Middle District of Tennessee Northeast
Division at Cookeville
decided September 21, 1998
E M OR A N D U M
Court has before it the defendants' motion (filed July 20, 1998; Docket Entry No. 30) for summary judgment; their
memorandum (Docket Entry No. 31) in support; and the plaintiffs' response
(filed August 10, 1998; Docket Entry No. 36)
Court has subject matter jurisdiction over the plaintiffs' federal claims under
42 U.S.C. § 1983, pursuant to 28 U.S.C. § 1943.
reasons discussed below, the defendants' motion for summary judgment will be
granted as to the federal claims. The state law claim under the Tennessee Public
Records Act will be dismissed without prejudice.
plaintiffs, The Putnam Pit, Inc., and Geoffrey Davidian,(1)
filed this action in the Chancery Court of Putnam County, Tennessee, on October
3, 1997, pursuant to 42 U.S.C. § 1983,against the City of Cookeville and Jim
Shipley, the city manager of the City of Cookeville, in his official capacity.
On October 27,1997, the defendants filed a notice of removal in federal court.
Notice of removal (filed October 27, 1997; Docket Entry No. 1). In their second
amended complaint, the plaintiffs allege that the defendants violated their
rights to free speech, due process, and equal protection under the law as
guaranteed by the First and Fourteenth Amendments of the United States
Constitution. See second amended complaint (filed September 8, 1998; Docket
Entry No. 41). Further, the plaintiffs allege a state law claim under the
Tennessee Public Records Act.
Putnam Pit, Inc., consists of a newspaper and web page, which focuses its
commentary on the local government of the City of Cookeville. Mr. Davidian is
the editor and publisher of the newspaper and web page. In July of 1997, Mr.
Davidian sought a copy of the electronic computer files concerning information
regarding parking tickets issued by the City. The City would not provide Mr.
Davidian with a copy of the electronic file containing such information or allow
him to inspect it but provided Mr. Davidian with hard copies of parking ticket
August 12, 1997, Mr. Davidian asked Mr. Shipley for all "cookie" files
in the City's computers that would allegedly show whether City computers had
been used to browse Internet sites inconsistent with government functions. Mr.
Shipley consulted Mr. Steve Corder, the City computer operations manager, who
determined the cost to the City to perform such a task. Based on this assessment,
Mr. Shipley asked Mr. Davidian to pay a deposit for these costs. However,
approximately two weeks later, Mr. Shipley informed Mr. Davidian by letter that,
based on Microsoft's definition of a "cookie" file, a "cookie"
is "neither the property of the City nor a public record, and accordingly
they would not allow the inspection request." Defendants' memorandum
(Docket Entry No. 31) at 4.
October 1, 1997, the plaintiffs again sought access to cookie files and parking
tickets by letter sent to Mr. Shipley. On October 2, 1997, Mr. Shipley informed
the plaintiffs by e-mail that Mr. Davidian could not inspect the cookie files on
the City's computers, and that he would have to reschedule a time to see the
police data on the parking tickets, as no one was available to assist him. Mr.
Davidian alleges that on October 3, 1997, he requested to see the paper
documents of parking tickets and was told to contact the City manager's office.
Mr. Davidian alleges that he was told by the City manager's office that he would
not be allowed to see any parking tickets that day. On October 31, 1997,the
plaintiffs requested by fax and e-mail to inspect the City's Internet files
including browser and cache files. On that same date, Mr. Shipley responded by
e-mail that such files are not public records and are destroyed daily. (3)
memorandum, however, the plaintiffs state that on November 3, 1997, Mr. Davidian
was allowed to view Internet files, but the inspection revealed that no
information was available. Mr. Davidian alleges that he asked for another
inspection later that day, but was refused by the defendants.
fall of 1997, the plaintiffs also asked to have a link (4)
from the City's web site. Mr. Corder referred the request to Mr. Shipley. Mr.
Shipley contends that he was not aware that private businesses had a link from
the City's web site, and after learning this information, he first decided to
remove all for-profit entities linked from the City's web site. On October 31,
1997, via e-mail, Mr. Shipley informed the plaintiff that the City was declining
the plaintiffs' request because links were to be limited to non-profit entities.
further consideration, however, Mr. Shipley decided that the policy concerning
links from the City's web site would be to"limit 'links' to entities that
promote the economic welfare, tourism and industry in Cookeville."
Defendants' memorandum(Docket Entry No. 31) at 5. As the defendants contend that
Putnam Pit, Inc., does not meet that criteria, they have denied the plaintiffs a
link from the City's web page to the plaintiffs' web page.
provided by Federal Rule of Civil procedure 56 (c), summary judgment "shall
be rendered forthwith if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law." Anderson v Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202, 211(1986). In its consideration of
the evidence, the Court must view all facts and inferences to be drawn therefrom
in the light most favorable to the non-moving party. Davidson & Jones Dev.
Co. v. Elmore Dev. Co., 921 F.2d 1343, 1349 (6th Cir. 1991) In order to prevail
on a summary judgment motion, the moving party bears the burden of proving the
absence of a genuine issue of material fact concerning an essential element of
the opposing party's action. Celotex Corp. v Catrett, 477 U.S.. 317, 323, 106
S.Ct. 2548, 2553,91 L.Ed.2d 265, 274 (198e); Davidson & Jones Dev. Co., 921
F.2d at1349; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir.1989). An issue of material fact is one which, under the substantive law
governing the issue, might affect the outcome of the suit. Liberty Lobby, 477
U.S. at 248, 106 S.Ct. at 2510, 91L.Ed.2d at 211.
addition, a dispute about the material fact must be genuine, that is, "the
evidence is such that a reasonable jury could return a verdict for the
Id. at 248,106 S.Ct. at 2510, 91 L.Ed.2d at 211-12. Since the preponderance of
the evidence standard is used in this determination, more than a mere scintilla
of evidence in support of the plaintiff's position is required. Id. at 252, 106
S.Ct. at 2512, 91 L.Ed.2d at 214.
motion for summary judgment has been made, "the nonmoving party bears the
responsibility to demonstrate that summary judgment is inappropriate under Rule
56 (e)" Davidson & Jones Dev. Co., 921 F.2d at 1349. The non-moving
party may not merely rest on conclusory allegations contained in the complaint,
but must respond with affirmative evidence supporting its claims and
establishing the existence of a genuine issue of material fact. Celotex 477 U.S.
at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274; Cloverdale Equip. Co. v. Simon
Aerials. Inc., 869 F.2d 934, 937 (6th Cir1989). While the disputed issue does
not have to be resolved conclusively in favor of the non-moving party to defeat
summary judgment, "sufficient evidence supporting the claimed factual
dispute" must be shown, thereby requiring resolution of the parties'
differing versions of the truth by a jury or judge. Liberty Lobby, 477 U.S. at
249, 106 S.Ct. at 2510, 91 L.Ed.2d at212; First Nat'l Bank v. Cities Serv. Co.,
391 U.S. 253, 289,88 S.Ct. 1575, 1592, 20 L.Ed.2d 569, 592 (1968).
plaintiffs allege violations of 42 U.S.C. § 1983, claiming the defendants have
denied Mr. Davidian access to public records and to the City's web page and have
acted arbitrarily, capriciously, and inequitably in the application of their
1983 provides a remedy against any person who, under color of state law,
deprives another of rights protected by the United States Constitution. There
are two essential elements to an action under Section 1983: (1) whether the
conduct complained of was committed by a person acting under color of state law;
and(2) whether the conduct deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United States. 42 U.S.C.
plaintiffs argue that the defendants actions have violated the plaintiffs'
rights to free speech and freedom of the press in violation of the First
Amendment. The plaintiffs also contend that their rights to due process and
equal protection under the Fourteenth Amendment have been violated by the
right of access to computer files
plaintiffs concede that "denial of access to the parking ticket records to
download in electronic form is not a per se violation of the First
Amendment." Plaintiffs' memorandum (Docket Entry No. 36) at 5. However, the
plaintiffs argue that "denial to inspect the computer records as well as
paper records of parking violations" is a violation of the First Amendment.
Id. The plaintiffs further argue that "the First Amendment was implicated
when the plaintiffs were denied access to the Internet files." Id. at 6.
United States Supreme Court has held:
First and Fourteenth Amendments bar government from interfering in any way with
a free press. The Constitution does not, however, require government to accord
the press special access to information not shared by members of the public
generally. It is one thing to say that a journalist is free to seek out sources
of information not available to members of the general public, that he is
entitled to some constitutional protection of the confidentiality of such
sources, and that government cannot restrain the publication of news emanating
from such sources. It is quite another thing to suggest that the Constitution
imposes upon government the affirmative duty to make available to journalists
sources of information not available to members of the public generally. That
proposition finds no support in the words of the Constitution or in any decision
of this Court.
Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495, 508 (1974) (footnotes
omitted) (citations omitted). See also Branzburg v. Hayes, 408 U.S. 665, 684, 92
S.Ct. 2646, 2658, 33 L.Ed.2d 626, 641 (1972) ("It has generally been held
that the First Amendment does not guarantee the press a constitutional right of
special access to information not available to the public generally."); see
Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271,1281, 14 L.Ed.2d 179, 190 (1965)
("The right to speak and publish does not carry with it the unrestrained
right to gather information."). Moreover, in Houchins v. KOED. Inc. 438
U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), the Supreme Court held that
"[n]either the First Amendment nor the Fourteenth Amendment mandates a
right of access to government information or sources of information within the
government's control." Id. at 15, 98 S.Ct. at 2597, 57 L.Ed.2d at 565.(6)
instant case, there is no genuine issue of material fact on the issue of whether
the information that the plaintiffs have requested is available to members of
the public generally. In the defendants' statement of undisputed facts, they
state that [e]xcept
for one occasion where Geoffrey Davidian was allowed to see on one of the City
computer screens that Internet "cookie" files are not retained on the
City's computers, the City of Cookeville has not now and never has allowed the
general public nor members of the press to inspect records of Internet usage on
statement (filed July 20, 1998; Docket Entry No. 35)¶ 1. The plaintiffs'
response is "[a]dmitted." Plaintiffs' response to defendants'
statement (filed August 10, 1998; Docket Entry No. 37) ¶ 1. Likewise, the
defendants state that "[t]he City of Cookeville does not now nor has it
ever made parking ticket data in electronic form available to the general public
or press. Defendants' statement (Docket Entry No. 35) ¶ 2. Again, the
plaintiffs' response is "[a]dmitted." Plaintiffs' response to
defendants' statement (Docket Entry No. 37) ¶ 2. Thus, there appears to be no
genuine issue of material fact on this issue.
plaintiffs argue that the Tennessee Public Records Act grants the public access
to the records at issue in this case. While this may be true and could
consequently result in a violation of state law, that Act does not, in and of
itself, mean that the City of Cookeville has, in actuality, traditionally
allowed the public access to the records at issue. As that is the crucial issue
in determining whether the plaintiffs have a First Amendment right to access the
City's computer records, and there is an absence of a genuine issue of material
fact regarding that issue, the defendants' motion for summary judgment must be
granted as to the federal claim based on the First Amendment.
Court also notes that the defendants state that the "(plaintiffs have ready
access to the parking ticket data in paper, hard copy form, the form in which it
is and has been available to the public generally." Defendants' memorandum
(Docket Entry No. 31) at 9. The plaintiffs argue, however, that they were denied
access to parking ticket records in their paper form on October 3, 1997, and
thus, they still have a First Amendment claim on that basis. The Court disagrees.
to the plaintiffs' complaint, Mr. Davidian was simply told he "would not be
allowed to see any parking ticket records that day." Second amended
complaint (Docket Entry No. 41)¶ 14 (emphasis added). It is clear that the
plaintiffs have been given hard copies of parking ticket records on other
occasions. Thus, the plaintiffs base their First Amendment claim on one incident
in which they were told that they could not see records on that day. Such an
isolated incident does not rise to the level of a First Amendment claim.
Accordingly, the defendants' motion for summary judgment on the plaintiffs'
First Amendment claim concerning access to computer files shall be granted.
right to be linked from web site
plaintiffs argue that the City's web page is a public forum because it has
"allow[ed] other web pages to link up with the City's page."
Plaintiffs' memorandum (Docket Entry No. 36) at 11.The defendants, on the other
hand, assert that the web page is not a public forum because only the City is
allowed to communicate its message on the web page, and that message is limited
to City government services and the benefits and opportunities of living in or
visiting Cookeville. The City concedes, however, that it does allow two entities
to have a link from the City's web page because they promote economic welfare,
tourism, and industry in Cookeville. Thus, the defendants argue that, at the
most, the City's web page constitutes a non-public forum, which is subject only
to the reasonableness test.
Court [has] identified three types of fora: the traditional public forum, the
public forum created by government designation, and the nonpublic forum."
Traditional public fora are defined by the objective characteristics of the
property, such as whether, "by long tradition or by government fiat,"
the property has been "devoted to assembly and debate." The government
can exclude a speaker from a traditional public forum "only when the
exclusion is necessary to serve a compelling state interest and the exclusion is
narrowly drawn to achieve that interest."
public fora, in contrast, are created by purposeful governmental action. "The
government does not create a [designated) public forum by inaction or by
permitting limited discourse, but only by intentionally opening a nontraditional
public forum for public discourse." Hence "the Court has looked to the
policy and practice of the government to ascertain whether it intended to
designate a place not traditionally open to assembly and debate as a public
forum." If the government excludes a speaker who falls within the class to
which a designated public forum is made generally available, its action is
subject to strict scrutiny.
government properties are either nonpublic fora or not fora at all. The
government can restrict access to a nonpublic forum "as long as the
restrictions are reasonable and [are] not an effort to suppress expression
merely because public officials oppose the speaker's view."
Educ. Television Comm'n v. Forbes, __ U.S. __, 118 S.Ct. 1633, 1641, 140 L.Ed.2d
875, 886-87 (1998) (citations omitted). In Cornelius v NAACP Legal Defense and
Educational Fund Inc.,473 U.S. 788, 803, 105 S.Ct. 3439, 3449, 87 L.ED.2d 567,
580 (1985), the Supreme Court held that "[not every instrumentality used
for communication, however, is a traditional public forum or a public forum by
designation." Likewise, in Lehman v City of Shaker Heights, 418 U.S. 298,
304, 94 S.Ct. 2714, 2718, 41 L.Ed.2d770, 778 (1974), the Supreme Court held that
"[w]ere 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."
traditional public forum includes public streets and parks which "have
immemorially been held in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions." Hague v. Comm for Indus Org., 307 U.S.
496,515, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436 (1939) (Roberts, J., concurring).
"The Court has rejected the view that traditional public forum status
extends beyond its historic confines." Forbes, 118 S.Ct. at 1641, 140
L.Ed.2d at 887. It is clear that unlike public streets and parks, web pages on
the Internet have not by long tradition or government fiat been devoted to
assembly and debate; nor has the City's web page immemorially been held in trust
for the use of the public. Accordingly, the Court finds that the City's web page
does not fit into the mold of the traditional public forum.
designated public forum is created when the government purposefully "open[s]
additional properties for expressive use by the general public or by a
particular class of speakers." Id. The Forbes Court goes on to explain that
"the government must intend to make the property 'generally available' to a
class of speakers." A designated public forum is not created when the
government allows selective access for individual speakers rather than general
access for a class of speakers." Id at 1642, 140 L.Ed.2d at 887 (citation
omitted). The Court further emphasized that the government does not create a
designated public forum when it
does no more than reserve eligibility for access to the forum to a particular
class of speakers, whose members must then, as individuals, "obtain
permission" to use it.
. . .
Cornelius distinction between general and selecting access furthers First
Amendment interests. By recognizing the distinction, we encourage the government
to open its property to some expressive activity in cases where, if faced with
an all-or-nothing choice, it might not open the property at all. That this
distinction turns on governmental intent does not render it unprotective of
speech. Rather, it reflects the reality that, with the exception of traditional
public fora, the government retains the choice of whether to designate its
property as a forum for specified classes of speakers.
1642, 140 L.Ed.2d at 888 (citation omitted).
this analysis, the Court finds that the City of Cookeville has not created a
designated public forum by establishing a web page and allowing links on a
selective basis. The plaintiffs argue that the web page was designated as a
public forum by the City because at the time Mr. Davidian made his request to
have a link from the City's web page, other web pages were allowed to have a
link from the City's web page after asking Mr. Corder to allow them to do so.
the Court notes that the City now has a policy in effect regarding links from
its web page which was not in effect at the time of Mr. Davidian's request. Even
though the City's policy may have been spurred by Mr. Davidian's request, the
Supreme Court has held that the government "is not required to indefinitely
retain the open character of the facility." Perry Educ Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 805
(1983). Thus, even if at one time links from the City's web page were
unintentionally generally available to the public or a class of speakers,(7)
the City has now established a policy of selective access to the links, and it
was the City's prerogative to do so.
the Court recognizes that at the time Mr. Davidian had made his request, Mr.
Corder had assumed authority over the links on the web page because he was the
computer manager but not because he was the individual responsible for making
such decisions. Mr. Shipley stated in his deposition that until Mr. Corder
brought Mr. Davidian's link request to him, he "didn't even know what a
local link was." Exhibits (filed July 20, 1998; Docket Entry No. 32) tab 3,
at 52. Once Mr Shipley found out what a local link was and that private
businesses were linked from the City's web site, he removed them(8)
because he didn't "like the City of Cookeville to endorse any local
business, endorse any attorney's practice, or air-conditioning service, or
anything else, and I felt that would give the impression we were doing that."
Id. at 54
Shipley further testified that he, as the City manager, is responsible for
setting the policy for linking from the City's web page and that he decides
"that a particular web page has or does not have the type of information"
that would permit it to be linked from the City's web page. Id at 58. It is
undisputed that Mr. Shipley is the decisionmaker for the City in this respect,
and not Mr. Corder. As noted earlier, the Supreme Court has held that the "government
does not create a (designated] public forum by inaction or by permitting limited
discourse, but only by intentionally opening a nontraditional public
forum for public discourse." Forbes, 118 S.Ct. at 1641, 140 L.Ed.2d at 886
(citation omitted) (emphasis added). Accordingly, Mr. Corder's actions are
irrelevant, as it appears that Mr. Corder accidently assumed authority for the
links by virtue of his position as computer manager, when no such authority
nature of the links was realized by Mr. Shipley, he, as the City manager
responsible for making such decisions, established a policy concerning links
from the City's web site. Mr. Shipley first decided that links should only be
allowed for entities which operated on a not-for-profit basis. However, after
further consideration, Mr. Shipley decided that the better policy was one that
comported with the purpose of the web page, which was to promote tourism,
economic welfare, and industry in Cookeville.(9)
It is clear that the City has done "no more than reserve eligibility for
access to the forum to a particular class of speakers, whose members must then,
as individuals, 'obtain permission' to use it." Forbes, 118 S.Ct. at 1642,
140 L.Ed.2d at 888 (citations omitted) Accordingly, the Court finds that the
City has not created a designated public forum by allowing selective access to
links on its web page.
Court has rejected the plaintiffs' contention that the City's web page is a
traditional public forum or a designated public forum, the City's web page must
be a non-public forum.
over access to a nonpublic forum can be based on subject matter and speaker
identity so long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral. Although a speaker may be
excluded from a nonpublic forum if he wishes to address a topic not encompassed
within the purpose of the forum, or if he is not a member of the class of
speakers for whose special benefit the forum was created, the government
violates the First Amendment when it denies access to a speaker solely to
suppress point of view he espouses on an otherwise includible subject.
. . . .
Government's decision to restrict access to a nonpublic forum need only be
reasonable; it need not be the most reasonable or the only reasonable limitation.
In contrast to a public forum, a finding of strict incompatibility between the
nature of the speech or the identity of the speaker and the functioning of the
nonpublic forum is not mandated.
473 U.S. at 806-808, 105 S.Ct. at 3451-52, 87 L.Ed.2d at582-584 (citations
the current policy of the City of Cookeville, only two entities are allowed to
be linked from the City's web page, the Upper Cumberland Virtual Community (10)
and Tennessee Technological University. The defendants assert that "[t]he
decision of the City of Cookeville to limit the subject matter of its web site
to the promotion of commerce is reasonable in light of the disruptions to the
City's ability to communicate its own messages if it were required to allow any
and every other operator of a web site to be linked to the City's web site."
Defendants' memorandum (Docket Entry No. 31) at 13. The Court agrees.
definition of a non-public forum allows the City to exclude the plaintiffs on
the basis of subject matter and speaker identity. In Perry, the Supreme Court
pointed out that:
in the concept of the nonpublic forum is the right to make distinctions in
access on the basis of subject matter and speaker identity. These distinctions
may be impermissible in a public forum but are inherent and inescapable in the
process of limiting a nonpublic forum to activities compatible with the intended
purpose of the property. The touchstone for evaluating these distinctions is
whether they are reasonable in light of the purpose which the forum at issue
460 U.S. at 49, 103 S.Ct. at 957, 74 L.Ed.26 at 807. Accordingly, the Court
rejects the plaintiffs' argument that they should be allowed a link from the
City's web page because, in their opinion, Putnam Pit, Inc.'s web page promotes
Cookeville in that "the public will view Cookeville favorably if they see a
town with a news publication that seeks to root out corruption." Plaintiffs'
memorandum (Docket Entry No. 36) at 12. The plaintiffs' opinion is irrelevant
where the defendants have acted reasonably in denying the plaintiffs a link from
the City's web page and where the plaintiffs' goals are incompatible with the
City's web page of promoting tourism, economic welfare, and industry in
plaintiffs also argue that "[t]he Putnam Pit was not linked because the
city employee/decision maker deemed the publication controversial."
Plaintiffs' memorandum (Docket Entry No. 36) at 12.
Supreme Court has held that
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.
473 U.S. at 811, 105 S.Ct. at 3453, 87 L.Ed.2d at 585;see also, Perry, 460 U.S.
at 53, 103 S.Ct. at 959, 74 L.Ed.2d at 809 ("[W]hen government property is
not dedicated to open communication the government may -- without further
justification -- restrict use to those who participate in the forum's official
business.") Accordingly, the Court finds that the plaintiffs' argument is
Court also notes that the City is justified in its actions because there are
alternative channels for the plaintiffs to spread their message. In Cornelius,
the Supreme Court noted that
First Amendment does not demand unrestricted access to a nonpublic forum merely
because use of that forum may be the most efficient means of delivering the
speaker's message. Rarely will a nonpublic forum provide the only means of
contact with a particular audience. Here, as in Perry Education Assn., the
speakers have access to alternative channels, including direct mail and
in-person solicitation outside the workplace, to solicit contributions from
473 U S. at 809, 105 S.Ct. at 3452, 87 L.Ed.2d at 584 (citations omitted). In
the instant case, Putnam Pit, Inc., consists of not only the web page but also a
newspaper, which appears to contain the same information as the web page. In
addition, Mr. Davidian admits that it is not difficult to locate the web site on
the Internet and that Internet users who may not have access to the newspaper
version may easily access the plaintiffs' web site by simply entering the search
term "Cookeville, Tennessee" after accessing the Internet. Accordingly,
the Court finds that the defendants' denial of a link from the City's web page
does not result in the plaintiffs having no medium or access points through
which to spread their message. Based on the foregoing analysis and
considerations, the Court finds that the defendants' motion for summary judgment
shall be granted on the plaintiffs' First Amendment claim of a right to have a
link from the City's web page.
motion for summary judgment, the defendants argue first that "[a] plaintiff
cannot invoke notions of substantive due process(11)
where an explicit constitutional amendment or textual provision governs the same
governmental action at issue." Defendants' memorandum (Docket Entry No. 31)
at 14. The defendants base their statement on Graham v. Conner, 490 U.S. 386,
109 S.Ct.1865, 104 L.Ed.2d 443 (1989) The Supreme Court in Graham held:
make explicit what was implicit in Garner's analysis, and hold that all claims
that law enforcement officers have used excessive force -- deadly or not
-- in the course of an arrest, investigatory stop, or other "seizure"
of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness"
standard, rather than under a "substantive due process" approach.
Because the Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized notion of "substantive
due process," must be the guide for analyzing these claims.
490 U.S. at 395, 109 S.Ct. at 1871, 104 L.Ed.2d at 454-55. A fair reading of
Graham reveals that the Supreme Court's holding was limited to claims involving
excessive force and the Fourth Amendment. Accordingly, the Court rejects the
defendants also move for summary judgment on the plaintiffs' substantive due
process claim on the grounds that the City's actions are rationally related to a
legitimate state interest.(12)
plaintiffs argue that the defendants are violating the plaintiffs' due process
rights by acting arbitrarily and capriciously with regard to the plaintiffs'
requests for public records.(13)
right not to be subject to 'arbitrary or capricious' action by a state either by
legislative or administrative action is commonly referred to as a 'substantive
due process right.'"Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216-17
(6th Cir.1992). The Sixth Circuit has held that:
a substantive due process attack is made on state administrative action, the
scope of review by the federal courts is extremely narrow. To prevail, a
plaintiff must show that the state administrative agency has been guilty of
"arbitrary and capricious action" in the strict sense, meaning "that
there is no rational basis for the [administrative] decision."
961 F.2d at 1221 (quoting Stevens v. Hunt, 646 F.2d 1168,1170 (6th Cir. 1981).(14)Under a rationality standard, the plaintiffs "bear the
burden to show that Defendants' decision was not rationally related to a
legitimate state interest." Valot v. Southeast Local Sch. Dist Bd. of Educ.,
107 F.3d 1220, 1228 (6th Cir. 1997).
plaintiffs state that "[a]s to the arbitrary and capricious nature of the
Defendants' alleged acts, consider what rational basis the Defendant Shipley had
for his requiring a deposit calculated down to the very penny before Plaintiffs
could see the Internet files." Plaintiffs' memorandum (Docket Entry No. 36)
at 15. The defendants argue that "[p]rotecting the public fisc, including
the labor expense associated with record requests, is a legitimate government
interest." Defendants' memorandum (Docket entry No. 31) at 16
of the public fisc is certainly a legitimate government interest. See Valot, 107
F2d at 1228 (holding that the protection of the public fisc is "not only
legitimate, but also laudable"). The court must also determine whether the
defendants' decision to require Mr. Davidian to pay a deposit was rationally
related to protection of the city's fiscal resources.
Fowler, Mr. Shipley's administrative assistant, stated in her affidavit that she
breakdown of Mr. Davidian's record requests and employee time spent processing
same which I could document. From May of 1995 through August of 1997, by a
conservative estimate, Mr. Davidian's record requests consumed seventy-five to
eighty hours of employee time at a conservatively estimated cost of about
$2,500.00 to the City of Cookeville. No other individual or entity has made
record and information requests remotely comparable to the volume of records and
the information requested by Mr. Davidian.
(Docket Entry No. 32) tab 4, ¶¶ 4-5. Moreover, Mr. Shipley based his cost
estimate and arrived at the deposit figure based on Mr. Corder's rough estimate
that it would take 30 to 40 hours to analyze approximately 35 computers, "finding
the information, copying the information to a floppy disk, and sorting it, and
putting it in a manner in which we could efficiently give it to Mr.
Davidian." Authentication of deposition testimony (filed July 7, 1998;
Docket Entry No. 29) attachment 9. (15)
Based on this information, the Court finds that the defendants had a rational
basis for their decision.
the Court finds that the defendants had both a legitimate government interest
and a rational basis for their decision. Because "the application of this
deferential standard of review is a matter of law for the court" (Pearson,
961 F.2d at1222) and not a question of fact for the jury, the Court shall grant
the defendants' motion for summary judgment on the plaintiffs' substantive due
process claim on the basis of arbitrary and capricious governmental action.
defendants argue in their motion for summary judgment that the plaintiffs cannot
establish a claim under equal protection based on the same reasons that the
plaintiffs' due process claim fails to survive the motion for summary judgment,
that is, because of the rational basis standard.
general rule in equal protection analysis is that state action is presumed to be
valid and will be sustained if the classification drawn by the state is
rationally related to a legitimate state interest. That rule gives way, however,
where a state classifies by race, alienage, or national origin, or where a state
impinges on personal rights protected by the Constitution; such action is
subjected to strict scrutiny and will be sustained only if suitably tailored to
serve a compelling state interest.
107 F.3d at 1229. It is clear that the Defendants have not classified the
plaintiffs on suspect or quasi-suspect grounds. In addition, the Court has
already found that the First Amendment does not guarantee the plaintiffs a
constitutional right of access to information not available to the public
generally. Accordingly, the defendants have not impinged on a fundamental right
protected by the Constitution, and the defendants' decision must be reviewed on
the basis of rationality.
Court finds that for the same reason that the defendants 'actions survive
rationality review under the plaintiffs' due process claim, the defendants'
actions pass muster on the plaintiffs' equal protection claim. The plaintiffs
have failed to show that the defendants' actions were not rationally related to
a legitimate state interest. Thus, Plaintiffs' equal protection claim must fail.
Accordingly, the Court shall grant the defendants' request for summary judgment
on the plaintiffs' claim of equal protection.
Court dismisses with prejudice the plaintiffs' federal claims against the
defendants, it declines to exercise supplemental jurisdiction over the
plaintiffs' pending state claim involving the Tennessee Public Records Act.(16)See
28 U.S.C. § 1367(c) (3); see also Cameron v. Seitz, 38 F.3d 264, 276 (6th Cir.
1994) ("With the dismissal of the [federal claim, original jurisdiction
over the state . . . claim is lacking, and the district court has discretion as
to whether to continue to exercise supplemental jurisdiction over it.").
Thus, the Court shall dismiss without prejudice the plaintiffs' state claim.
Court concludes that the defendants' motion for summary judgment on the
plaintiffs' First Amendment claim shall be granted. The Court likewise shall
grant the defendants' motion for summary judgment on the plaintiffs' substantive
due process and equal protection claims. Accordingly, as the plaintiffs' federal
claims shall be dismissed with prejudice, the plaintiffs' state claim under the
Tennessee Public Records Act shall be dismissed without prejudice. An
appropriate order shall be entered.
States District Judge
The docket sheet mistakenly reflects that the plaintiff's name is Geoffrey
The plaintiffs complained that some of the information provided by the City
"would be useful to Plaintiffs and some of which would not." Second
amended complaint (Docket Entry No. 41) ¶ 6.
In their memorandum, however, the plaintiffs state that on November 3, 1997, Mr.
Davidian was allowed to view Internet files, but the inspection revealed that no
information was available. Mr. Davidian alleges that he asked for another
inspection later that day, but was refused by the defendants.
A link allows an Internet user to move from one web site to another.
The Supreme Court further explained that a court must determine "whether
the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of jaw."
Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2512, 91 L.Ed.2d at 214.
The Supreme Court has noted an exception to this general rule in cases involving
the First Amendment right to attend criminal proceedings. See Press-Enterprise
Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 9-10
(1986); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct.
2814, 2829, 65 L.Ed.2d 973, 991-92 (1980)
The court notes that even at the time of Mr. Davidian's request, entities still
had to request to be linked from the city's web page. Links from the city's web
page could not be made by an entity on its own without any input from the City.
The plaintiffs complain that Mr. Davidian made his request on October 15, 1997,
which was denied, while other entities were allowed to remain linked from the
City's web page until November 3,1997. Such a complaint does not rise to the
level of a constitutional violation where it is does not appear that the delay
was intentional, but was merely the result of a lack of time and resources to
promptly effectuate the removal of the entities.
Mr. Shipley explained the City's policy in his deposition as follows: Let me
tell you why, in my opinion, the City has a web page. It is to give information
on the Internet about the city. It is not a public forum for people to express
their opinions. It is not a public bulletin board for people to advertise their
businesses. I didn't know what a link was. I just - when we set out to establish
a web page, I thought it was a good idea. It will put us out there on the
Internet so people might see Cookeville. We might get a business out of it. We
will promote the lakes around the area, just our general community- I didn't
think about a local link, but I do not think it is a public forum for anything.
I think it is a bulletin board about the City of Cookeville. "Here we
are." Exhibits (Docket Entry No. 32) tab 3, at 57.
Mr. Shipley testified in his deposition that the virtual community page includes
"information about the City of Cookeville, lodging, restaurants, theaters,
all those things." Exhibits (Docket Entry No. 32) tab 3, at 53.
The defendants address the plaintiffs' due process claim as one of substantive
due process. The plaintiffs did not specify in their second amended complaint
which type of due process claim they were, and in their response to the
defendants' motion for summary judgment, the plaintiffs discuss substantive due
process but do not mention procedural due process. Accordingly, the plaintiffs'
due process claim has been considered as a substantive due process claim only.
Although the plaintiffs state in their memorandum that "[w]hile one could
argue that a fundamental right, i.e. freedom of speech and the press, would
require a stricter scrutiny. Defendants cannot justify their actions as being
anything other than an irrational attempt to obstruct and hinder plaintiffs
because of animosity developed due to the criticism published in their newspaper."
Plaintiffs' memorandum (Docket Entry No. 36) at 13.With the exception of the
introductory phrase mentioning strict scrutiny, the plaintiffs' substantive due
process argument focuses on a discussion of the rational basis test in the
context of alleged arbitrary and capricious actions taken by the defendants.
Furthermore, the plaintiffs' second amended complaint makes no mention of the
First Amendment in its allegations concerning its due process claim. Accordingly,
the Court finds that the plaintiffs' due process claim involves a claim of
arbitrary and capricious action by the defendants and thus the applicable test
is the rational basis test. The Court notes, however, that even if the
plaintiffs' substantive due process claim were somehow construed to include an
allegation of a violation of the First Amendment, the Court has already found
that the First Amendment does not guarantee the plaintiffs a constitutional
right of access to information not available to the public generally. Thus, the
defendants have not impinged on a fundamental right protected by the
Constitution and strict scrutiny does not apply.
The Court notes that in the plaintiffs' second amended complaint in which they
allege a violation of due process, there is no mention of the plaintiffs' claim
regarding their right to a link from the City's web page.
Although Pearson involved zoning ordinances and state administrative action the
Court finds this language instructive in the instant case.
The plaintiffs complain that Mr. Corder was providing them with information that
they did not request and therefore purposefully inflated the time it would take
to fulfill the plaintiffs' request. Mr. Corder testified in his deposition that
he arrived at the estimate "off the top of my head when Mr. Shipley made
the request, and that is the first number I came up with. That is the number
that I gave to him." Authentication of deposition testimony (Docket Entry
No. 29) attachment at 13. Mr. Corder further testified that he did not tell Mr.
Shipley that the cookie files which Mr. Davidian requested were actually deleted
daily because Mr. Corder "assumed that what Mr. Davidian really wanted was
history files and browser cache files because everybody that knows anything
about it knows that cookie files don't give you an accurate representation of
where a computer has been on the Internet." Id. at 30. There is no
indication that Mr. Corder or Mr. Shipley acted in bad faith in estimating the
time and cost to the City to fulfill Mr. Davidian's request. In fact, it is
clear that Mr. Corder based his time estimate on his background in computers and
his experience with the City's computers as computer operations manager.
The plaintiffs also "seek injunctive relief that they will be allowed
unobstructed access without delay in obtaining public records maintained by the
City of Cookeville, Tennessee, and that the Defendants be enjoined from any
further acts that constitute retaliation for their publication of criticism.
Second amended complaint (Docket Entry No. 41) ¶ 32. Insofar as the request for
injunctive relief arises from the plaintiffs' federal claims, this issue is now
moot. Furthermore, any request for injunctive relief arising out of an alleged
violation of the Tennessee Public Records Act will not be considered by this
Court as the state claim is being dismissed without prejudice.