The Arrogance Of The Mainstream Press

The Kentucky Post published an editorial today about the censorship issue which, while critical of indicted Governor Fletcher's (R) handling of the matter, seriously misses the mark on the relevance of this issue.

Let's go through this quickly. First, we're dealing with a public employer -- not a private employer -- when it comes to state government. While as an employer, the Fletcher administration certainly has the right to manage its employees in a productive way. No one is disputing that. But the courts have made clear that a public employer has obligations beyond that of a private employer. As a sovereign, they are still bound by the constitution and the rights of its citizens.

At the heart of the current scandal is the issue of a core constitutional right -- the protection of speech, particularly political speech. By picking and choosing which websites to ban -- and doing so in a way that seems to make no sense whatsoever -- the government is arbitrarily banning certain speech but not other.

If the concern is state employees wasting time on the internet looking at sites that have nothing to do with their jobs (which is their contention), what rationale argument could they have for banning BluegrassReport.org but not the Courier-Journal -- assuming that employee needs neither to do the job? What's the distinction?

After all, while you may not agree with my political opinion, this site contains ample sifting of the news all over the state, original reporting, plenty of analysis, it's all about government and politics, and it is a full-time endeavor. Beyond that, this site has won an award as the best state/local blog in the country and I write a weekly political column for a weekly newspaper. So, what is the fundamental difference? Is it because I don't have a journalism degree? Is it because I'm critical of this administration? Is it because they don't feel my speech reaches some protected level like that of the mainstream media? That's where they've tread into problematic constitutional waters and why we now are on a collision course. 

Keep in mind that while state government has a right as an employer to manage its employees and expect productivity, it also MUST do so in a way that does not violate the constitutional rights of the public, and if there is a small group of employees violating internet usage policies, the smart policy would be to discipline those violators, not banning speech to all 34,000 employees.

Clearly, smart and legally proper public policy has not been the hallmark of this administration. But they don't get to re-invent our constitutional rights, as much as they'd like doing so. They've picked the wrong fight here. There is little more sacred to our nation that our First Amendment rights. That is what's at stake and what they are violating.

Sadly, the old curmudgeon editorial writers at papers like the Kentucky Post view blogs as entertainment but what they do as hallowed, sacred ground. In its editorial, their anger seems directed at the blogs written by mainstream reporters, not the blog world in general. Ironically, it is the Kentucky Post that is going out of business and will shut its doors in about a year, while the online world is flourishing.

Now go ahead and read their editorial.

By the way, the Ashland Daily Independent makes the same false argument in its editorial where they argue that employees don't have first amendment rights at the workplace. Hint: it's not the employees' first amendment rights that are being violated. It's mine.

UPDATE: U.S. Supreme Court, 1994:

The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as a sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency.

Waters v. Churchill, 511 U.S. 661, 675, 114 S. Ct. 1878, 1888, 128 L. Ed. 2d 686 (1994).

Comments

[EK Dem.]

First of all, the term "Mainstream Media" is beginning to be as grating to me as "Liberal Media." Number One, there are as many opinions as there are newspaper companies. Number Two, if you're visitors are increasing as rapidly as you say, at what point does this blog become part of the "Mainstream Media."

I disagree with the two opinions presented, but you can't tar them with the "Mainstream Media" brush. By that standard, the Herald-Leader and Courier-Journal are not members of that mythical elitist group.

The Post and the ADI are newspapers. Period. They both are in conservative areas, and their editorial boards take that into account when they make decisions. Don't ever think that they don't. The editorial boards are also made up of managers, who sometimes like to keep employees under their thumb. It's not at all surprising that two papers might make these decisions.

Your best bet is to focus on the political end of this and stop falling into the rightwing mode of shooting the messenger. It just makes you look petty.

Shhhhhh, Mark-jeez, even the legally illiterate lawyers supporting Fletcher are going to be able to understand that explanation!

Damn, we could have kept them baffled for months.

Your whining is getting old. The First Amendment guarantees you the right to speak or publish. It does not guarantee you the right to be heard or read.

No one is censoring BGR. All 33,000 state employees are still free to read or post here -- but ON THEIR OWN TIME, not on the state's (read: the taxpayers') time.

Your tune will change if Chandler gets elected and you get to be a Grand Poobah and all of a sudden, employees are reading and posting on blogs, especially if they are being critical of the administration.

[Eric James]

If you were to prevail over the Fletcher Administration, it seems to me that you would have to prove that you were individually and personally targeted, either as a person, a publication vehicle, or both. On the surface, Fletcher’s Administration appears to have targeted its web blocking restrictions indiscriminately and somewhat broadly (not to mention ineptly). It also appears you would have to define a nexus between the act of restriction and something specific to you or your blog. That also may prove difficult.

This is how your case differs from the former First Amendment violation incurred when the Fletcher administration blocked the web site of the Concerned Members of the Kentucky Historical Society, before your brouhaha started. The blocking related specifically to the Open Records Request of the Concerned Members and the subsequent failure to comply by the Commerce Cabinet and the Kentucky Historical Society, the Cabinet's agency. There was an identifiable nexus, which was specific to the web site of the Concerned Members, where information about the conflict was posted and disseminated to members of the Historical Society. No other web sites were being blocked by the Administration at the time.

In the case of the Concerned Members, the statistics from their web site also showed evidence of access by government computers prior to the blocking and the subsequent cessation following the blocking. If your stats can evidence something similar, you may have your leg up.

I dare say the success by the Fletcher Administration in quashing the complaint of the Concerned Members of the Kentucky Historical Society on a legal technicality, and not on the issue of the Open Records Act violation itself, may have emboldened the administration. With one demonstrated success in denying First Amendment privileges to the citizens of the Commonwealth under its belt, why not do the same with other entities the Administration deems objectionable? Especially when the matter ultimately arrives in court where justice is not dependent on enforcement of the law, but rather on arguments and citations of case law.

[EK Dem.]

Anon 10:25. Your argument is getting old. How many times have you posted it now?

One more time, slowly, so you can understand. Yes, employers have the right to keep their employees from wasting time. No, the government does not have the right to selectively block what its employees can read, based on content.

It can block all porn, it can block all shopping sites, it can block all news sites. It cannot choose to allow employees to read Hustler, but stop them from reading Playboy. It cannot choose to allow employees to shop at JC Penney, but stop them from shopping at Sears. It cannot choose to allow employees to read The Drudge Report, but stop them from reading The Bluegrass Report.

At least those papers picked up the story. The ultra-right-wing Paxton family-owned Paducah Sun refuses to even acknowledge that it's even a story.

State Govt. Bans Web Sites From Computers

Now that is a story no matter whose side you're on!

Unfortunately, in all the smoke about First Amendment rights, everyone seems to be missing the REAL problem -- lack of proper supervision by state government managers. If managers are truly doing their jobs, and if state employees are to be believed about being understaffed, the employees won't have spare time during work hours to peruse web sites, this one or others. And, if employees are found to be committing "time fraud" by not working during their assigned and paid work hours, then let the state prosecute them - concretely - for that. The Amendment issue is too gray, and the courts have consistently upheld that the computers and subsequent use is under the ownership/ authority of the employer. Jeeez.

Does the government ban on Bluegrassreports.org extend to state universities, like the University of Kentucky. I suppose the Governor would claim the right to filter "necessary" and "unnecessary" websites for university employees (state government employees), but have they tried yet? I suspect that such a regulation on internet sites would be especially upsetting if Fletcher attempts to extend the ban to state employees in the university setting.

[Daniel]

If it expands to state universities, that would start a major court case. Because students live on campus, you cannot filter certain websites out because that would violate free speech.

I will say that I am at NKU and cannot visit the SEC Sports website or UK Athletics. Pretty much anything run by Host Communications. That was as of this past May. If it's still the same come August, I'll be a very upset UK fan.

[KY1911]

what is news and what is entertainment? The line has been blurring for 20 years and sadly, was pushed over the top following 9/11. I used to watch CNN religiously, but after 9/11 Paula Zahn and her fucking America Morning (mourning?) ruined cable news forever - lets get personal on the issues, lets visit the human-side of the story. Who gives a shit - give me the news - nothing else. And you even see it in the interviewing styles of anchors who are trying to create news during interviews, rather than simply reporting facts and letting you, the viewer, decide. On the one hand, is it an insult to smart viewers that the networks now do your thinking for you or is it a reaction to the stupid citizen who no longer thinks for himself and it happy with football, NASCAR, and a six-pack?

Blogs are simply the latest personfication of this phenomenon - some news, some entertainment. My compliments to Mark for doing what he's doing - charting new waters and keeping up a public discourse on topics that seem to get lost behind the latest sports scores in the "real" media.

[Rockcastle]

The Bluegrassreport..

Partisan,
Whining,
and Hypocritical.

Mark tried to peddle his spin on the show formerly known as the Dave Baker show this morning. It didn't fly there and it doesn't fly here.

It would behoove him and all state employees to go read DIS-060, the state's AUP for e-mail and the Internet.

1:08 - mark makes a very good point that the issue is the state banning his site and not others -- NOT that state employees have a constitutional right to read it. I realize that it's hard for you guys to keep your talking points straight, but it's a big difference.

[KY1911]

Here's a thought...want state employees to work better and do a good job? Stop hounding their asses over inane bullshit like Internet sites, pay them a little more and give them a pat on the back...oh wait, the MBA touting "Clean up the Mess in Frankfort Crowd" is too busy breaking the law to be effective managers and administrators...too busy getting themsleves and their friends into positions of power and authority with GROSSLY inflated salaries so that they can change the laws to favor their industry and then go back to that industry in a few years and make even more money...call Kentucky state government what it is...a sham and a joke perpetrated on the citizens at an increasingly expensive rate for a declining return on that investment.

[RobH]

FWIW I've been able to access BGR from WKU the whole time. I agree that Universities are differrent because of the students and their rights.

Mark -- stick to journalism. Your knowledge of Constitutional law is laughable, at best.

[same old sh**]

Rockcastle:

Partisan,
Whining,
and Hypocritical.

02:52, you use the term journalism very loosely. I think I have a better term: tripealogist. Hell, I think I just invented a new word.

I've reconsidered and come to the conclusion that tripeist would be a better word to use when refering to Mark's "work."

C
C
C
P
BLUEGRASSREPORT.ORG
Formerly known as TASS

10:25 has it right....Markie boy has the right to speak but NOT to be heard. Read it at home.

KY1911, you rock! You've got it exactly right! There are perfectly decent non-merits in Frankfort. I know them and respect them. But they are outnumbered by the cynics, the thieves, and the industry shills.

We desperately need a party switch, and not from Lundergan's branch of the party, either. Just four years of this may be too much.

[LexLawyer]

"I agree that Universities are differrent because of the students and their rights."

Nice try. Students are not a protected class in any area of constitutional law, much less in first amendment law.

The issue is government making content distinctions about political speech. This is not about journalism, and it's not about who the audience is. It's about political speech restrictions.

As for "students and their rights," I guess NKU and WKU students have never heard of the "hate speech" codes that exist on many university campuses. These codes are certainly very controversial. But the fact that they exist at all shows that students do not enjoy greater first amendment rights than other Americans.

This issue is what government employees do on their own time vs. what they do on their employers' time. In that instance it stands to reason that the employer would not allow access to certain web sites that were keeping employees from doing their assigned tasks.

As for the colleges, there are really no restrictions on what a student does on his or her own time in the dorms unless it is illegal or prohibited by university policy (like having booze in the dorm room), at least for a public university. UK doesn't care if the students read BGR or not. But lots of universities shut down the ports that access file-sharing stuff like Kazaa to avoid legal liability for copyright infringement. No more leeching free MP3s for Joe or Jane Student, too bad....

[LexLawyer]

10:11, if that were true, COT would unblock the websites/blogs during lunch hour and after 6:00pm. And the Fletcher Administration would not block some sites and leave others accessible.

A total ban might be justified, though condescending.

A selective ban violates the first amendment.

Additionally, many people on government wages (excluding semi-qualified Fletcher loyalists making huge salaries) can't afford to have computers and Internet access at home. It does not cost taxpayers any money for these employees to use the Internet before and after work and during breaks.

How great that students don't have content barred from dorm computer networks. I guess we won't have to worry about Fletcher mandating content-blocking software in public housing. Then again, maybe the real concern was state troopers spending too much time on BGR while protecting public housing (the Governor's Mansion).