Outline
Introduction:
- why is this case important to examine? Communication is an important issue for
local governments, engaging with citizens to get feedback and to inform the
community are vital to effective government. As governments get better at
communicating effectively then opposition groups will begin to file grievences like
the one in the city of Epping.
- The situation, explain the facts, boil down the issues in the case
o Mr. Sutliffe and his organization the “Epping Resdents for Principled
Government” filed letters with the Epping School District and the town of
Epping because he wanted an “opportunity to express its opposing opinion in
any future materials from the [town/school dist]” pp.5
o “Plaintiffs claimed that defendants violated their First and Fourteenth
Amendment rights when defendant Town and school officials advocated for
approval of budgets and spending on school and Town purposes through
school and Town newsletters, mailings, and other forms of communication
including the Town website, while denying plaintiffs access to these same
communication channels to express their opposing views.” (pp. 4)
The State Court ruling
- What did the court rule? What was the precedent used, what was the reasoning?
o First challenged in the state courts
o The New Hampshire Supreme Court denied the plaintiff’s request, said that
the statements “were made by elected public officials speaking on behalf of
their respective public entities and in furtherance of a public purpose”. Did
not violate state constitution or the 1st and 14th amendments. (pp. 6)
- Explain
Federal court appeal
- district court did what?
- Plaintiffs expanded issues and added more parties. That Town violated free
association rights under the first amendment (pp. 8). And that not linking to their
website but to another, opposing group’s site was in violation of free speech (pp. 8)
o Concluded that the new plaintiffs lacked standing, no actual or threatened
injury. Other claims, except for the website claim, “were either brought or
could have been brought in the state court suit; the claims were thus barred”
(pp. 9).
o Rejected free association claim “found there was no evidence that the Town’s
disclosure request would have resulted in harassment of current members, a
decline in new members, or other chilling of associational rights’” (United
States v. Comley, 890 F.2d. 539)
o Rejected free speech claim and rejected that the town turned its website into
a designated public forum.
- On appeal to The first circuit there were three issues: the lack of standing for new
plaintiffs; dismissing the plaintiffs’ claims under the doctrine of res judicata; and the
free speech claim pertaining to the town website (pp. 9).
o Affirm the district court ruling. Standing has three elements: “that the
plaintiff suffered injury in fact”, “that there is a causal connection between
the injury and the conduct complained of”, and “that it is likely that the injury
will be redressed by the requested relief” (Lujan v. Defenders of Wildlife, 504
U.S. 555, (1992)).
 Injury in fact is an invasion of a legally protected interest and actual or
imminent not hypothetical (Whitmore v. Arkansas, 495 U.S. 149
(1990)).
 The new plaintiffs had no association with the organization and they
made no attempt to access the communication channels
independently (pp. 10), so they have no injury and hence no standing.
o “Under federal law, a federal court must give to a state-court judgment the
same preclusive effect as would be given that judgment under the law of the
state in which the judgment was entered” (Torromeo v. Town of Fremont,
438 F.3d 113 (2006)). This means the court looks to New Hampshire law to
see if the earlier state court suit bars their claims in the federal suit (pp. 10)
 resjudicata “precludes the litigation in a later case of matters actually
decided, and matters that could have been litigated, in an earlier
action” when these elements are met: “parties are the same or in
privity with one another, the same cause of action is before the court,
and a final judgment was rendered in the first action.” (Meier v. Town
of Littleton, 154 N.H. 340 (2006)). Clear that the claims with the
exception of the website claim are the same factual transaction as
what was brought before the state court. (pp. 11)
- They ruled on the use of the website, what did they decide? What was the reasoning
and precedents used?
o Government speech: “S” (pp. 12)
 “the free speech clause restricts government regulation of private
speech it does not regulate government speech. A government has the
right to speak for itself and in so doing is entitled to say what it
wishes. Even applies when the government uses other parties to
express the message (Pleasant Grove City v. Summum, 129 S.Ct. 1125
(2009)).
 The town engaged in government speech by establishing the website
and selecting which hyperlinks to place on its website, by choosing
only certain hyperlinks to place on that website it communicated an
important message about itself (pp. 13).
o Why isn’t it a public forum? “the Town has created a website with the
intended purpose to convey information about itself to its citizens and
others, and it has added a limited number of hyperlinks to external sites,
approved by the Board of Selectmen, in order to further this purpose. The
public forum doctrine could risk flooding the Town website with private
links, thus making it impossible for the Town to effectively convey its own
message and defeating the very purpose of the website and the hyperlinks
chosen by the Town.” (pp. 16).
- Ruling of district court affirmed.
Federal Court Dissent
- why did he dissent?
-
What was his reasoning? Why is it relevant to know?
o Does not think its government speech and believes website is a public forum.
o The town did not have a formal, written policy in place as to which
hyperlinks it would place on its website until after Sutliffe made his request.
(pp. 14)
Lessons to be learned from case
- Have a policy for what will be posted to organization’s website, social media pages,
newsletters, and other communication devices/tools
- The concept of government speech
- The concept of what a public forum is
Conclusion
- summarize the case, the ruling, the lessons to be learned
- disposition in the case? Affirmed ruling of the district court
Works Cited:
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992))
Meier v. Town of Littleton, 154 N.H. 340 (2006)
Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009)
Sutliffe v. Epping, 584 F.3d 314 (2009)
Torromeo v. Town of Fremont, 438 F.3d 113 (2006)
United States v. Comley, 890 F.2d. 539 (1989)
Whitmore v. Arkansas, 495 U.S. 149 (1990)