Tuesday, July 11, 2006

A BOGUS Lawsuit?

This is a quote from the blog BluegrassReport.org of 10 July: “This afternoon, a federal lawsuit was filed in the Eastern District of Kentucky entitled Mark Nickolas v. Governor Ernie Fletcher, Secretary John Farris and Secretary Robbie Rudolph over the recent targeting and censorship of BluegrassReport.org. The suit alleges that the administration's actions are an infringement of rights under the 1st Amendment and Equal Protection Clause of the United States Constitution.”

This is the definition of censor: to examine in order to suppress or delete anything considered objectionable. Since neither the governor nor anyone else in the state’s employ, including Farris and Rudolph, have tinkered with anything written in Nickolas’ blog, there seems to be no way this suit could be taken seriously. Indeed, one supposes that neither Fletcher nor anyone else but Nickolas or someone designated by Nickolas (proper password, etc.) could even have access to his blog in order to suppress or delete anything in it. Certainly, no one but the owner of this blog, Muckraker, could touch it. Well…perhaps any hacker worth his salt could do that, but neither the governor nor any state employee has hacked into BluegrassReport, in order to censor it in any way at all.

So…are Nickolas and/or his lawyer(s) so inept that they can’t even properly recognize lawsuit material? Actually, a number of Web sites have been barred from use by state employees, including Nickolas’, apparently, and other sites such as those dealing with pornography and gambling. Nickolas is claiming that this constitutes censorship, since ALL Web sites have not been barred from state-employee use. This obviously has nothing to do with censorship, as claimed in the suit, so perhaps Nickolas should go after the governor on the much more widely used lawsuit-vehicle of discrimination.

This brings up the question of whether or not the governor runs the state, including designating the Web sites to be allowed, as well as the ancillary question: “Does a blogger or anyone else run the state government and make those decisions?” Since Nickolas has in no way been harmed by the action foreclosing his site, he would seem to have no case, unless he can claim monetary damages accruing to the loss of business by state employees who could once view advertising on his site, thus contributing to commissions he might earn; however, his is a non-profit site, so he could hardly make that claim, especially in light of the fact he solicits donations on his site in order to keep it in operation. One supposes he submits the proper tax documents to the state and federal governments if Nickolas is running a paying business.

It would seem best if no Web-sites except those having to do with state business be available to state employees in their workplaces. This would certainly mean better levels of productivity, since Web-surfing, for instance, can gobble up huge portions of time. However, if such is not to be the case, the decision as to which sites will be allowed belong to the administration, taking into account the fact that legislators and justices (representing equal branches of government) have their prerogatives. In any case, it seems that Nickolas has no case. It’s a lead-pipe cinch that his blog would be allowed at the expense of others if Ben Chandler, whose unsuccessful gubernatorial campaign Nickolas managed in 2003, had made it into office instead of Fletcher. As always, to the victor belong the spoils.

And so it goes.

Jim Clark

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