States beware when posting Web ads

By GCN

| May 9, 2001

States considering Web advertising should evaluate a range of policy risks and choices, says Kansas chief information officer Don Heiman.

GovAds, a subsidiary of eGovNet of Columbus, Ohio, contends that state and local governments have the right to pick and choose their advertisers. It has explained its position in a paper by Jonathon A. Allison, the company's general counsel and director of business and professional services.According to Allison, federal courts have interpreted the Constitution's First Amendment, which guarantees freedom of speech, the press and worship, in several cases that bear on Web advertising.The key notion related to governments' ability to limit, or censor, speech revolves around the concept of 'forum analysis' created by the Supreme Court. It divides government-owned properties into three categories: traditional public forums, designated public forums and nonpublic forums.Traditional public forums include places such as public streets and parks that have been devoted to assembly or debate. Designated public forums are created when a government makes its property available for use by certain speakers or for certain purposes. Other government property can become nonpublic forums.The 6th U.S. Circuit Court of Appeals ruled last year in that a city's Web site was a nonpublic forum and Cookeville could exclude Web links from it.The court advised governments considering Web advertising to establish a clear statement of purpose, adopt clear and objective policies governing Web access, audit each policies' application, and limit access to commercial advertising.Governments can't be assured that no one will ever sue them over Web site advertising issues, but they can take steps to limit problems, Allison concluded.

States considering Web advertising should evaluate a range of policy risks and choices, says Kansas chief information officer Don Heiman.
But according to one Web advertising vendor, the legal foundation for successful government online advertising is already partly in place.

Heiman based his comments on an intensive study of the issue with fellow senior officials and Kansas business executives. The state's Information Technology Executive Council has reviewed online advertising issues since last year, but so far Kansas has delayed a decision on accepting such ads.

'I think when there is a direct link to state government and state government activities, I can see where Web advertising would have some validity and make some sense,' Heiman said. He cited the example of advertising a tax preparation services on a finance and revenue site.

Heiman said Kansas officials had 'a rich dialogue' on the question of whether accepting ads equates to an endorsement of a product and what kind of disclaimers would be needed. 'I think there could be situations where there could be a conflict of interest,' he said.

One CIO's pointers on online advertising

' Open a broad dialogue with senior officials, cabinet members and business people.

' Understand the laws in the field.

' Understand that people who have disabilities use your site, and make sure your site is accessible to them.

' Don't intrude on someone else's system; the use of cookies should be disclosed.

' Make sure that advertisers offering online transactions can in fact deliver those services.

Putnam Pit vs. City of Cookeville

'Wilson P. Dizard III

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