Paging Eugene Volokh: The First Amendment in Kentucky
posted by Dave Hoffman
Have you been following recent events out of Kentucky? As first reported by the BlueGrassReport, and later explored by (among others) TPMuckraker, Gov. Ernie Fletcher directed his IT folks to block state employees from reading blogs late in the day yesterday. Although early reports connected the ban to the BlueGrassReport’s focus on Fletcher’s legal troubles, the governor’s staff has made its anti-blog crusade more ecumenical over the course of the day. (Suggesting, perhaps, a email from the lawyers last night, reading “Ban more sites.”) But other political and media sites remain unfiltered.
As Mark Routledge, Deputy Commissioner of the state’s Commonwealth Office of Technology explained to TPM’s Paul Kiel, newspapers and other MSM sites have “some value, some relevance to somebody’s job,” while blogs are extensions of “interest groups.”
First, it has got to be said that this is simply a bizarre and self-defeating action by the governor’s office. Censorship at the state level is seldom particularly useful, especially in an era where information is cheap and readily available. And this is just the kind of story to get national – followed and augmented by local – press.
But can the state government constitutionally ban blogs? Rep. Ben Chandler (D, KY) thinks that the ban violates the “equal protection clause of the Constitution,” and “flies in the face of a fundamental right of free speech.”
I don’t get the EP argument, at all. The action here is in the 1A claim, but is made more difficult because the law governing the state’s rights to act as an employer is complex and mutable. Unfortunately, I’ve previously vowed not to blog about the First Amendment “unless Eugene Volokh is on vacation on a desert island without WiFi access.” Those are strong words, and EV appears to be in country. So I guess I’ve got to ask our commentators. Under what argument or sets of arguments can the government of Kentucky decide to install internet filtering software that bans state employees from surfing, while at work, blog sites but not “ordinary” media outlets. Assume that it is possible to distinguish between a blog and a newspaper site (perhaps the filter recognizes snark and parasitism). Assume also that the policy does indeed ban all blogs, not simply ones reporting on the governor’s indictment.