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From TexasISD.com Preventive Law
Sure, school districts have web pages, with links to board policy service, student codes of conduct, and handbooks, but what about advertising? What are the merits and liabilities of placing community organizations/business web links on a school district website? Selling links on the school district web site is a way to generate additional revenue for the school. To protect itself from potential First Amendment challenges, the district must carefully establish the web site as a closed forum for the purposes of speech, and insure that those denied an ad on the page are not denied on the basis of their point of view. However, the district may deny ads to those whose products or services are inconsistent with the mission of the school in much the same way that schools control other publications that bear the imprimatur of the school. The Power of Web Advertising Having commercial links on school district web pages is a rising phenomenon. Southlake Carroll ISD has been very successful selling such links. They sell ads on the school website as well as license their trademarked logos to appear on commercial websites (“Proud supporter of the Carroll Dragons!”)[1] Their policy GKB (LOCAL) is a good model for this sort of enterprise. While not all school districts may make as much money as affluent Southlake Carroll, ad money is revenue that does not have to be derived from taxes. Nevertheless, there are collateral issues that a school district should consider before going forward. Advertising is a form of speech protected by the First Amendment.[2] If a school district declines an ad because it feels the ad is in poor taste or the business is not appropriate as a school partner, the declined party may claim a First Amendment violation. However, government need not permit all forms of speech on property that it owns and controls, including its website.[3] Some areas such as streets and parks are considered open or traditional public forums. In those forums the state may only enact content-neutral “time, place, and manner” restrictions or content-based rules that are “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.”[4] A school district web site is probably not a traditional open forum. A non-public forum consists of “[p]ublic property which is not by tradition or designation a forum for public communication.”[5] The government may be more restrictive in its regulation of speech in a non-public forum than in a traditional public one. The government may “reserve the [nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.”[6] The daily operation of schools is usually a non-public, or closed, forum for most speech, and the school may control the message presented as long as the regulation is reasonable. Between public and non-public forums are limited and designated public forums. Courts are not always consistent in how they label and define these intermediate forums. Generally, in a designated public forum the government makes public property (that would not otherwise qualify as a traditional public forum) generally accessible to all speakers. In such a forum, regulations on speech are “subject to the same limitations as that governing a traditional public forum” –namely, strict scrutiny.[7] Unless the school district has created a feature of its website to allow anyone at all to post on its web page, the district’s web page is probably not a designated public forum. A limited public forum, by contrast, is “created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” In a limited public forum, the government creates a channel for a specific or limited type of expression where one did not previously exist. In such a forum, “the State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics,” subject only to the limitation that its actions must be viewpoint neutral and reasonable.[8] If a section of the school’s web page allows citizens to post messages to the football team, the district probably created a limited public forum of the web page, and messages both positive and negative would need to be accepted. The Impact of the First Amendment When planning to offer ad space in any school district publication, the district must consider First Amendment implications that will occur if the district rejects ads. For example, the district will most likely not wish to accept advertising links to the local beer store, a birth control clinic, or a business of questionable taste. In addition, political candidates or those espousing a particular political viewpoint may seek to have links to their campaign websites from the school district page.[9] A governmental entity may limit access to “non-public” or “designated public” forums based on category of speaker or subject matter so long as the limitation is reasonable.[10] Certainly there would need to be rules about what is appropriate, and possibly specifically establish a non-public or limited public forum. In the primary case to address the relationship between links and forum designation in a government website, Putnam Pit found that the city could establish a policy to limit who might be linked, so long as the limits were reasonable and did not allow for viewpoint discrimination. In Page, a school district denied a citizen equal web page access to counter information about pending legislation posted by the school on its own web page. The court said that “[I]n a nonpublic forum the government may employ a selective access policy in which individual non-ministerial judgments govern forum participation ... subject to ... two limitations: the policy must be reasonable and viewpoint neutral.”[11] The Page court found it particularly significant that the district maintained complete control of its website, retaining the right and ability to exclude any link at any time, did not incorporate any material from linked websites into its own, and “disclaimed” contents of linked websites.[12] Following that reasoning, the district could establish a policy that limited ads to only local businesses, or only businesses that provide services to students, or any businesses that do not deal in alcohol or reproductive services or discuss controversial issues of any type. But once the district sets the limit, all viewpoints within the approved categories must be accepted. Apparent District Endorsement Schools gain an extra consideration for selection of potential advertisers, however, when the advertiser appears under the name of the school as it would on a web page. When the publication (the web page) bears the “imprimatur” of the school, the district has much greater control of the content and any potential affiliations.[13] Schools should take care to avoid political advertisements on their web pages. The Texas Election Code strictly limits schools on “political advertising,” defined as “communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure” when that advertisement appears on an Internet website (among other locations).[14] The Election Code does provide an exception for factual descriptions of “the purposes of a measure if the communication does not advocate passage or defeat.”[15] The same prohibition applies to internal websites available only to employees.[16] Violation of any of these statutes is a class A misdemeanor. Decisions do not end with content: Does the district require the ad it to be text only, or a does it allow links? Links click through to a site the district cannot control and may have links to other inappropriate sites. The district can provide some warning, if not protection, from such contact by enabling an intervening message such as that discussed in Page, e.g. “Warning you are now leaving the __ISD website. __ISD has no control over the content. Continue / Cancel.” In addition, the district must address what is allowed in the ad itself. Name of business only? Images? Proselytizing messages? Many districts have an advertisement policy in place for the school paper, yearbook, or football program. If those policies have survived challenge, they may work for this as well. Your District Web Site is not only a link for the public to gain information; it may also be a link for the District to gain revenue. What’s New Copyright Fundamentals - Webinar Series April 2009 For more information and to register online, click here. COBRA Webinar April 14, 2009 For more information and to register online, click here. FMLA Webinar April 23, 2009 For more information and to register online, click here. Construction Essentials Workshop - Webinar Series April 2009 For more information and to register online, click here. Construction Boot What to Expect from Your Architect, Contractor & Construction Manager April-May 2009 For more information and to register online, click here. The 9th Annual [1] See Southlake Carroll I.S.D., The Green Pages. [2] [3] Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 [4] Perry Educ. Assn. v. Perry Local Educators' Assn., 460 [5] [6] Id. [7] ISKCON, 505 U.S. at 678. [8] Good News Club v. Milford Central School, 533 U.S. 98, 106-07 (2001) (citations omitted). [9] See, e.g. Page v. Lexington County Sch. Dist. One, 531 F.3d 275 (4th Cir. 2008) (holding that a district did not establish an open forum when sites to which it linked added political information to their web sites). [10] Putnam Pit, Inc. v. City of Cookesville, Tenn., 221 F.3d 834, 843 (6th Cir. 2000) (holding that a city’s web site was a non-public forum, but using a definition of “designated public” forum that more closely describes the “limited public” forum defined above). [11] Page, 531 F.3d at 283 (citation omitted) (finding that the portion of the district website advocating defeat of voucher legislation was a nonpublic forum that the district could control). [12] [13] Planned Parenthood of S. Nev. v. Clark County Sch. Dist., 941 F.2d 817 (9th Cir. 1991) (en banc) (holding that a school may reject ads from a family planning organization for school yearbooks, newspapers and athletic programs when the forum was not public, a limited public forum was not established, and the district’s reason that it wanted to avoid advertisements on controversial issues was reasonable). [14] [15] [16] See, generally, id. at § 255.0031.
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