2/13/08

The shutdown of an Oregon non-profit organization's website by the City of Ashland, Oregon has sparked a legal feud that is bringing an important Internet law issue before the Ninth Circuit Court of Appeals in San Francisco: Can a City that operates a municipal Internet service be sued over a City policy that allowed a City technician to turn off a web-server's access to the Internet without notifying the website operator? Cyberlawyer Charles Carreon has just filed a brief on the issue for the non-profit organization, arguing that the City's action raises the spectre of censorship, is facially unconstitutional, and was applied to shut off his client's website as punishment for posting a risque political cartoon of conservative columnist Kathleen Parker.

"All American Buddha wanted was to publish its website on the City of Ashland's municipal fibernet, without interference from a censor inside some City department." That's how Charles Carreon, the lawyer for the American Buddha Online Library, explained his client's lawsuit against the City of Ashland, that has now reached the Ninth Circuit Court of Appeals. Appealing from an Oregon district court decision that ruled against its complaint, American Buddha filed its Opening Brief on February 11th, asking the appellate court to rule "de novo" on the issue, and strike down an Ashland city policy that allowed a City technician total authority to turn off websites that had been the subject of a purported copyright infringment complaint. "It was particularly offensive," says Carreon, "that the City policy didn't require that anyone even attempt to contact the website operator before turning off their website. In my client's case, website publication was halted for an hour before I was able to get the City to restart it. There was a serious chilling effect on speech from that shutoff -- a real fear that the censors would be watching, and shutting the website down again in the future. That's why we had to file suit."

"Internet censorship is just the latest outbreak of a disease that government always suffers from -- wanting to control what people can say," says Carreon, "We are shining a light on a problem that no one in Ashland knew about -- the existence of a censor inside of the City who could, and did, turn off websites for totally improper reasons. In the case of American Buddha, it was a complaint from conservative columnist Kathleen Parker, who was the subject of a risque cartoon that was posted on the American Buddha website http://www.american-buddha.com, In other cases, we don't know what the reasons were, but the websites were turned off."

Ashland, Oregon became one of the first cities to build its own connection to the Internet, going live with its Ashland Fiber Net (AFN) in 1999. Chronically over budget and behind schedule on construction, AFN was a magnet for critics. VIrtually since the project began City government has been smarting from citizen criticism that it was a service that regular people didn't need, and that regular taxpayers didn't want to sponsor for a clique of high-tech upstarts. AFN supporters have repeatedly argued that the benefits of the service for the people, and the growth of high-tech business in the city, vastly outweigh the costs of operation. For years City administrators complained that under-cutting by local cable provider Charter Communications prevented its cable TV business from taking off. Recently the TV operation was spun off to a private operator.

The local Internet service, however, is firmly in City hands, and that, says Carreon, is central to his case. "State action is the key," said Carreon. "In most cases, the provider of Internet access is through some private company -- one of the big telecommunications companies. They don't have First Amendment obligations. The CIty of Ashland is different. It is the government, and it chose to go into the business of allowing people to publish websites on their network. Once government opens up a public forum like that, they have to obey the First Amendment -- they can't appoint censors."

According to the Director of American Buddha, an Internet librarian who goes by the name "Ambu Fortuna," the Oregon non-profit filed the lawsuit "to protect our mission to share free speech with members around the world." The website has been in operation since year 2000, and has well over fifty-thousand members, according to Fortuna, who described the library's collection and her user base: "Our website is one of the only places where you can read rare political books without being asked for money. Some of those books, like 'The Trail of the Octopus,' by Lester Coleman, a former DIA agent, that tells the uncensored history of the Lockerbie / PanAm airliner bombing, and can't be found anywhere for less than several hundred dollars a copy. Students, teachers, and researchers use our website for serious study. So having the City of Ashland blocking publication based on a complaint from a right-wing writer was blatant political censorship. For the sake of our readers, and the cause of free speech, I had to sue." An online archive of legal documents is available at http://www.american-buddha.com/ambuvs.city.toc.htm

Asked why the case was important enough to justify an appeal to the Ninth Circuit, a project that can easily cost a client a healthy five-figure sum, Carreon explained: "The issue is one of first-impression, because whether a municipal Internet system subjects a city to First Amendment restrictions is, strictly speaking, a new one. On the other hand, it's just a replay of the old Jehovah's WItness cases, where an unpopular religion found its message blocked by restrictions on the use of loudspeakers and pamphleteering. American Buddha is a digital pamphleteer, entitled to the same protections as the works of the Founding Fathers, who wrote 'The Federalist Papers' pseudonymously, and circulated them secretly to avoid Royal prosecution. The Revolutionary War was in large part, a war against censorship. And it's not over."