Ramsey v. Harman, — S.E.2d —-, 2008 WL 2415127 (N.C.App. June 17, 2008)

Defendant Harman maintained a blog on which she put up some posts accusing plaintiff Ramsey’s daughter of being a bully. Harman also posted this:

With all the bulling [sic] and harassing that goes on in our school system. Then the trouble that went on Friday at Madison Middle. The first student in that age group that came to mind was [plaintiff]’s daughter. Wasn’t this the student that harassed the Cantrell child? And we wonder why some kids hate to go to school…..

Ramsey apparently took great offense, filing suit against Harman for “stalking” under North Carolina law, and sought a “civil no-contact order” (like a restraining order) against Harman. The trial court granted the no-contact order and Harman sought review with the state appellate court. On appeal, the court reversed.

Harman argued that the lower court erred in finding that she had violated the state’s anti-stalking law (N.C. Gen. Stat. §50C-1(6)). She also argued the order violated her First Amendment rights. Because the court found there was insufficient evidence to support a violation of the statute, it did not need to rule on the constitutional issue.

The main question before the court was whether Harman’s blog posts were intended to cause, and indeed did cause, “substantial emotional distress” to Ramsey and her daughter. The court found there was no such showing. There were no threats of physical harm, and the only evidence as to the effect on the plaintiff’s daughter was that she was “embarrassed” when teachers at school were reading the blog posts. But there was evidence that the school had blocked access to the website, making the claim implausible to begin with. There were no communications directly between the defendant and the plaintiff, and the plaintiff’s daughter’s name was never mentioned. Moreover, there was evidence that the posts were made in retaliation over a disagreement between the Harman and Ramsey which had taken place on a political website, and over an alleged threatening phone call Harman had gotten from some of Ramsey’s family members.

Ed. note: This is a guest post by Greg Beck, an attorney at Public Citizen in Washington, DC. Greg works on a variety of issues at Public Citizen, mostly involving Internet free speech, anonymity, and intellectual property. He was lead counsel for Mark Nickolas in his challenge to Kentucky’s ban on blogs. [More info...]

Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a “blog” is no longer a good enough reason to ban a site on the state’s computers.

Nickolas is the owner and primary author of BluegrassReport.org, a blog focusing on Kentucky news and politics and specializing in criticism of former Governor Ernie Fletcher. In 2006, the New York Times quoted Nickolas and noted the blog in an article about Fletcher’s indictment on charges of political corruption. The next day, without warning, the state reconfigured its Webwasher filtering software to block all access to blogs on state computers.

Nickolas filed suit and, represented by Public Citizen, raised two primary arguments that the policy was unconstitutional under the First Amendment. First, he argued that the policy was adopted specifically to target his blog and therefore constituted viewpoint discrimination, the worst form of government action under the First Amendment. Aside from the suspicious timing of the policy, Nickolas relied on internal state email showing that, despite public claims to the contrary, the governor’s office had ordered the ban on blogs and had specifically requested that the URL of Nickolas’s site be added to the “blacklist.” Moreover, Nickolas obtained the declaration of the former state official charged with administering the state’s computer systems at the time the policy went into place, who was told that the decision to ban blogs came from “high up” and was designed to hide the decision to ban Nickolas’s site in “a bunch of other stuff.”

Second, Nickolas argued that, even if the ban were not aimed specifically at his site, the state nevertheless violated the First Amendment by singling out blogs for special restrictions while ignoring other sorts of websites with comparable content. State records showed that the number of hits to news and political blogs from state computers was a small fraction of the millions of hits received each day by mainstream news sites like the Lexington Herald-Leader, the New York Times, and CNN.com. The state could offer no rational explanation for its decision to focus solely on blogs while ignoring other websites reporting the same information (especially since even blogs on mainstream news sites remained accessible). Moreover, Kentucky continued to allow access to many other categories of websites that served no work-related purpose and that received more traffic than blogs, including webmail, newsgroups and message boards, sports sites, shopping sites, financial and stock-trading sites, and others.

The case was the first to challenge a state’s decision to block access to blogs on state-owned computers. The most analogous case is the Fourth Circuit’s en banc decision in Urofsky v. Gilmore, where several Virginia professors sued over a law prohibiting access on state computers to sexually explicit materials. 216 F.3d 401 (4th Cir. 2000). The professors asserted that they needed access to the materials to fulfill their research, writing, and teaching responsibilities. That assertion, however, ultimately proved fatal to the professors’ claims when the court held that, because the professors were performing these duties in their capacities as state employees rather than as private citizens speaking on issues of public concern, their First Amendment rights were not implicated. Urofsky’s reasoning suggests that if the professors had instead relied on restrictions to their personal use of state computers, the court would have evaluated the law’s constitutionality under the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering and a line of cases following it established a balancing test for determining the constitutionality of a government’s restrictions on its employees’ speech, weighing the employees’ First Amendment interest in access to the restricted materials against the employer’s interest in maintaining order in the workplace.

Unlike the professors in Urofsky, Nickolas did not challenge the state’s restrictions on what employees could read pursuant to their job-related responsibilities. Kentucky, like many other employers, had long allowed its employees to use state-owned computers for personal as well as work-related purposes as long as that use did not interfere with performance of job responsibilities. Pursuant to Kentucky’s policy, employees could and frequently did read online news sites, including blogs, from workplace computers. The state’s decision to block access to the blogs while still allowing access to other news sites imposed on its employees its own preferences about which sources of news were acceptable and which were not. Nickolas argued that, even if the state had the power to entirely ban personal use of workplace computers (a proposition that Nickolas did not dispute), it did not have the power to selectively allow access to only those news sites it approved as sources of news. It was simply not a proper role for government, Nickolas argued, to decide which websites were legitimate news sites and which were not.

In the settlement finalized yesterday, Kentucky reserved its right to regulate use of computers in the workplace, but agreed to do so in a viewpoint-neutral manner that treats blogs the same as equivalent non-blog websites. Although a decision on the legality of blog-banning policies will be left for another day, the case should at least cause public employers to think twice before cutting their employees off from a large and important piece of the online political discussion.