The opinion of the court was delivered by: Cameron Mcgowan Currie United States District Judge
Opinion and Order on Cross Motions for Summary Judgment
Through this action, Plaintiff, Randall S. Page ("Page"), asserts that he was denied access to what he described as the Defendant's "informational distribution system" in violation of his rights under the First Amendment of the United States Constitution. See Dkt No. 25 (amended complaint); Dkt No. 41 at 1 (Plaintiff's memorandum in opposition to summary judgment). Page's claims arise out of his request for access to means used by Defendant, Lexington County School District One ("District"), to oppose legislation referred to as the "Put Parents In Charge Act" ("PPIC Act").
The District concedes that it denied Page's request to disseminate information, but maintains that the denial did not constitute viewpoint discrimination because the only PPIC Act-related speech disseminated by the District was governmental speech. Thus, the District maintains that no forum was created for discussion of this topic. Page, by contrast, maintains that the District created one or more fora for discussion of this topic by allowing third parties to disseminate their message using the District's resources.
This matter is now before the court on the parties' cross motions for summary judgment (Dkt Nos. 48 & 49). These motions follow this court's earlier grant of partial summary judgment in favor of the District. See Dkt No. 45 (order granting partial summary judgment).
In its earlier summary judgment order, this court analyzed the various components of the alleged informational distribution system individually. See Dkt Nos. 45 at 8-9 (describing asserted "informational distribution system") & 27-29 (explaining reasons for individualized analysis). The court granted the District's motion for summary judgment as to all but two components of the system: (1) links to third-party websites on the District's own website; and (2) newsletters prepared by third parties such as Parent Teacher Associations ("PTAs") which were distributed through the schools. Dkt No. 45 at 31-36. The court allowed further discovery as to these components of the alleged information distribution system. Dkt No. 45 at 38. The present order, therefore, addresses only the website links and PTA/O (or other third-party) newsletters.
For reasons set forth below, the court now finds that the District is entitled to summary judgment as to these two components of the alleged informational distribution system. Defendant's motion for summary judgment is, therefore, granted and Plaintiff's motion is denied.*fn1
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).
Request for Access and Denial*fn2
This action arises from the District's denial of Page's March 1, 2005 request for "equal access" to means which had been used by the District to communicate with parents, staff and faculty regarding the PPIC Act. Specifically, Page requested: 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 [as had been used by the District or third-parties through the District's means of communication]. 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.
Dkt No. 25, Ex. M (emphasis added).
The District responded by letter dated March 15, 2005, denying Page's request based, essentially, on an argument that the message it was disseminating in regard to the PPIC Act was its own and did not, therefore, create "a right of 'equal access' to our informational distribution system for you to present your views in support of the bill." The District then stated that it did "not permit the distribution of any type of outside information or materials which do[es] not directly promote educational, recreational or cultural activities that would be of interest to students or their parents." Dkt No. 25, Ex. N (emphasis added).*fn3
In a subsequent deposition, the primary individual in charge of disseminating the District's message, Mary Beth Hill, conceded that it was "fair" to say that Page's request was "denied . . . based on his viewpoint." Hill October 5, 2006 deposition ("Hill depos. II") at 141. She further explained, however, 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." Id. at 144. In other testimony Hill stated that, although she has occasionally used or passed on legislation-related information obtained from third-parties when it supported the District's position, she has never done so at the request of a third party. E.g., Hill depos. II at 127.
Specifically as to the entity known as Choose Children First ("CCF"),*fn4 Hill testified: "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." Hill June 16, 2006 deposition ("Hill depos. I") at 62; 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).*fn5
Website Links. Hill denied that she had ever been asked by anyone other than Page to distribute information though the District's website. Hill depos. I at 77. No evidence to the contrary has been presented, despite the opportunity for further discovery specific to this issue. See generally id. at 78 (explaining that any link to the Choose Children First website was not at the request of that organization but was based on Hill's decision to link information that she found useful in presenting the District's message); Dkt No. 49-5 (letter from counsel for CCF responding to Plaintiff's subpoena).
Page has now presented evidence of two links on the district's website to a third-party home page (as opposed to a static document within a website)*fn6 where content of the website addresses the PPIC Act. One such link is to the CCF website, which was addressed, in part, in the earlier order. In addition, the District links to the home page of the South Carolina School Boards Association ("SCSBA"). That entity also discusses the PPIC Act or other voucher-related legislation on its website.*fn7
Discovery completed after this court granted partial summary judgment confirms that the CCF link was created based on the unilateral decision of the District (through Hill), not based on any third-party request to be linked.*fn8 Further, in the Rule 30(b)(6) deposition of the District, Hill testified that, when she created the link in 2005, CCF "only had . . . that front page. They didn't have pages off of it. They only had a page and it was solely dedicated to vouchers." Id.*fn9 CCF was, moreover, a "single issue" organization at the time the link was created.
There is, likewise, no evidence that the SCSBA website was linked based on any third-party request. This website, which was not specifically discussed in the earlier order, does, however, differ from the CCF website in numerous respects.*fn10 First, it is a "multipage" website. While the overall focus of the various pages is on matters of general interest to educational entities, the topic of the PPIC Act or other voucher-related legislation is discussed within the website. A user would navigate from the District's website to the voucher-related pages as follows: (1) the District's home page lists various topics including "Board Policies"; (2) clicking on Board Policies takes the user to a page within the District's website which includes a link to the South Carolina School Boards Association; (3) that link is to the SCSBA home page which includes a "Legislative Alert" subheading; (4) clicking on any one of a number of the topics listed under this subheading takes the viewer to a discussion of voucher legislation. Dkt No. 48 Ex. B (screen shots) & Ex. H (declaration of M. Todd Carroll laying foundation for screen shots as accessed on May 7, 2007).*fn11
Hill testified that, while she did not review all linked documents or websites regularly, she did check links relating to current issues, such as the PPIC Act. She was also occasionally alerted by others to changes in linked websites or documents. Hill depos. I at 81. She was conducting a general review of the District's message, as presented on its webpage, between January and March of 2007 (after the legislature convened and new voucher-related legislation was proposed), when she discovered that CCF had changed its website and was no longer addressing voucher-related legislation. District depos. at 20-21 (explaining that there were then new voucher-related bills replacing the PPIC Act, but that CCF did not address them and, instead, addressed a variety of different subjects such as voter registration). Based on this message change, Hill removed the link to the CCF website during the first quarter of 2007. Id. at 28.
Disclaimer. The District's website includes a disclaimer which advises the viewer that the District is "not responsible for what may be on other people's [web]pages . . . ." Hill depos. I at 79-80. The specific wording of the relevant portion of the disclaimer is as follows: Some Lexington County School District One Web pages have links to other Web sites.
These external Web addresses contain information created, published, maintained or otherwise posted by institutions or organizations independent of Lexington One. Lexington One does not endorse, approve, certify or control these external Web addresses and does not guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of information located at such addresses.
Use of any information obtained from such addresses is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy and timeliness. Reference therein to any specific commercial product, process or service by trade name, trademark, service mark, manufacturers or otherwise does not constitute or imply endorsement, recommendation or favoring by Lexington One.
This disclaimer is located within the District website and is accessed by clicking on the "Guidelines" heading located on the District's home page. It is not specifically referenced in connection with the District's "Board Policies" page, which provides a link to the SCSBA, nor, apparently, was it found on the current issues page which previously linked to the CCF site. See Dkt No. 48 Ex. B. Nonetheless, the court assumes that ...