Blog Control Act: Is Five Counterplans Enough?

A few days ago, Blog Control Acts sponsor Rep. Noel Hamiel asked me how I would address the problem of anonymous libel. His question seemed to echo Mr. Epp's approach to the debate, suggesting that coming up with a plan, no matter how bad, is a sort of price of admission to the debate.

I reject the apparent premise. The point here is that House Bills 1277 and 1278 are bad legislation that should be killed in committee (tomorrow, Monday, 7:45 a.m.). The absence of a plan does not justify carrying out a destructive plan.

Nonetheless, I took up Rep. Hamiel's challenge. If you really think anonymous online libel is a problem (and I'm still waiting for examples of online speech of any sort that has done actual damage in South Dakota or libel cases in South Dakota that have been stymied by comment anonymity), here are five counterplans to challenge anonymous libel:

1. Use current law to subpoena the service providers (Google, Midco, etc.) for identifying information in investigations of illegal activity. Those companies are the real experts in tracing online traffic, not the hobby bloggers who may not even know what an IP is. Those companies are also better equipped to check frivolous lawsuits and protect legitimate anonymous speech with their experienced legal departments.
   
2. Let the Internet police itself. Bloggers are citizens and neighbors like everyone else. We can craft our own policies to prevent anonymous cowards from spreading rumors. Our readers can talk with us. If we see wrong has been done, we can try pointing aggrieved parties toward libellers, and they may be able to resolve their differences face to face, with no cops, no courts, no lasting harm done.
   
3. Accept a cultural, not legislative solution. The Web is new. We've never had this much free speech power, especially not free speech so dissociated from our identity. People need time to develop the "media literacy" necessary to properly filter, interpret, and respond to all this online speech. They're doing that: they're already recognizing that anonymous claims aren't as substantive as claims with names. That's what I teach kids in my speech classes. That's what the high school debaters I judge every weekend practice with their evidence. People are already learning that there's a difference between the speech of people like Pat Powers, Todd Epp, and me who speak by name and the cowardly rabble who fling unsupported insults. Let the culture continue its evolution toward healthy, responsible speech.
   
4. Support a media literacy campaign: make available funding and materials to encourage K-12 and university teachers to cover Internet etiquette, legal issues, and other relevant topics in their language arts and communications classes.
5. Support an anti-anonymous defamation campaign: run ads telling people to be neighborly online and reminding them libel is libel, even online, with severe penalties. (Maybe even throw in Jesse Jackson, exhorting people to "Be Somebody!" and use their names online.)
   

I don't know if any of the above proposals would reduce online anonymous defamation. But each one of them is better than HB 1277 and 1278, since not one of them creates the unconstitutional chilling effect on named speech or the overly vague legal liability that those bills do.

Further counterplans are welcome. But doing nothing is still better than imposing the active harm of the Blog Control Acts.

Feel free to share the above with the members of the House State Affairs Committee, including U.S. House candidate Kristi Noem, who get the first chance to kill HB 1277 and 1278 tomorrow morning at the 7:45 a.m. hearing.