First Amendment and the Right To Link
The Putnam Pit, Inc. v. City of
Cookeville, Tennessee
United States Court of Appeals for
the Sixth Circuit
Decided July 19, 2000
OPINION
R. GUY COLE, JR.,
Circuit Judge. Plaintiff, Geoffrey Davidian, appeals the district court's grant
of summary judgment on his claims that the City of Cookeville, Tennessee, and
its city manager, Jim Shipley, violated his First Amendment rights by: 1)
failing to provide him copies of or access to electronic information held by the
city, and 2) refusing to establish a hypertext link from the city's Web site to
the Web site of his publication, The Putnam Pit. For the following reasons, we AFFIRM
the grant of summary judgment with regard to the records challenge, but REVERSE
and REMAND for a trial on the hypertext link claim.
I.
The Putnam Pit, a small,
free tabloid and Web page published and edited by Davidian, is a self-appointed
eye on government corruption for the City of Cookeville. Davidian, who does not
live in Tennessee, originally became interested in Cookeville in 1995 because of
an unsolved murder that occurred in the area. Over the past few years, Davidian,
as editor of The Putnam Pit, has made extensive requests for public information
from the city. For example, a city administrative employee who handled many of
Davidian's requests, estimated that from May 1995 to August 1997, Davidian's
requests occupied 75 to 80 hours of city employee time. Except for those which
are the subject of this suit, most of these requests, even some which duplicated
prior requests, were filled by the city.
Specifically, in July
1997, Davidian requested a copy of the computer files of the outstanding parking
tickets issued by the city. The city did not provide these files in electronic
form, but gave them to Davidian in hard copy. In October 1997, Davidian
requested that the city allow a hyperlink(1) from the city's
Web site to The Putnam Pit Web site, but the city denied that request as well.
In September 1997, the
city passed an ordinance regarding public access to records, including a
specification that the city is not obliged to provide electronic copies of
information when it is not kept in that format in the normal course of business.
In October 1997,
Davidian filed suit in state court against the City of Cookeville and City
Manager Jim Shipley, in his official capacity, for violations of his First
Amendment, due process and equal protection rights, and a variety of state law
claims. Later that month, the city removed the suit to the United States
District Court for the Middle District of Tennessee. The defendants then moved
for summary judgment. On September 21, 1998, the district court granted summary
judgment on the federal claims and dismissed the state claims without prejudice.
Davidian filed a timely appeal. On appeal, he argues that the district court
erred in granting summary judgment on his First Amendment challenges, brought
under 42 U.S.C. § 1983, to the denial of electronic access to the city's
parking ticket records and to the city's refusal to establish a hypertext link
from the city's Web site.(2)
Unfortunately,
the differences between Davidian and the city are not limited to this suit.
Davidian also has another, similar, outstanding suit for alleged violations of
his First Amendment rights by the city. This related suit ("Davidian
II") was filed by Davidian against Cookeville City Attorney T. Michael
O'Mara, in his individual and official capacity, and Shipley, in his individual
and official capacity. In Davidian II, filed under 42 U.S.C. § 1983 in the
United States district court in March 1997, Davidian alleged that his rights
were violated by limiting his access to city records based on his status as an
out-of-state (California) resident and interfering with the distribution of The
Putnam Pit in city buildings. The suit was referred to a United States
magistrate judge, who recommended that the district court grant the defendants'
motion for summary judgment. Although Davidian II was actually filed before the
instant case, the district court granted defendants' summary judgment motion in
Davidian II in February 1999, after summary judgment had been granted in this
case. Davidian appealed again. On April 17, 2000, a panel of this court affirmed
the district court in that case.
II.
This court reviews a
district court's grant of summary judgment de novo. See Smith v. Thornburg, 136
F.3d 1070, 1074 (6th Cir. 1998). Summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). The court must examine all facts and
inferences in the light most favorable to the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III.(3)
Davidian alleges that
the City of Cookeville violated his First Amendment freedom of the press by
denying him access to city parking ticket records in electronic form.
The collection of
information is an important aspect of First Amendment freedoms. See Branzburg v.
Hayes, 408 U.S. 665, 728 (1972) (stating that "without freedom to acquire
information the right to publish would be impermissibly compromised"). This
ability to collect information is not absolute, however. Although the First
Amendment protects information gathering, it does not provide blanket access to
information within the government's control. See Houchins v. KQED, Inc., 438
U.S. 1, 8 (1978).
First,"[t]he First
Amendment does not guarantee the press a constitutional right of special access
to information not available to the public generally." Branzburg, 408 U.S.
at 684. Although some circumstances may dictate distinguishing journalists from
the general public, the difficulty of this court's determining who may be
considered "press" is obvious. See Branzburg, 408 U.S. at 704; see
also Smith v. Plati, 56 F. Supp. 2d 1195, 1203 (D. Colo. 1999) (rejecting claim
of a publisher of an Internet Web site on University of Colorado athletics who
alleged, among other things, that he had been denied press privileges by a
university media liaison). In this case, Davidian, by publishing The Putnam Pit,
is akin to a twenty-first century "lonely pamphleteer," Branzburg, 408
U.S. at 704, whose access to information must be equal to that granted to
members of the public. There is no indication in the record that access to
parking ticket records in electronic form had ever been allowed by the city.
Davidian has no greater right to this information than the general public;
accordingly, the city does not have an affirmative duty to provide this
information to him. See Pell v. Procunier, 417 U.S. 817, 834-35 (1974).
Davidian admits that he
had access to the parking tickets in hard copy, although he complains of being
denied the information in electronic form and being harassed by city officials,
and on one occasion, arriving at city offices and being told that no one could
help him that day.(4) Davidian wrote a story for The Putnam
Pit based on the parking tickets he reviewed. Davidian, however, asserts that,
given the changing nature of the information he sought, electronic access was
necessary.
Davidian has no First
Amendment right to government information in a particular form, as long as the
information sought is made available as required by the First Amendment. See
United States v. McDougal, 103 F.3d 651, 659 (8th Cir. 1996) (denying the press
and public access to videotapes of President Clinton's deposition, where access
to the information contained on these tapes was readily available). This holds
regardless of whether Davidian is considered a member of the press or not. Cf.
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (finding that the
press had no First Amendment right to copies of White House tapes, when it
unquestionably had access to the contents of the tapes and when the public at
large was not given physical access to copies).
Davidian also alleges
harm because of the expense and inconvenience of the one time he traveled to
Tennessee from his home in California to view the ticket records but no one was
available to help him. On this occasion, Davidian sent an e-mail to Shipley
notifying him of Davidian's intent to visit Cookeville to obtain public records
later that week. The next day, Shipley replied that the city employee who could
provide those records would not be available on that date, so Davidian should
come on a different day. When Davidian arrived, he was told that he could not be
helped that day. The denial of access to records on one day does not rise to the
level of a constitutional violation. See Monell v. Department of Social Servs.,
436 U.S. 658, 691(1978) (requiring that a practice "be so permanent and
well settled as to constitute a 'custom or usage' with the force of law"
for purposes of §1983 liability). Accordingly, we reject Davidian's argument.
In sum, we AFFIRM the
district court's grant of summary judgment on Davidian's First Amendment freedom
of the press claim.
IV.
Davidian also alleges
that the City of Cookeville violated his First Amendment rights when it refused
to establish a hyperlink from the city's Web site to The Putnam Pit Web site.
At the time Davidian
requested the link, several for-profit and non-profit entities were linked to
the city's Web site, including a local technical college, two Internet service
providers, a law firm, a local computer club, a truck product manufacturer and
distributor, and a site with information about Cookeville. Cookeville had no
stated policy on who could be linked to the city's Web page prior to Davidian's
request. Instead, the decision to link was controlled by computer operations
manager Steve Corder, who added links as they were requested. Shipley stated
that he did not know what a link was, or that for-profit businesses were linked
to the city's Web page.
When Davidian asked for
a link to be established to The Putnam Pit, Corder notified Shipley of the
request because, as Corder stated in his deposition, "Mr. Davidian and the
Putnam Pit are a very controversial topic and I did not feel it would be in my
own personal best interest to make the decision to or not to link the Putnam Pit
to our Web site."
After learning of
Davidian's request, Shipley decided to limit links from the city's Web page to
non-profit organizations only. He stated at one point, however, that even if The
Putnam Pit were a non-profit organization, he would not have allowed the link.
Shipley then determined that the city only would allow links from the Cookeville
Web site to other sites which would promote the economic welfare, tourism, and
industry of the city. Pursuant to this policy, he denied a link to The Putnam
Pit and had several links to other Web sites removed from the city's page.
Davidian alleges that this denial violated his First Amendment right because the
city has established a designated public forum by allowing links to its site and
that, even if the city has not designated such a forum, he was
unconstitutionally discriminated against by the city based on his viewpoint.
The public forum
analysis, which has traditionally applied to tangible property owned by the
government, is an appropriate means to analyze Davidian's claim. See Rosenberger
v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995) (noting
that the same principles apply to government fora which are "metaphysical,"
as opposed to "spatial or geographic"); United States v. Kokinda, 497
U.S. 720, 727 (1990) ("The mere physical characteristics of the property
cannot dictate forum analysis."); see also Cornelius v. NAACP Legal Defense
& Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (stating that the Court
established the forum analysis "as a means of determining when the
Government's interest in limiting the use of its property to its intended
purpose outweighs the interest of those wishing to use the property for other
purposes").
Therefore, we must
first identify the forum in question here. Davidian has not been denied access
to the Internet - The Putnam Pit operates a Web site without interference from
the City of Cookeville. See Cornelius, 473 U.S. at 801 (looking to the access
sought to determine the appropriate forum). Nor is Cookeville attempting to
forbid a hypertext link from The Putnam Pit to the city's Web site, which would
facilitate a reader's movement from The Putnam Pit's Web page to the city's Web
page. Instead, Cookeville has denied Davidian a link (direct access) from the
city's Web site to The Putnam Pit's Web page.
This Court
distinguishes three kinds of fora: 1) traditional public forum; 2) designated
public forum; and 3) nonpublic forum. See Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983); United Food & Commercial Workers
Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 350 (6th
Cir. 1998).(5)
A.
Traditional public fora,
such as streets, sidewalks, and parks, are "places which by long tradition
or by government fiat have been devoted to assembly and debate." Perry, 460
U.S. at 45. In these areas, the state regulation must withstand strict scrutiny,
i.e., show that a content-based prohibition serves a compelling state interest
and is narrowly tailored. See id. Content-neutral time, place, and manner
restrictions must be narrowly tailored, serve a significant public interest, and
allow ample alternative avenues of communication. See id.
The Internet, a recent
technological development, clearly has not been "time out of mind, . . . used
for purposes of . . . communicating thoughts between
citizens, and discussing public questions." Hague v. Committee for Indus.
Org., 307 U.S. 496, 515 (1939). Even if public fora are not limited by their
historic confines, these places still must, by definition, be "open for
expressive activity regardless of the government's intent." Arkansas Educ.
Television Comm'n v. Forbes, 523 U.S. 666, 678 (1998); see also Cornelius, 473
U.S. at 800 (looking to those places which have among their purpose the "free
exchange of ideas"); International Soc'y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 697-98 (1992) (Kennedy, J., concurring) ("[O]pen, public
spaces and thoroughfares that are suitable for discourse may be public forums,
whatever their historical pedigree and without concern for a precise
classification of the property. . . . Without this recognition our forum
doctrine retains no relevance in times of fast-changing technology and
increasing insularity.") Aspects of cyberspace may, in fact, fit into the
public forum category, although the Supreme Court has also suggested that the
category is limited by tradition. Compare Forbes, 523 U.S. at 679 ("reject[ing]
the view that traditional public forum status extends beyond its historic
confines") with Reno v. ACLU, 521 U.S. 844, 851-53 (1997) (recognizing the
communicative potential of the Internet, specifically the World Wide Web). The
municipal Web site and the hyperlink to that site sought by Davidian, however,
do not allow for open communication or the free exchange of ideas between
members of the public. Therefore, as Davidian concedes, the forum in question is
not a traditional public forum.
B.
The other two
categories of fora are "designated public fora" and "nonpublic
fora." In a designated public forum, the government "intentionally
open[s] a nontraditional public forum for public discourse." Cornelius, 473
U.S. at 802; see also Forbes, 523 U.S. at 679. In such fora, the same standards
apply as to traditional public fora to at least some of the government's
decisions; in other words, government restrictions must be narrowly tailored to
serve a significant government interest and must leave open ample alternative
channels of communication. See Pouillon v. City of Owosso, 206 F.3d 711, 715
(6th Cir. 2000) (citing Perry, 460 U.S. at 44-46). On the other hand, these
strict standards may not be applicable to those to whom the forum was not opened
or to content that is not within the scope of the forum. See id. (stating that
strict scrutiny applies during the time the forum is open); see also Denver Area
Educ. Telecomms. Consortium, Inc. v. Federal Communications Comm'n, 518 U.S.
727, 750 (1996) ("Our cases have not yet determined, however, that
government's decision to dedicate a public forum to one type of content or
another is necessarily subject to the highest level of scrutiny.") In
nonpublic fora, the government may impose restrictions if the regulation is
reasonable. See Perry, 460 U.S. at 46.
B.
1.
We use a
two-step analysis to determine whether the government intended a location to be
a designated public forum or, instead, a nonpublic forum.
First, we
look to whether the government has made the property generally available to an
entire class of speakers or whether individual members of that class must obtain
permission in order to access the property. Second, we look to whether the
exclusion of certain expressive conduct is properly designed to limit the speech
activity occurring in the forum to that which is compatible with the forum's
purpose. UFCW, 163 F.3d at 352.
Cookeville, regardless
of the access policy in place, has continually established links from the city's
Web site to other Web sites on an individualized basis. Its initial process, in
which users requested a link from Corder, clearly did not open up access to any
specified group of users. Under the proposed "non-profit only"
standard, or the final standard adopted, the city continued to review, on a
case-by-case basis, whether or not the proposed linked site met the standard.
For example, pursuant to the implementation of its final policy, the city took
away several existing links to sites because the sites were incompatible with
the policy. Cookeville has not provided open access to links to the city's site,
whereby anyone could set up their own link from the city's site to an outside
Web site without going through the city on a one-by-one basis.
Second, we scrutinize
"whether the government-imposed restriction on access to public property is
truly part of 'the process of limiting a nonpublic forum to activities
compatible with the intended purpose of the property.'" UFCW, 163 F.3d at
351-52 (quoting Perry, 460 U.S. at 49). Both the city's stated purpose and the
nature of the forum are relevant to this determination. See Perry, 460 U.S. at
47 (examining government policy and the uses of the forum); Cornelius, 473 U.S.
at 804-805 (examining the government's policy, historic use, and nature of the
forum); ISKCON v. Lee, 505 U.S. at 695 (Kennedy, J., concurring) (stating that
"the inquiry must be an objective one, based on the actual, physical
characteristics and uses of the property"). Shipley stated in an affidavit
that the purpose of the city's Web site was "to publish, electronically,
information to Internet users about the benefits and opportunities afforded
within the community to its citizens and visitors" which included "messages
from city officials; council meeting agendas, . . . job opportunities in city
government; information about building permits; property taxes and the like."
Shipley stated that he
did not understand the link process, and initially delegated anything concerning
the Web site to Corder. As noted above, the structure of the forum, as
established by Cookeville, does not allow free and open dialogue between users;
it primarily serves to convey information to the reader. This structure is
consistent with the city's stated goals for the Web site, and is a further
indication that the forum in question should not be considered a designated
public forum. Cf. UFCW, 163 F.3d at 353-55 (holding that the government had
created a public forum in advertising space on its transit system, where the
inclusion of advertisements like the one challenged was not incompatible with
the forum's purpose, and that advertising of a similar nature had previously
been accepted on the system). "Were we to hold to the contrary, display
cases in public hospitals, libraries, office buildings, military compounds, and
other public facilities immediately would become Hyde Parks open to every
would-be pamphleteer and politician. This the Constitution does not require."
Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (finding that the
advertising space on city transit vehicles was not a forum, because the
restrictions were aligned with the purpose of the asserted forum, and upholding
a ban on political advertisements). Therefore, we conclude that the city's Web
site, which established links to other Web sites, is a nonpublic forum under the
First Amendment.
B.
2.
In both designated
public fora and nonpublic fora, the government may not discriminate based upon
the viewpoint of the speaker. See, e.g., Cornelius, 473 U.S. at 806 (nonpublic
forum case). "[T]he government violates the First Amendment when it denies
access to a speaker solely to suppress the point of view he espouses on an
otherwise includible subject." Id.; cf. Board of Regents of the Univ. of
Wisc. Sys. v. Southworth, 120 S. Ct. 1346 (2000) (requiring viewpoint neutrality
in a student program to facilitate extracurricular speech and activities).
"When the government targets not subject matter, but particular views taken
by speakers on a subject, the violation of the First Amendment is all the more
blatant. Viewpoint discrimination is thus an egregious form of content
discrimination." Rosenberger, 515 U.S. at 829 (internal citations omitted).
In regulating a
nonpublic forum, the city of Cookeville's policy, in addition to being
reasonable in light of the city's interest, must also be viewpoint neutral.
Although the avoidance of controversy is not a valid ground for restricting
speech in a public forum, a nonpublic forum by definition is not dedicated to
general debate or the free exchange of ideas. The First Amendment does not
forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic
forum and hinder its effectiveness for its intended purpose.
Cornelius, 473 U.S. at
811. Therefore, while the city may "restrict use to those who participate
in the forum's official business," Perry, 460 U.S. at 53, it may not do so
based on viewpoint. In other words, Davidian has no entitlement to a link to the
city's Web site, however, he may not be denied one solely based on the
controversial views he espouses, without regard for the forum's purpose and
structure. This requirement that the city act without regard to viewpoint leads
us to hold that Davidian has raised an issue of material fact as to whether the
city's actions violated his First Amendment rights because they were based on
impermissible viewpoint discrimination.
The city's
establishment of a policy to limit the pool of persons who might be linked to
the city's Web page is reasonable. The city has legitimate interests in keeping
links that are consistent with the purpose of the site - providing information
about city services, attractions, and officials. Further, the city argues that
it had an interest in allowing a relatively limited number of links to its site,
so as to avoid a cacophony of speakers which might drown out the city's
information or cause the city to eliminate its site altogether. See Forbes, 523
U.S. at 681 (noting that the government might choose to close a forum rather
than be subjected to uncontrolled access or First Amendment liability). The Web
is not constrained by the same "logistical," spatial limitations faced
by the public broadcasters in Forbes. See id. Thus, this objection is more
appropriately seen as a variation of the city's legitimate interest in
establishing parameters of the site that are grounded in the site's purpose. The
lack of established city policy in this area of developing technology is not
fatal to the city's attempt to structure its Web site. In addition, Davidian has
numerous alternative means of communicating his information; The Putnam Pit Web
site has operated throughout this litigation, and although it is not linked to
Cookeville's site, it can be accessed through a variety of other means.
Nevertheless, the
requirement that Web sites eligible to be linked to the city's site promote the
city's tourism, industry, and economic welfare gives broad discretion to city
officials, raising the possibility of discriminatory application of the policy
based on viewpoint. Cf. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.
750, 758 (1988) (discussing, in the context of whether or not to permit a facial
challenge to a government policy, the danger of viewpoint discrimination under
policies that provide few standards). In fact, the city's implementation of
these policies suggests viewpoint discrimination. See UFCW, 163 F.3d at 357 (examining
the city's application of its policy). Although Corder had not refused a link to
others who had requested one, when Corder was asked by Davidian to establish a
link, Corder reported the request to Jim Shipley. Corder considered Davidian
controversial "because of the content of his Web site and the manner in
which he behaves when he comes to City Hall." Likewise, Shipley stated in
his deposition that he thought The Putnam Pit consisted only of Davidian's
opinions, which he "didn't care for" and that the paper distorted the
truth. In response, Shipley suggested that the city limit links to its Web site
to non-profit Web sites. When Davidian asked whether he would be allowed a link
if he were a non-profit, Shipley indicated that he would not. The city then
developed its current standard, requiring linked sites to promote the economic
welfare, industry, or tourism of the city. The implementation of this new policy,
which was at least stimulated by Davidian's request, was then used to deny
Davidian's Putnam Pit site a link to the city's Web page. Cf. ISKCON, 505 U.S.
at 687 (stating that nonpublic forum status "does not mean that the
government can restrict speech in whatever way it likes"). The city's
actions, some of which appear to be tied to the city's interests, and others
which appear less clearly relevant to the purpose of the city's Web site, lead
us to REVERSE the district court's grant of summary judgment because Davidian
has raised a material issue of fact regarding whether the city discriminated
against him and his Web site based upon viewpoint.
V.
For the foregoing
reasons, we AFFIRM the district court's grant of summary
judgment on Davidian's claim that his First Amendment rights were violated by
the city's failure to provide him with electronic parking ticket records, and REVERSE
and REMAND to the district court, for further proceedings
consistent with this opinion, on Davidian's claim that his First Amendment
rights were violated by denial of a hyperlink to the city's Web site.
FOOTNOTES:
1. A hyperlink, or "link,"
connects one Web site to another, so that a user can move directly from one Web
site to a second.
2. Davidian filed a motion to consider
newly discovered evidence on February 10, 2000 and filed a supplement to the
motion on March 16, 2000. These motions are denied by the court.
3. As an initial matter, we reject the
city's argument that this appeal is barred by the district court's summary
judgment in Davidian II because of issue or claim preclusion. Issue preclusion
applies "(1) when the issue presently asserted was actually litigated in an
earlier trial, (2) when it was actually and necessarily determined by a court of
competent jurisdiction, and (3) when preclusion in the second trial does not
work an unfairness." United States v. Berman, 884 F.2d 916, 922 (6th Cir.
1989). Claim preclusion prohibits the "'parties or their privies from
relitigating issues that were or could have been raised' in a prior action."
Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995) (quoting Federated
Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). To find claim
preclusion, there must be: "(1) a final decision on the merits by a court
of competent jurisdiction; (2) a subsequent action between the same parties or
their privies; (3) an issue in the subsequent action which was litigated or
which should have been litigated in the prior action; and (4) an identity of the
causes of action." Id. Although the two suits are related, the factual
circumstances upon which they are based are distinct; specifically, the events
which form the basis of the suit before this panel occurred after the filing of
Davidian II in March 1997. Accordingly, neither claim preclusion nor issue
preclusion bars this action.
4. Davidian alleges that, on another
occasion for a different request, he was given the same response.
5. These are the three categories of fora
presently recognized in this circuit. We note, however, that there has been some
uncertainty among the circuits as to whether there are one or two categories of
fora other than "public" and "nonpublic," and what
protection is due to these categories. Some courts have analyzed separate
categories of "designated" and "limited" public fora, while
others have found only one other category. See, e.g., The Good News Club v.
Milford Centr. Sch., 202 F.3d 502, 508-09 (2d Cir. 2000) (drawing no distinction
between designated and limited public fora, and stating that restrictions on
these limited public fora must be "reasonable and viewpoint neutral");
Whiteland Woods, L.P. v. Township of W. Whiteland, 193 F.3d 177, 182 n.2 (3d Cir.
1999) (stating that the designated forum is a nontraditional forum opened for
"public discourse," but that the Court has also "discussed 'limited'
public fora, which are designated for expression, but only on limited topics,"
and choosing to treat both categories under the stricter standards for
designated public fora); Warren v. Fairfax County, 196 F.3d 186, 193-94 (4th Cir.
1999) (en banc) (treating designated and limited public fora as the same
category, and setting up two standards for this forum - an "internal"
standard, which gives strict scrutiny protection for the class of speakers to
whom the forum was opened and an "external" standard, which "places
restrictions on the government's ability to designate the class for whose
especial benefit the forum has been opened"); DiLoreto v. Downey Unified
Sch. Dist. Bd. of Educ., 196 F.3d 958, 964-65 (9th Cir. 1999) (distinguishing
between a designated public forum, which is a nontraditional forum intentionally
opened for public discourse that receives the same First Amendment protection as
a traditional public forum, and a limited public forum, which is "a type of
nonpublic forum that the government intentionally has opened to certain groups
or to certain topics," but noting that the contours of these fora have not
been clearly defined by the Court).
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