
which government-owned property or a government program was capable
of accommodating a large number of public speakers without
defeating the essential function of the land or the program."). In
this case, the Town has created a website with the intended purpose
to convey information about itself to its citizens and others, and
it has added a limited number of hyperlinks to external sites,
approved by the Board of Selectmen, in order to further this
purpose. The public forum doctrine could risk flooding the Town
website with private links, thus making it impossible for the Town
-41-
to effectively convey its own message and defeating the very
purpose of the website and the hyperlinks chosen by the Town.
Faced with a rule that would force it to open its website to
private speech to such a degree that it is unable to communicate
its own message, a government entity might reasonably choose to
simply eliminate all external links from its website; thus,
perversely, application of the forum doctrine in this case could
lead to less, not more, speech. See M.J. Dolan, The Special Public
Purpose Forum and Endorsement Relationships: New Extensions of
Government Speech, 31 Hastings Const. L.Q. 71, 134 (2004)
("Recognizing Internet link selection for city web sites as
government speech benefits the speech market overall because a city
will have the opportunity to communicate its own vision of city
attractions and policies, without being hijacked by private
speakers with contrary messages. And given the infinitely open and
extensive communication possible on the Internet, exclusion from a
particular governmental unit's web site in no way inhibits a
private entity's expressive opportunities . . . ."); see also
Forbes, 523 U.S. at 681; Del Gallo, 557 F.3d at 75.
Our decision rests on the facts of this case. It is
possible 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 on its website would be more aptly analyzed as
government regulation of private speech. See Summum, 129 S. Ct. at
-42-
1138 ("To be sure, there are limited circumstances in which the
forum doctrine might properly be applied to a permanent monument --
for example, if a town created a monument on which all of its
residents . . . could place the name of a person to be honored or
some other private message."); Forbes, 523 U.S. at 675(distinguishing, within the broader context of public broadcasting,
a televised political debate, which "was by design a forum for
political speech by the candidates"). But such cases are not
before us today and we do not express an opinion on them. On the
facts of this case, the actions of the Town defendants were
government speech and did not violate the First Amendment.
III.
The district court's orders of April 4, 2008, and
November 13, 2008, are affirmed.
-Dissenting Opinion Follows-
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TORRUELLA, Circuit Judge (Concurring in part and
Dissenting in part). I join the majority in affirming the
dismissal of the plaintiffs' claims on standing and res judicata
grounds, but disagree with its treatment of the plaintiffs' claim
concerning the Town's website. The majority concludes that the
Town's rejection of the plaintiffs' request to put a link to their
organization on the Town's website constitutes government speech
not subject to the First Amendment. I disagree with this holding,
and have significant qualms with the consequences of the majority's
extension of the government speech doctrine to this case.
Moreover, because I believe that there are disputed issues of
material fact with respect to whether the Town intended to create
a public forum on its website and regarding whether the Town
engaged in viewpoint discrimination, I further dissent from the
panel's conclusion on these two issues.
A. Government Speech
The majority holds that the Town's website, and the
Town's rejection of the plaintiffs' request to add a link to their
organization on that website, constitute government speech not
subject to the First Amendment. In support of this position, the
government cites the Supreme Court's recent decision in Pleasant
Grove City v. Summum, 129 S. Ct. 1125 (2009). As discussed in the
majority opinion, Summum concerned a public park that contained
permanent monuments privately donated by third parties. Summum, a
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religious organization, sought to add a permanent monument to the
park espousing its views,14 but the city rejected this request,
claiming inter alia that "its practice was to limit monuments in
the Park to those that 'either (1) directly relate to the history
of Pleasant Grove, or (2) were donated by groups with longstanding
ties to the Pleasant Grove community.'" Id. at 1130 (citations and
quotation marks omitted). The following year the city "passed a
resolution putting this policy into writing." Id. The Supreme
Court held that "[p]ermanent monuments displayed on public property
typically represent government speech," and that, as such, the
city's actions were not subject to the Free Speech Clause. Id. at
1132.
The majority relies on Summum for the proposition that
"when the government uses its discretion to select between the
speech of third parties for presentation through communication
channels owned by the government and used for government speech,
this in itself may constitute an expressive act by the government
that is independent of the message of the third-party speech."
(Op. at 32). Indeed, as the majority notes, the Supreme Court has
upheld a number of instances of governmental discrimination of
third-party speech as part and parcel of government speech, from "a
public library's exercise of judgment in selecting the material it
14
The proposed monument would contain the "Seven Aphorisms of
SUMMUM," which are "[c]entral to Summum religious belief and
practice." Id. at 1129-30 & n.1.
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provides to its patrons," see United States v. Am. Library Ass'n,
539 U.S. 194, 205 (2003), to a public broadcaster's "selection and
presentation of" debate participants. See Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 673 (1998).
In the present case, the majority holds that the Town's
actions constitute "government speech" because the Town
"establish[ed]" 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." (Op. at 33-34). Moreover, the majority
reasons that, as in Summum, the Town similarly did not adopt an
express policy concerning what links it would put on its website
until after it had rejected the plaintiffs' speech. See 129 S. Ct.
at 1134. Following Summum, the majority views the ex post adoption
of a policy as "further evidence that the city was effectively
controlling its message." (Op. at 36). Finally, and although the
plaintiffs dispute this, the majority concludes that the Town,
prior to its written policy, had an "unwritten policy of only
adding links that 'would promote providing information about the
Town,' while refusing to add links that were 'political or
advocate[d] for certain candidates.'" (Id. (emphasis added)).
I disagree that the government speech doctrine
necessarily applies to this case. The Court in Summum emphasized
that "[t]here may be situations in which it is difficult to tell
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whether a government entity is speaking on its own behalf or is
providing a forum for private speech." 129 S. Ct. at 1132. I
believe that this is such a case. As I argue below, there is a
disputed issue of material fact over whether the Town's actions
constituted government speech or, as the plaintiffs contend, the
designation of a public forum as a result of the opening up its
website to outside links. There is also a disputed issue of
material fact over whether the Town engaged in viewpoint
discrimination.
This case also differs from Summum in two other important
respects. Although Summum similarly involved an unwritten policy
of exercising discretion, the Summum Court also relied upon the
history of privately donated monuments to support its conclusion
that "the general government practice with respect to donated
monuments has been one of selective receptivity." Id. at 1133.
There is no such history to support the Town's practice here. The
Summum Court further noted, in response to "the legitimate concern
that the government speech doctrine not be used as a subterfuge for
favoring certain private speakers over others based on viewpoint,"
that formal adoption by the city of the "message" contained in
privately donated monuments was not necessary, since the city's
taking of ownership of the monuments "provided a more dramatic form
of adoption than the sort of formal endorsement that respondent
would demand." Id. at 1134. Unlike in Summum, there were no
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actions taken by the Town with respect to third party links that
mirrors the "dramatic form of adoption" that occurs when a Town
takes ownership of a privately-donated monument. The majority
claims that the Town's acceptance of links is more direct than
assuming ownership of a privately donated monument, but does not
explain why.
What is lacking in this "recently minted" area of the
law, see Summum, 129 S. Ct. at 1139 (Stevens, J., concurring), are
any limiting principles. The majority extends the discrimination-
as-government-speech doctrine to links on a government website. At
least one case, pre-Summum, has also taken that route, although in
that case it was clear that the government was engaging in its own
speech activity. See Page v. Lexington Cty. Sch. Dist. One, 531
F.3d 275 (4th Cir. 2008) (holding, among other things, that
selection of links on a school website constituted government
speech where the school board only added to its site third party
links in support of the board's opposition to a pending bill). By
contrast, in the present case the majority extends the doctrine to
a situation where, in my view, it was not clear that the government
was engaging in speech at the time it was acting, and only
justified its actions after the fact. The majority's position has
the potential of permitting a governmental entity to engage in
viewpoint discrimination in its own governmentally-owned channels
so long as the governmental entity can cast its actions as its own
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speech after the fact. What is to stop a governmental entity from
applying the doctrine to a parade? Cf. Hurley v. Irish-American
Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 574 (1995)
(holding that state public accommodations law could not mandate
inclusion of groups into parade, as parade was expressive conduct,
and "like a composer, the [parade organizer] selects the expressive
units of the parade from potential participants"). Or official
events? See Weise v. Casper, No. 05-02355, 2008 WL 4838682 at *8
(D. Colo. Nov. 6, 2008) (applying government speech doctrine to
dismiss claim that plaintiffs' free speech rights were violated
when they were prevented from attending a speech given by the
President because the plaintiffs' truck contained a bumper sticker
stating "No More Blood for Oil"). It is nearly impossible to
concoct examples of viewpoint discrimination on government channels
that cannot otherwise be repackaged ex post as "government speech."
The majority claims that there may be limits to the
doctrine, "as to the criteria used when the government chooses to
provide hyperlinks to particular private speech and not other
private speech." (Op. at 35). I believe that this is one of those
cases, and, as I argue below, there is sufficient evidence in this
case of viewpoint discrimination to permit the issue to go before
a jury.
The majority further claims that "there are certainly
other restraints on the government in a case such as this." (Op.
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at 35 n.9). It contends in a footnote that "[i]f the voters do not
like those in governance or their government speech, they may vote
them out of office," or, as suggested in Summum, "limit the conduct
of those officials 'by law, regulation, or practice.'" (Id. at 34-
35 n.9 (quoting Summum, 129 S. Ct. at 1132)).15 But even this
remote avenue for relief through political processes becomes
further constrained by expanding the government's ability to
silence opposition by narrowing the fora in which opposing views
may be expressed. Indeed, in permitting the government to use its
governmentally-owned channels to silence its critics in the name of
"government speech," the government speech doctrine, as interpreted
by the majority, puts individuals who oppose the government and its
actions at a structural disadvantage. This is akin to allowing the
government "to fight freestyle, while requiring the other [side] to
follow Marquis of Queensberry rules." R.A.V. v. City of St. Paul,
505 U.S. 377, 392 (1992).16
15
The majority also points to the Establishment Clause as
limiting government speech, which has no application here, and to
the Equal Protection Clause, which the plaintiffs unsuccessfully
invoked here. See Summum, 129 S. Ct. at 1139 (Stevens, J.,
concurring) (mentioning the Establishment Clause and the Equal
Protection Clause as other "constitutional safeguards [that] ensure
that the effect of today's decision will be limited.").
16
In my view, the better course is to adopt the test proposed
by Justice Souter in his concurrence to Summum. Although he joined
the majority in that case, he further noted that:
To avoid relying on a per se rule to say when speech is
governmental, the best approach that occurs to me is to
ask whether a reasonable and fully informed observer
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B. Public Forum
The majority further concludes that the Town's actions
with respect to its website could not be interpreted as designating
the website as a public forum. I disagree. The majority's
concludes that "there is absolutely no evidence that the Town
'intentionally open[ed] a nontraditional forum for public
discourse.'" (Op. at 40 (quoting Del Gallo v. Parent, 557 F.3d 58,
72 (1st Cir. 2009)).17 In doing so, it rejects the plaintiffs'
claim that the Town's inclusion of a link to "Speak Up, Epping"
("SUE") at least indicated that "there were no clear standards for
exclusion or inclusion of third-party links on its website." (Id.
at 39); see also Ridley v. MBTA, 390 F.3d 65, 104 (1st Cir. 2004)
would understand the expression to be government speech,
as distinct from private speech the government chooses to
oblige by allowing the monument to be placed on public
land.
Summum, 129 S. Ct. at 1142 (Souter, J., concurring). Justice
Souter's test has the benefit of preventing ex post rationalization
of viewpoint discrimination as government speech to avoid First
Amendment scrutiny. Rather, the actions of the government would be
evaluated from the perspective of a reasonable observer, and, as I
note below, it is an open question whether a reasonable observer
would construe the Town's actions as government speech, as opposed
to the designation of a public forum or simple run-of-the-mill
viewpoint discrimination.
17
It goes without saying that I agree with the majority's
conclusion that the Town's website is not a traditional public
forum. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 680 (1992) (defining a "traditional public forum" as one
that has "'immemorially . . . time out of mind' been held in the
public trust and used for purposes of expressive activity")
(omission in original).
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(Torruella, J., concurring in part and dissenting in part) ("Courts
will hold that the government did not create a public forum only
when its standards for inclusion and exclusion are clear . . . .")
(citation and quotation marks omitted). But there were, in fact,
no such clear standards. As the undisputed facts demonstrated, the
Town did not adopt any formal policy with respect to links on its
website until after the plaintiffs' sought to include its request.
In fact, at oral argument the Town could not provide a definition
of what that policy was, running through various definitions.
The majority points to the Town's purported "unwritten
policy of only adding links that 'would promote providing
information about the Town,' while refusing to add links that were
'political or advocate[d] for certain candidates,'" (Op. at 35),
but the plaintiffs vigorously disputed the existence of such a
policy, and pointed to the addition of the SUE link as evidence of
a willingness to add outside links without such preconditions.18
While the majority concludes that the addition of the SUE link did
not contradict the Town's unwritten policy, I disagree. In the
absence of a written, publicly available policy, one could
reasonably infer from the Town's inclusion of the SUE link, without
any public process detailing the conditions of inclusion, that it
18
In fact, the very name given to this event, "Speak Up,
Epping," shows that the Town sought to encourage participation in
civic discourse, yet the Town proceeded to exclude the plaintiffs'
participation.
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was willing to open up its website to outside links. See Ridley,
390 F.3d at 104 (Torruella, J., concurring in part and dissenting
in part) ("In determining whether the government has designated
property to be a public forum, we have previously stated that
'actual practice speaks louder than words.'" (quoting Grace Bible
Fellowship, Inc. v. Me. Sch. Admin. Dist. No. 5, 941 F.2d 45, 47
(1st Cir. 1991))).19 Given this reasonable inference of the Town's
actions, I would have permitted the jury to address this question
of intent, rather than affirm the grant of summary judgment here.
See Noonan v. Staples, 556 F.3d 20, 31 (1st Cir. 2009) ("[W]here
'motive and intent play a leading role, summary judgment should not
be granted.'") (citation omitted).
I further disagree with the majority's conclusion that
"the public forum doctrine is not a natural fit for the issues
raised in this case." (Op. at 41). I agree with the majority that
forum analysis "should not be extended beyond the context in which
'the open access and viewpoint neutrality commanded by the doctrine
is compatible with the intended purpose of the property.'" (Op. at
40 (quoting Forbes, 523 U.S. at 672-73). However, the majority's
19
Although the majority notes, correctly, that the plaintiffs
only relied upon the inclusion of the SUE link in support of their
claims, at oral argument the Town admitted that it permitted the
inclusion of links of other organizations, namely the Chamber of
Commerce, that took "'political'" stances. It is unclear why we
are required to ignore such evidence on an issue of such
constitutional importance.
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reasoning for why it should not be extended to this context takes
too limited view of what can be accomplished on the web.
The majority writes that converting the Town website into
a public forum "could risk flooding the Town website with private
links, thus making it impossible for the Town to effectively convey
its own message, and defeating the very purpose of the website and
the hyperlinks chosen by the Town." (Op. at 41). It further
argues that this flood of third party links may force the Town to
take down its website altogether.
I see no reason why this would have to be the case.
Unlike a physical space, where there are limitations on the amount
of speakers it can contain, the Town's website can accommodate a
near infinite number of links, save for minimal storage and server
costs. Moreover, there is no reason why a Town cannot, consistent
with viewpoint neutrality, impose time, manner, and place
restrictions which could contain the flood of private links the
majority imagines will result from opening up the Town's website to
third parties. In fact, consistent with the government speech
doctrine, the Town could engage in preferential treatment of its
own speech on the website while accommodating the speech of others.
And although, as correctly noted by the majority, a citizen can
find another outlet on the internet to express its views, there is
a significant benefit to public debate in allowing a citizen to
express his or her views in the same place as the government. To
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force a citizen to express his or her views elsewhere on the
internet would be akin to banishing a citizen from making his views
known in city hall, but instead on a street corner outside the
building.
C. Viewpoint Discrimination
The majority finally asserts that this is not a case of
viewpoint discrimination, noting that SUE was an event which had
received Town approval, did not have a viewpoint, and that the link
to SUE was from a governmental website. But what is important is
not the status of SUE, but whether the Town's actions in including
a link to SUE and then, abruptly, rejecting a similar request by
the plaintiffs can support a claim of viewpoint discrimination.
The timing of these events, combined with the lack of any clear
policy to support the Town's actions and the evident animosity
between the plaintiffs and the Town all at least raise an inference
of viewpoint discrimination sufficient in my view to at least put
the issue before the jury.20
For all of the above reasons, I respectfully concur in
part and dissent in part.
20
I further cannot ignore the fact that, at oral argument,
counsel for the Town struggled to justify the Town's inclusion of
a Chamber of Commerce link on the Town's website, but not the
plaintiffs' website.
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