Silencing The Blogosphere: A First Amendment Caution To Legislators Considering Using Blogs To Communicate Directly With Constituents by Wes Sullenger

This article considers the First Amendment implications of employing this technological growth in the political arena. Analyzing the initial experiments with direct democracy in colonial America provides a framework to explain the effect the Internet could have on the democratic system. Direct democracy started with the town meeting style of government in New England. A brief examination of the Founders’ reaction to that system, however, shows they created a representative democracy as a buffer to direct citizen control. This article will then consider the modern calls for direct democracy, including a discussion of the nature of direct democracy and modern experiments in direct democracy. This article also analyzes the societal changes forged by the Internet, as well as the belief by some that these changes justify a contemporary transformation to a direct democracy. Lastly, the evolution of the political system, in an effort to adapt to the development of the Internet, must be evaluated in order to complete the roadmap for the discussion. This examination includes a discussion of the contemporary formation of blogs and the effect of their invasion into America’s democratic system.The substantive constitutional discussion is based on a hypothetical. This article assumes a hypothetical member of Congress, seeing the power of the Internet to connect with constituents, chooses to maintain a blog on his or her official website. The legislator uses the blog to post topics of current political interest and to solicit opinions from constituents on the position the legislator should take on the issues. While this arrangement likely would have some political benefits in terms of making constituents feel empowered and important, it would also raise concerns from the legislator’s perspective. The legislator, for example, would be concerned that some constituents would post statements that other constituents would find degrading, offensive, or profane. To combat the potential harm to the legislator’s reputation from such statements, the legislator might want to take precautions, such as screening messages, altering some content, or removing certain messages.This article considers the constitutionality of these possible reactions from the legislator. The article applies a traditional First Amendment analysis to the issue. After defining the contours of the modern public forum doctrine, the article considers the status of blogs, concluding the public forum doctrine should apply to them. Finally, the article discusses why the application of the public forum doctrine to blogs should be problematic to legislators. This discussion demonstrates that the hypothetical legislator’s blog should be classified as a limited public forum in which the remedies the legislator seeks to use to control the blog will be deemed unconstitutional.

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