Briefing The First Amendment in Kentucky

first_amendment.jpgWe’ve previously covered the fight between Mark Nickolas, of the Blue Grass Report, and Kentucky Governor Ernie Fletcher, who recently plea bargained his way out of other trouble. As you may recall, the Governor blocked state employees from reading “blogs” while at work. While the State argued that the ban was intended to increase productivity, many suspected that the ban was actually targeted at Nickolas’ critical coverage of Fletcher’s troubled administration.

Recent developments in the case merit further comment. The complaint, drafted as a joint product of Kentucky counsel Fernandez Friedman Grossman & Kohn and Public Citizen, alleged, in part, that:

33. The state’s ban on blogs is inconsistently applied. In particular, several prominent websites commonly referred to as blogs remained available on state computers . . . including the popular site Drudge Report . . . and a website belonging to . . . Ann Coulter.”

39. [Although the state had claimed that the reason for the anti-blog policy was “[s]everal categories [of website], including entertainment and blogs, showed large state employee usage volume,”] the state continues to allow access to newspapers and magazine sites that are not classified as blogs, even though this category of website is the third most popular category [of site visited by Kentucky employees.]

In Nickolas’ cross-motion for a preliminary injunction, the arguments are fleshed out. The brief makes a two big attacks on Fletcher’s ban.

  • Viewpoint Discrimination: The state has a “whitelist” that overrides the default anti-blog settings. That whitelist permits, for example, SCOTUSBlog. [No other law blogs that I can see made it onto the approved list. What’s up with that?] The state also has a general policy of not blocking sites that “are purely policy-oriented”, a decision that is made by an administrator on a site-by-site basis
  • Content Discrimination: Citing City of Cincinnati v. Discovery Network (the case about newspaper racks) the brief argues that the distinction between blogs and non-blogs “is at least content based”. The distinction is to boot irrational: (1) newspapers often have blog-like characteristics; and (2) the state can not validly distinguish between news-dissemination sites and personal diaries.

I haven’t read the State’s briefs, and as I’ve mentioned numerous times, I’m no expert on First Amendment law. But it seems to me that if the case were cleaner, i.e., there were no viewpoint discrimination problems of the Couter-variety thrown in,* this type of ban would turn on whether accessing internet at work is better seen as a Pickering (employee rights / speech protective) problem or as a Cornelius (NAACP forum / not speech protective) problem. The consequences of viewing the case through a fora-lens were well expressed by Judge Edwards of the D.C. Circuit, writing for the overturned appellate majority in Cornelius below:

Nothing more need be said of this dissenting opinion. The dissent has simply attempted–by advocating an astonishingly narrow construction of the First Amendment and by refusing even to question the Government’s assertions of interest in this case–to make the First Amendment a nullity in that part of the public domain that it considers the “nonpublic forum.” The Constitution does not envision such pockets of tyranny, and we unqualifiedly repudiate the dissent’s attempt to create them. [H/T: Reader CG]

Some more general thoughts.

1. Terrible job at creating a clean litigation record by Kentucky. One might imagine a policy that said something like this: “We’ve studied the issue, and we’ve found that employees visiting blogs (a) spend more time on the internet than employees who just surf for basketball scores and obituaries in the paper; and (b) more often spend time on non-state business. Therefore, we’ll ban blogs.” This policy would be also be suspect, but I think that it would withstand a facial challenge. But the actual record, at least that part of it in the plaintiff’s brief, seems preclude this defense entirely.

2. I am troubled, as I am whenever I think about these issues, by the force of the argument to the effect that Kentucky could constitutionally cut its T1 line entirely, and that greater power entails a lesser. Playing out that argument in the First Amendment context is always where I lose the thread of the discussion and seek refuge in the more logical waters of corporate law. And (obviously) the Governor’s political intent here is common among sensitive politicians, and we might want to protect state employees (and bloggers) expressive rights in a way we didn’t want to protect the NAACP’s right to solicit for donations, an argument the brief makes to a degree.

3. This is a terrific fact pattern for a con law exam.

FN* Or the more insidious discrimination between our site and SCOTUSBlog.

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