Judge holds hearing on blogger's lawsuit

FRANKFORT -- A federal judge today held a hearing on a lawsuit that claims Gov. Ernie Fletcher’s administration unconstitutionally blocked state workers’ access to a political blog because it was critical of the governor.

U.S. District Judge Karen Caldwell did not immediately rule on a motion by Mark Nickolas to issue a preliminary injunction against the administration or the administration’s motion to dismiss the lawsuit.

With Fletcher’s Chief of Staff Stan Cave present in the court room, Caldwell asked attorneys for Nickolas and the administration their thoughts on a possible jury trial.

Greg Beck, an attorney for Nickolas with the Washington, D.C.-based Public Citizen, said it’s an important case and that “decision-makers” probably should be questioned about its policy of blocking political blogs while permitting the use of traditional news sites.

Jennifer Moore, a Louisville attorney who is working with Public Citizen on the lawsuit, said Nickolas’ attorney possibly would want to question the governor.

If there is a jury trial, the court should make sure information sought is focused “and not a wild goose chase,” said David Fleenor, an attorney for the governor.

Nickolas filed the lawsuit last July after the Fletcher administration blocked state workers’ access to his site, www.bluegrassreport.org, on June 21, a day after Nickolas was quoted in a New York Times article criticizing the Republican governor who had been indicted on three criminal misdemeanor charges of violating state personnel laws. The charges were later dismissed after Fletcher and state prosecutors reached a settlement.

Nickolas managed the 2003 gubernatorial campaign of Democrat Ben Chandler, who lost to Fletcher but later was elected to Congress.

The Fletcher administration contends that it was not targeting Nickolas’ blog, but had formulated a policy to add to a list of sites banned on state employees' computers, including gambling and pornographic sites.

Nickolas maintains the state’s blocking of his site constitutes content-based discrimination.

Listed as defendants in the lawsuit are Fletcher, Finance Secretary John Farris and Executive Cabinet Secretary Robbie Rudolph.

--Jack Brammer

Comments

[Scooby]

How long was BGR actually blocked from state computers, and is it today? I thought it was clumsy and wrong to block BGR if all political blogs were not blocked, but a lot of this free speech martyrdom is high falutin crap. What do the free speechers think about the frequent deletions done by BGR against those posters who don't toe someone's idea of the proper line, whether those posters do so on their employer's time or not?

scooby,
You raise brilliant questions. Nickolas does delete and ban posters that don't agree with him. Why would he do that?

Especially since Plaintiff, Mark Nickolas, who is in personal litigation with the Governor of Kentucky. On August 21, 2006 Mark Nickolas' lawyers filed "Response To Motion To Dismiss."

Here are some direct quotes from Nickolas' lawyers found in NICKOLAS RESPONSE TO MOTION TO DISMISS filed August 21, 2006....

1. NICKOLAS RESPONSE TO MOTION TO DISMISS - page 6
"A MAJOR PURPOSE of Plaintiff's website is to INFLUENCE STATE POLICY, and a critical part of his audience is THEREFORE state government employees."

2. NICKOLAS RESPONSE TO MOTION TO DISMISS - page 8.
"It is an obvious inference from these allegations that at least some individual state employees -- the MOST IMPORTANT TARGET audience for Plaintiff's website -- no longer read the site because they LACK THE TIME or ability to read it from home."

3. NICKOLAS RESPONSE TO MOTION TO DISMISS - page 9
"The state has cut off the most CONVENIENT METHOD for Plaintiff to reach his audience of state employees, who make up a CORE PART OF HIS READERSHIP"

NICKOLAS RESPONSE TO MOTION TO DISMISS - page 9
"Because the state has chosen to burden the ability of Plaintiff's KEY AUDIENCE to read his site."
Source: Public Citizen website PDF Internet Link:
http://www.citizen.org/documents/nickolasresponsetomotion.pdf
End of Excerpts from Nickolas' "Response To Motion To Dismiss."

You would think that since Miller & Nickolas have lost their "target audience" of 30,000 state government employees ...

and they can no longer ...

get their "major purpose" to "influence state policy" to their "most important target audience" they would welcome ALL voter's ideas...

You know ideas on "state policy" from everyone in the PUBLIC and NOT just their "MOST IMPORTANT TARGET AUDIENCE??"

even if that idea was different from their ...

own idea of "state policy."

After all ....

according to the Articles of Incorporation the Corporation that funds the political blog is to be ....

"grassroots / PUBLIC education of Issues Concerning Kentucky's Future."
http://apps.sos.ky.gov/business/obdb/(vwo3rw20qaedub3l31hzd4rh)/OBDBDisplayImage.aspx?id=318630

Rumor in the capital city coffee shop is that both:

theruraldemocrat.blogspot.com
and
conservachick.com

in a bipartisan effort are going to uncover the truth in government leaders will have some enlightening information on Nickolas & Miller very soon.

maybe ... any minute?

Keep checking both blogs over the weekend.

Give it up, William Hayes.

First Amendment violations cannot occur by the actions of a private individual, they require governmental action. Fletcher banning some speakers but not all speakers is not okay. He's governor of Kentucky, remember? Those were governmental actions.

BluegrassReport is not required to allow all speech, any more than the Lexington Herald Leader is required to. Neither BGR nor the Herald-leader involve governmental action, which is a requirement for having a violation of someone's constitutional rights.

8:02 - BGR is set up as a non-profit tax exempt corporation. If BGR denies access to the only facility it has to members of the community because they do not have the same ideas then they are in violation of federal (c)4 tax laws.

Secondly, haven't you heard the facts:

1. June 8, 2005: In a memo from Commonwealth Office of Technology (COT) Deputy Commissioner - Mark Rutledge to Chris Johnson (COT) and Paul Sommerfield (COT), Rutledge asks, "Is the web master capable of blocking blogs? We have COMPLAINTS from agencies about staff spending too much time "blogging" they want us to use restrict access on all blog sites."
Source: Court Documents file by Mark Nickolas' lawyers on August 22, 2006 in "Exhibits To Motion For Cross- Motion For Preliminary Injunction." Page 25; Exhibit 14.
PDF Internet Link:
http://www.bluegrassreport.org/All_Exhibits_to_Motion_for_PI1.pdf

2. June 20, 2006: In the Comment Section from Mark Nickolas' thread, "Governor's Troubles threaten GOP in Kentucky (New York Times -- Front Page),"
"the productivity of the entire Cabinet (at least those of us with computers) has been substantially diminished by this blog today. In advance, we apologize to the taxpayer and promise to work double-time next week to make up for the lost hours."
Posted by: Revenue Girl | Tuesday, June 20, 2006 at 02:40 PM
Source: Bluegrassreport.org Internet Link:
http://www.bluegrassreport.org/bluegrass_politics/2006/06/governors_troub.html

Also from Nickolas' own lawyers as posted above... Nickolas is fighting to get back on 30,000 state government computers because the "most important target audience" "lacks the TIME" to blog after work....

Nickolas' lawyer wrote that in court documents.. Link above at 4:36 post.

Also: to tie a nice ribbon around the language that Jennifer Moore - NICKOLAS' LAWYER wrote in Court Documents:
Emphasis should be highlighted on language used by Nickolas' lawyer.
i. "target audience" refers to 30,000 state government employees who are paid with taxpayer money.
ii. "key audience" refers to 30,000 state government employees who are paid with taxpayer money.
iii. "most important target audience" refers to 30,000 state government employees.
iv. "core part of readership" refers to 30,000 state employees being the "core readership."
v. "major purpose" is solely to "influence state policy" speaks for itself.
vi. "critical part of audience ... therefore is state government employees."
vii. "lacks the time to read it [blog] from home" refers to 30,000 state employees having higher priorities after work than reading the political blog Treasurer Miller envisioned and created.
viii. "cut off most convenient method" to reach "target audience" implies that since 30,000 state government employees "lack the time" to read the political blog after work they should be given the time to read the blog during working hours on the taxpayers' time.

So YOU think taxpayers should pay Miller & Nickolas "most important TARGET audience" to blog at work on the taxpayer' dime because those same 30,000 state government employees "LACK THE TIME" to blog after hours because THEY have BETTER THINGS TO DO???

Hmmm... look at Revenue Girl & Memo of June 8 closely.

The ban was caused by Rev. Girl's admission and the memo which BOTH predate the ban.

BTW: Nickolas' blog is NOT neutral based. Nickolas blog is FAR from NEUTRAL.

I agree with Greg Beck. Beck said, "that “decision-makers” probably should be questioned."

He is SO right. Decision makers should be questions. Like I think Jonathan Miller should be questioned and asked:

1. When did you and Nickolas pick 30,000 state government workers as your "MOST IMPORTANT TARGET AUDIENCE?"

2. Was it important in keeping the political blog whose "MAJOR PURPOSE" was to "INFLUENCE STATE POLICY" on state computers because you (miller) and Nickolas knew that your "KEY AUDIENCE" had better things to do.

3. Mr. Miller do you agree that since "the state has cut off the most CONVENIENT METHOD for Plaintiff to reach his audience of state employees, who make up a CORE PART OF HIS READERSHIP" it was important to file this lawsuit even though there had been complaints as far back as June 8, 2006 from Mark Rutledge (COT) asking, ", "Is the web master capable of blocking blogs? We have COMPLAINTS from agencies about staff spending too much time "blogging" they want us to use restrict access on all blog sites."
Source: Court Documents file by Mark Nickolas' lawyers on August 22, 2006 in "Exhibits To Motion For Cross- Motion For Preliminary Injunction." Page 25; Exhibit 14.
PDF Internet Link:
http://www.bluegrassreport.org/All_Exhibits_to_Motion_for_PI1.pdf

4. Mr. Miller, Is the Kentucky State Treasurer or any elected leader classified as a "private citizen" able to donate money to a Corporation that they envisioned and created with the "major purpose" to "influence state policy" whose "target audience" are 30,000 state government employees who should be able to access the blog during working hours because the "target audience" "lacks the time" to access the blog after working hours?

5. Mr. Miller, Is the Kentucky State Treasurer or any elected leader who is in a position of trust, held to a higher standard than a private citizen whose allowable donations and promises are dictated by the Kentucky Constitution Section 150 & 151.

6. Mr. Miller, Are elected leaders prohibited from donating money to a Corporation that they envisioned and created with the "major purpose" to "influence state policy" whose "target audience" are 30,000 state government employees.

7. Is it abuse of power if the Treasurer criticizes the governor in the media and fights for legislation that would mandate the "target audience" to remain intact to be able to access the blog the Treasure created during working hours whose "major purpose" to "influence state policy" because the "target audience" "lacks the time" to access the blog after working hours?

8. If the Treasurer donated money to the Corporation he created and whose major purpose is to influence state policy with the target audience being 30,000 state government employees, from either one of his PAC's, personal monies, proceeds from book sales, and/or through any type of taxpayer funded account which the Treasurer is allowed to donate to charity or other entity at his discretion, would that be in violation of Kentucky Constitution Sections 150 & 151?

9. What does it mean when Nickolas' lawyers say that the political blog, designed and created by the Kentucky State Treasurer, whose has their "target audience" be 30,000 state government employees?

10. What does it mean when that same political blog has a "major purpose" to "influence state policy" to 30,000 state government employees?

11. Why is it so important to the Treasurer that the "target audience" read the blog during working hours as opposed to allowing them to FIND TIME after work?

12. Does Miller personally fund a political blog and/or foundation whose purposes are to influence public policy and state workers?

13. Is Miller's outspoken support for the blog and the subsequent legal ruckus underhanded, if not entirely unethical or abuse of power?

14. Mr. Miller did you hire the foundation/blog as a lobbying firm, why not simply say so?

15. Mr. Miller was this lawsuit POLITICALLY MOTIVATED so that you and Nickolas could keep your "MOST IMPORTANT TARGET AUDIENCE" in tact so you could make certain they were reading your view and "INFLUENCE STATE POLICY?"

16. Mr. Miller have you donated any money to the Foundation and/or BGR and/or BGR Legal Fund from either/or your PACS, monies from book sales, personal income or any taxpayer funds that you are allowed to donated to charity or any other entity at your discretion?

These are questions that have been asked on many blogs on the Internet. Perhaps reporters of the main stream media do not read blogs???

YES, I say let Miller testify and while there at it have Nickolas open up the books on ALL the bank accounts at ALL those banks.

Oh, and see if Nickolas KNOWINGLY and WILLFULLY provided false information in the "Description of Exemption Purpose" on the 2005 Form 990. Yup, Mr. Beck right about decision makers being asked questions.

No governmental action, no matter how much whining is done. Sorry.

Stay on point, and pay attention instead of blabbing about how much you hate a single person.

10:47 Are you say "no governmental action" because the elected official involved has abused his office and is therefore in a position of power which enables corruption??

Are you saying that there will be "no governmental action" because Jonathan Miller may have engaged in corrupt business practices for personal political gain or to influence legislation for personal political gain? Kathy Stein too???

Is it because government officials are possibly involved here no governmental action will occur???

You have seen the post Nickolas wrote that said, "One thing that few people know -- and something I rarely talk about -- is that the Jonathan Miller is the single person most responsible for the genesis of BluegrassReport.org.
During the Spring of 2005, Jonathan called me with the idea that I launch a political site, believing that the ground was fertile for a serious effort by someone who understood the political environment, the players and the media, and that if I could dedicate a large block of time to building the site and developing an audience, it would have a significant impact on the state's political world. After a few more phone calls and a couple of lunches, it came together."
Source: Internet Bluegrassreport.org Link:
http://www.bluegrassreport.org/bluegrass_politics/2006/12/why_im_for_jona.html#comments

anyway, bottom line is no one in the world that knows english would read his blog and come away thinking that it is "neutral."

I mean the guy Miller hired to run the blog calls State & Federal candidate names that are not allowed to be printed in neutral media. Not to mention Miller's political blog has a reputation as casting untrue aspersions on politicians, judges and public leaders with the intent to have the "MOST IMPORTANT TARGET AUDIENCE" vote for someone else....

{yawn)

No governmental action, no matter how much whining is done. Sorry. If you don't understand what government is, it's kind of pointless and extremely unrelated for you to just ramble on about how much you hate someone. Boring, doesn't establish anything about the original point of whether or not BGR is capable of having governmental action to violate the First Amendment. (It isn't...period).

Stay on point, and pay attention instead of blabbing about how much you hate a single person.

I can't help but think the "yawn" is either Nickolas or one of his two followers??? Huh?

Nickolas has NOT lost his First Amendment rights. Nickolas is still allowed his freedom of speech and freedom of distribution?

Nickolas still writes daily. (freedom of speech)

Anyone can blog on to the politcal blog as long as they are not at work. (freedom of distribution)

The political blog is on the world wide web and as long as someone is not supposed to be working they can access it - (freedom of distribution) - but the PUBLIC should know that if they disagree with Nickolas/Miller their post will be deleted and they will be banned even though that is an unambiguous, absolute violation of the IRS tax code for tax exempt corporations ... but Nickolas doesn't seem to know too many laws so I guess it's no surprise he violate those tax laws.

I thought I would share this post I found on the world wide web from someone discussing Nickolas lawsuit.... Remember Nickolas is a democrat and the dem platform is that taxation is to help the needy thus Nickolas is supposed to support and be happy to pay into the tax coffer ...

Quote, "I suppose that I ought to be filing a lawsuit so state employees can read MY blog while they're supposed to be working. The nerve of the state to request that their employees be productive! The nerve of the taxpayers to expect state workers to be WORKING during working hours! *gasp*

Actually, Nickolas's suit makes about as much sense as Playboy filing suit against the governor demanding that all male employees have access to their site during working hours because they may not have time to "read" it during their free time at home. Sheesh.

I wish Nickolas would stop wasting taxpayers' money demanding that the governor defend a perfectly reasonable and legitimate action. It's simple nonsense."

Oh well, maybe you really don't understand the logic. The governor has not striped Nickolas of freedom of speech or freedom of distribution.

The quotes from Nickolas' lawyers above speak for themselves.
The evidence of complaints of state workers blogging prior to the ban speaks for themselves.

The total exposure of Jonathan Miller and Mark Nickolas won't be found in mainstream media ...

In a bipartisan effort to uncover the ENTIRE affair between the Miller & Nickolas where they ask the question, "Corruption??? Abuse of Power??? or Pure Happenstance???

blog 1: (democratic blog) The Rural Democrat
theruraldemocrat.blogspot.com

and blog 2: (republican blog) conservachick.com
http://swfwithattitude.blogspot.com/2007/01/columbo-reports-details-questions-on.html

[John Stamper]

This blog is not a place to engage in name calling. I've had to delete a few posts today on this thread because someone couldn't be adult enough to comment without resorting to personal attacks. If that continues, we'll be forced to monitor all comments, which means many comments might be delayed for hours, if not days, before they appear on the site. That type of delay sort of defeats the purpose of allowing comments in the first place and would be a major hindrance to those who like to use the blog to debate policy and analyze political maneuvers.

For the time being, folks who want to comment will have to supply an email address.

[u12bravo]

I am totally opposed to this administration and the re-election of Dirty Ernie yet I find it interesting that Nickolas sued the governor for the same behavior he engages in regarding censorship of blogs. When he is not publishing his liar's corner I suspect he is in a jockey suit at the end of Prince Ben's driveway. So much for holding to a higher standard. Dirty Ernie, Lambert and Nickolas, the polictical three stooges

The state has a right to restrict the use of its computer network. There are a lot of sites blocked that have nothing to do with either porn or gambling (the two most frequently mentioned reasons for having filters) or blogs. Sports, music, Web radio, even a lot of personal Web pages, etc., are blocked.

For sites that are allowed, there is a policy that state employees are required to adhere to regarding Internet usage. Reading blogs, and definitely posting to them, would be a violation of that policy.

Mark Nickolas is not being censored, and there is no First Amendment violation. He still has the ability to run a blog and citizens still have the ability to read it, although on their own time and with their own Internet access. The First Amendment grants the right to speak, not the right to be heard.

Even if he wins this lawsuit, the state can issue a tougher Internet usage policy and reprimand or punish those who violate it.

[The Miller-Nickolas Connection]

I am really dismayed that the H-L has not done an expose on what ties Miller has with the bluegressreport blog. It sounds very incestuous.

Since Mark Nickolas has been indicted on 3 counts of tax evasion on the state level, maybe NOW the H-L will investigate the serious questions that have come up around Miller's connection with creating BGR?

I wonder how many indictments Nickolas will face at the FEDERAL level???