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Davidian had become fascinated by the city of Cookeville when he learned that one of its citizens, Darlene Eldridge, had been murdered. The crime had never been solved. He traveled to Cookeville to explore the story of the murder in what he referred to as a "journalistic enterprise." A few days after arriving in town, he was stopped for speeding. While being prosecuted for the speeding ticket, Davidian asked that city officials allow him access to city records in an attempt to investigate the murder. Davidian's requests were denied. In May 1996, Davidian began to publish and edit a small tabloid he named The Putnam Pit that focused on alleged government corruption in Cookeville. In December 1996, Davidian quit publishing his newspaper in hard copy, and posted it to the Internet instead.

The city of Cookeville also had its own Web site. Between 1997 and 2001, the site had a "local links" page. On Oct. 15, 1997, Davidian sent Steve Corder, who was in charge of developing and maintaining the city's Web site, an e-mail requesting that the city post a link to The Putnam Pit. Corder never responded to Davidian's request, but forwarded his e-mail to other city officials. Those officials also did not respond to Davidian's request.

A few days later, Davidian wrote another e-mail to City Manager Jim Shipley requesting a link from the city's Web page to The Putnam Pit. Although the city had not previously implemented a policy regarding links from its Web site, Shipley promulgated a standard limiting links to not-for-profit corporations. At the time, The Putnam Pit was a for-profit Tennessee corporation.

Following this decision, Shipley wrote Davidian, saying, "I do not feel the City should be allowing any links to private businesses. . .. Therefore, I must decline your request to be linked."

Davidian, who does not reside in Tennessee, informed Shipley that he would then change The Putnam Pit into a not-for-profit corporation in order to meet the requirements. Shipley told Davidian that Cookeville would still not provide a link. Shortly thereafter, Shipley changed the standard for links to the city's Web page, saying that linked pages must "promote the economic welfare, industry, commerce, and tourism in the local area to be linked to the web site." This change in standard further meant that links were no longer limited to not-for-profit corporations.

Davidian responded by adding a page to The Putnam Pit entitled "Commerce and Tourism, Cookeville, Tennessee," and once more requested the city provide a link to his page. City officials again denied his request, saying that the only thing Davidian had on his page that promoted commerce and tourism was its headline. In 1997, Davidian filed suit against the Shipley in his role as Cookeville's City Manager in state court, alleging that the city violated his civil rights under both state and federal law.

Attorneys for Cookeville had asked that the suit be removed to the federal district court for the Middle District of Tennessee. By the time the case came to trial at that court, Cookeville had abandoned its "local links" page. A jury was asked to determine whether The Putnam Pit met the city's eligibility requirement by promoting Cookeville's economic welfare, commerce and tourism. The jury determined that The Putnam Pit did not, and the city's motion for summary judgment was granted on the federal claims, while the state claims were dismissed.

Davidian appealed the decision to the Court of Appeals (6th Cir.). In an opinion issued July 2000, Cole, writing for a unanimous three-judge panel, applied a two-part analysis to determine whether Cookeville's Web site fit a designated or a nonpublic forum, stating, "First, we look to whether the government has made the property generally available" and secondly, "whether the exclusion of certain expressive conduct is properly designed to limit the speech activity occurring in the forum" and that the restrictions to speech fit within the parameters of the forum's purpose.

The city may establish eligibility requirements for linking sites to its web page, Cole wrote, and Davidian has no entitlement to a link from the city's site. But despite that, the city cannot deny Davidian a link to The Putnam Pit based solely on the viewpoints he posted there. Cole ordered a new hearing at the trial level to review the city's refusal to allow Davidian to link to its Web page.

The jury had to determine whether Davidian's Putnam Pit was eligible for a link to Cookeville's Web page based on the city's requirement that only Web sites that promoted commerce, tourism, or industry of the Cookeville area could be linked, and if so, whether the denial of the link to The Putnam Pit constituted viewpoint discrimination. In 2001, the jury decided that Davidian's publication did not fulfill Cookeville's requirement, canceling out the need to consider the second question.

Davidian appealed the new ruling of the district court on two facial challenges, claiming that the standards for "local links" on a the Web site for the city of Cookeville, Tenn., should be void due to vagueness under the Due Process Clause of the Fourteenth Amendment and were also unconstitutionally overbroad under the First Amendment. The Silha Center joined an amicus brief supporting petitioner. In 2003, Cole, writing his second ruling on the case, for a different three-judge panel, stated that because these points had not been raised when the case was before the lower court, they cannot be raised now.

Cole's unpublished opinion, meaning that it cannot be cited as precedent, is binding only on the parties involved in this case.

The Putnam Pit is available online at http://www.putnampit.com.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor