The opinion of the court was delivered by: Cameron Mcgowan Currie United States District Judge
Opinion and Order Granting, in Part, Motion for Summary Judgment
This matter is before the court on Defendant's motion for summary judgment (Dkt No. 40). For reasons set forth below, this motion is granted in part and denied in part.
Through this action, Plaintiff, Randall S. Page ("Page"), seeks access to what he describes as Defendant's "informational distribution system." See Dkt No. 25 (amended complaint); Dkt No. 41 at 1 (Plaintiff's memorandum in opposition to summary judgment).*fn1 Page maintains that this collective "system" constitutes a forum subject to First Amendment protection including, most critically, protection against viewpoint discrimination.
Page further asserts that he was denied access to the system because of his viewpoint, which differs from that of Defendant, Lexington County School District One ("District"), on the "Put Parents In Charge Act" ("PPIC Act"). More specifically, Page asserts that:
Upon learning of the District's use of public resources to champion a position regarding pending education-related legislation that is contrary to his own, Plaintiff asked the District to present his competing views through the same channels of distribution. The District refused Plaintiff's request based solely on his viewpoint, after which Plaintiff filed this lawsuit to enforce his First Amendment rights.
The District, by contrast, argues that it has not created any forum relevant to discussion of the PPIC Act or other legislation. While the District concedes that it has used some of its resources to communicate its opposition to the PPIC Act, it maintains that all such speech was its own "government speech," allowing it to choose its own message. Thus, the District asserts it has not created any forum for discussion of the PPIC Act or other legislation.
Page challenges the District's position, arguing first that the doctrine of government speech is not available where the governmental entity has engaged in campaign activities. He further asserts that the speech at issue does not satisfy the relevant tests for "government speech," primarily because the District has acted as a conduit for favored third parties, allowing them to distribute their messages through the District's various channels of communication, while denying Page the same opportunity.
Page's original complaint focused on the District's decision to deny him access to its various modes of communication but contained few allegations relating to the creation of any "forum" subject to First Amendment protections. See Dkt No. 1 (complaint filed January 24, 2006). On the other hand, the complaint contained numerous allegations which tended to support the District's position, as stated in its motion to dismiss, that the speech at issue was "government speech," not subject to the viewpoint neutrality requirements which apply once a forum is established. Dkt No. 6 (motion to dismiss).
The court denied the District's motion to dismiss, but noted that various allegations of the complaint supported the District's position that the speech at issue may have been government speech not subject to forum analysis. Dkt No. 22 at 2 (Order dated May 10, 2006). As allowed by that order, Page filed an amended complaint on May 30, 2006. The amended complaint acknowledged that the District did not create a public forum simply by engaging in "political" speech on "an educational issue" of public concern. Page asserted, nonetheless, that the District allowed its communication channels to be utilized by others to convey inconsistent and varying positions or opinions on the PPIC Act and thus converted its modes of communication into public forums. Dkt No. 25.
The amended complaint asserted three causes of action: one for damages, one for injunctive and one for declaratory relief. All three claims are, however, founded on alleged violations of Page's First Amendment rights of access to the District's modes of public communication and are pursued under 42 U.S.C. § 1983. Thus, Page's claims rest solely on alleged First Amendment violations.
In its order denying the District's motion to dismiss, the court allowed limited discovery to address the threshold issue of whether a forum was created. See Dkt No. 22 at 2. Specifically, the court allowed Page to depose the District's Director of School/Community Relations, Mary Beth Hill,*fn2 concerning the District's dissemination of information and materials regarding the "speech at issue." The order permitted further discovery only if Hill's deposition "suggest[ed] additional persons were involved in the decisions as to what information was disseminated by the school using the alleged 'information distribution system,' or if it suggest[ed] that persons outside the school district were allowed to submit information for distribution through the school district's information distribution channels." Dkt No. 22 at 2.
The court subsequently allowed limited discovery from several entities whose websites or web-based documents were linked in some manner to the District's website. Dkt No. 37. The purpose of this discovery was to allow Page to test the veracity of Hill's testimony that the District did not distribute any documents (except through its flyer program) or provide links on its website at the request of any third party.
In his memorandum in opposition to summary judgment, Page implies that further discovery should be allowed. Dkt No. 41 at 5 (memorandum at 2, referring to "minimal discovery" allowed to date). He has not, however, identified any specific further discovery which he believes is necessary to adequately address the issues now before the court. See generally Fed. R. Civ. P.56(f).
Summary judgment is appropriate "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 that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).
The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). When the nonmoving party has the ultimate burden of proof on an issue, the moving party must identify the parts of the record that demonstrate the nonmoving party lacks sufficient evidence. The nonmoving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
In a letter dated March 1, 2005, Page wrote to Dr. Karen Woodward, Superintendent of the District, stating that he "was most disturbed to see that Lexington School District One maintains on [its] website information critical of Governor Sanford's Put Parents in Charge education reform initiative." Dkt 25, Ex. M. Page also indicated a belief that various schools "have distributed materials to [their] students and sent e-mails to faculty/staff which were critical" of the PPIC Act. After questioning the propriety of this use of the District's resources "to affect legislation," and its presentation "of a one-sided view of the debate," Page stated:
I am hereby requesting that Lexington School District One permit equal access to present the other side of Put Parents in Charge to the district's parents and faculty/staff by making available the same distribution method[s] and resources. I have materials, ready for distribution, to present the opposing viewpoint. I simply need equal access to the distribution system which has already been provided to those opposing the Governor's initiative.
If there are other instances where the district has knowingly permitted materials and/or e-mail to be used critically against the Put Parents in Charge legislation, I am asking that all such instances be disclosed and that the same distribution methods and resources be made available to present the opposing viewpoint.
Dr. Woodward responded by letter dated March 15, 2005. After acknowledging that Page challenged the District's use of its "information distribution system to present a 'one-sided view' of the debate" regarding the PPIC Act, and that he had requested "'equal access' to the distribution system to present" an opposing viewpoint, Dr. Woodward stated:
It is the official position of this district, . . . to oppose the Put Parents in Charge bill because we believe such legislation is not in the best interest of public education, specifically, or the State in general.
We have reviewed our situation and have discussed your request with the district's legal counsel. Our activities in opposition to Put Parents in Charge are not improper, nor has our dissemination of information or distribution of materials created a right of "equal access" to our informational distribution system for you to present your views in support of the bill. The District does not permit the distribution of any type of outside information or materials which do not directly promote educational, recreational or cultural activities that would be of interest to students or their parents. Therefore, your request for equal access must be denied.
Dkt No. 25, Ex. N (emphasis added).*fn3
As noted above, the court allowed limited discovery to explore the threshold question whether the District had created a forum, as to which Page might claim some right of equal access, or whether the speech at issue was merely government speech, giving rise to no right of access. For present purposes, therefore, the court assumes that if a forum for discussion of the relevant issues*fn4 was created, Page was denied access based on his viewpoint. See, e.g., Hill October 5, 2006 deposition ("Hill depos. II") at 141 (acknowledging Page's viewpoint was important to decision to deny access). The critical facts, therefore, relate to whether such a forum was created.
Through Hill's deposition, the District explained that it "decide[s] though a very lengthy process what [its] position is on certain issues and . . . stick[s] to those positions and . . . educate[s] people on [the District's] position, what's best for the school district." Hill depos. II at 143. See also id. at 144 (explaining that Page was denied access "[b]ecause we have our own message that we want to do and that's the message we're going to do"). Once the District makes the decision as to the message to be conveyed, Hill is responsible for conveying that message to both internal and external audiences. Hill depos. I at 10-11 (summarizing responsibilities as covering "internal, external and training portions of communications"); id. at 20-40 (describing duties in more detail). For example, Hill is responsible for postings on the District's website. Hill depos. I at 71. She is also responsible for educating and communicating with specific groups including school principals, her own staff, and the District's Government Relations Committee ("GRC").*fn5
In order to be able to educate these groups and as part of her duties of communicating the District's message, Hill must keep abreast of current issues that may impact the District. Hill depos. II at 126. In that process, she receives information from various groups relating to ongoing legislation and similar current issues, including information relating to the PPIC Act. Although she has occasionally used or passed on legislation-related information obtained from third-parties when it supported the District's position, Hill testified that she has never done so at the request of a third party. E.g., Hill depos. II. at 127. See also Hill depos. I at 62 (explaining in regard to Choose Children First: "They are not allowed to distribute to everybody. They may send me something that I think [is] valuable. And if it's an issue that I agree with . . . I may take it and redo it or send it to a select group, usually the Government Relations Committee. But we don't send any of that home with kids."). No contrary evidence has been presented.*fn6 See also Hill depos. II at 143 (stating that she has never even been asked to distribute third-party opinion information by anyone other than Page).
The only information the District distributes at the request of a third-party is though its flyer program which is used to distribute information to students relating to extra-curricular activities. Hill depos. I at 56-57 (explaining that outside groups are not allowed "to communicate directly to our staff or faculty or students," and that the district does not "distribute for those groups" except as allowed under the flyer program). To the extent Hill has passed on information relating to the PPIC Act which was received from third parties, she did so based on her belief that the information supported the District position, not based on a third-party request. In addition, information produced by an individual school's parent-teacher organization or association may be approved for distribution by the school's principal. Hill depos II at 60-61.
Informational Distribution System
Plaintiff alleges that the District's "informational distribution system" consists of some or all of the following components: "the District's email network, webpage, newsletters, facsimile machines, and other modes of communicating with the public." Dkt No. 41 at 3. What evidence has been presented as to these components, any collective system,*fn7 and their use for the relevant purpose (communicating information relating to the PPIC Act) is discussed below.
Hill or others on her staff utilized the District's email system to communicate with the GRC and various District employees (or board members) regarding the PPIC Act.*fn8 For example, she sent an email on November 17, 2004 which refers to a request for additional information regarding the Act made by one or more GRC members during a recent meeting. Dkt 25, Ex. C. The email includes a short description of the Act, states the District's opposition to its passage, and provides arguments in support of the District's position. The latter include references to other entities which agree with the District (i.e., the South Carolina School Boards Association and the Superintendents' Division of the South Carolina Association of School Administrators). Excerpts from documents produced by others also appear to have been attached or included. Id.
Hill and other individuals on her staff sent numerous additional emails to members of the GRC (with copies to various District employees) relating to the PPIC Act. These emails frequently urged the members of the GRCto take action opposing passage of the Act, such as contacting their legislator. See, e.g., Dkt No. 25, Ex. G (March 18, 2005 email from Hill's staff member, Elizabeth Roof, to GRC members encouraging them to oppose the PPIC Act)*fn9 ; Hill depos. II, Ex. 3 (April 11, 2005 email from Hill reminding the GRC members that the District "oppose[s] tuition tax credits and voucher's in any way, shape or form" and encouraging them to contact members of "the Ways and Means Committee"); Hill depos. II at 117 & Ex. 5 (Hill April 15, 2005 email to GRC including text of a letter written by Tommy McPherson and suggesting the recipients refer to this letter in composing their own messages). A number of these emails also included information prepared or provided by third parties. Hill depos. II at 117 & Ex. 5 (including language from McPherson letter); Hill depos. II, Ex. 4 (Hill email, advising that debate on the bill had been delayed for a few days, thanking the recipients for their "calls and e-mails," and including excerpts from an email sent to Hill by Betty Gregory)*fn10 ; Hill depos. II, Ex. 6 (Hill April 20, 2005 email to GRC passing on information received from a GRC member); Dkt No. 25, Ex F (Hill November 24, 2005 email addressing new version of the PPIC Act which she describes as "making a bad bill worse," and attaching "a copy of a news release providing the SCSBA's reaction to the changes").*fn11
In her deposition, Hill explained that when third-party materials were included in or attached to her emails, it was for the purpose of promoting the District's (or school board's) position. Hill depos. II at 155. She did not include such materials for the purpose of promoting the speech of others. Id. Neither did she include any such materials at the request of a third party. E.g., Hill depos. II at 116.
Specifically in regard to her November 24, 2005 email, which addressed the new version of the PPIC Act, Hill explained that she obtained this information "in a handout or some other kind of information they had, [and] didn't want to rekey it so [she] lifted it" and attributed it to the original source. Hill depos. II at 124. She further explained that she follows this course (copying materials into her emails) when she finds something that "[i]s equal to our message. If it is what we want to say and they've already written it and they have done a better job than I could do." Id.
Further questioning regarding the same subject matter was as follows:
Q: So is it your testimony that when you receive information from a group outside the district, that those groups in your experience never asked you to distribute it to anyone?
A: Right. They don't ask me to distribute it. I get an e-mail. Is it useful to me or not? If it's not useful, I trash it. If it's useful, sometimes I save it because I know it's an issue I might want to go back and learn again. And sometimes I use it right away.
Q: And when you . . . go through that decision-making process, do you ever consult with ...