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Sunday, February 7, 2010

Epp Smokescreening for Blog Control Act with Bogus Poll

Todd Epp, professed author of one of the two components of the Hamiel-Turbak Berry Blog Control Act, is running a poll that smells of misdirection.

"Are anonymous defamatory blog comments protected free speech?" Mr. Epp asks. Of course they're not. Defamation is by definition a crime outside the protection of the First Amendment. Counsel for the plaintiffs might as well ask whether vandalism or domestic abuse is protected expression.

This loaded question sounds like a tactic to distract us from the real problem with the sloppy, dangerous House Bills 1277 and 1278. Contrary to the respected Dr. Newquist's assertion, no one is defending defamation. (I'm not even defending anonymity.) Bloggers and the ACLU are opposing an unconstitutional expansion of government power that favors the wealthy and well-lawyered, creates barriers to entry to the online marketplace of ideas, and chills free speech.

Vandalism is a crime, but you can't require every property owner to install security cameras to monitor their walls and yard.

Domestic abuse is a crime, but you can't require everyone to live in glass houses.

Defamation is a crime, but you can't conscript Internet users to work as speech cops for Pierre.

The question of the constitutional status of defamatory speech is irrelevant to the reasons to kill the Hamiel-Turbak Berry Blog Control Act.


  1. Sorry CAH, but your postings on this issues haven't been clear. Nice to know that you think anonymous defamation is still defamtion.

    That's the first question. The second question is how do you deeal with it.

    All I've seen from you is bitching and moaning but no solution. So how do you actually do something about someone who is anonymous defamed by blog comments?

    Cory, America wants to know!

    And hey, believe it or not, I have free speech rights. My blog, my content. If you're so smart, come up with not just a better bill, but a better poll question.

    As Pres. Harry Truman said, any jackass can kick down a barn but it takes a carpenter to build one. Which are you?

    It's nice to be smarter than everyone else but sometimes getting something done that makes things a little better is good too. We all don't have the time that you do to contemplate our navels.

    Have a great Super Bowl weekend watching America's game!


  2. Oh, and one other thing. If you don't like my poll, don't take it. You've heard of free will haven't you?

  3. I believe it is possible to defame someone with a true statement.

    Am I wrong?

  4. Again, not the point, Todd. If I didn't address the definition of defamation, it was because it's irrelevant to the reasons these bills are bad.

    Additionally, the fact that I haven't proposed a counterplan (or even a counterpoll?) yet does not change the main point that these bills are vague, ineffective, and unconstitutional. HB 1277 and 1278 do not make things even a little better. Right now, kicking that barn down is a darn good idea.

    "smarter than everyone else"? Now you're trying to make this a "Cory's a jerk, so vote for this legislation" argument? What kind of lawyer trick is that?

    Larry, as far as I know, truth is a pretty solid defense against any defamation suit. No one is entitled to a false reputation.

  5. Okay, Todd.
    How about comments that are left from people who don't hide behind an alias. While in this specific post. Cory directed all comments to the poll, the bill. You came right out and attacked Cory's intelligence and called him a jackass through a quote. If you came over and did that on my blog. Am I supposed to delete your comment so they won't come after me for an IP address?

    The content of your comment was up to you. Most of that could have gone without saying, and you had the power and control to rephrase that another way. You made a choice. I don't want to deal with the fallout of a choice you made.

    Mrs. April H. Schave

  6. Todd, a better bill?

    Nobody has shown any need for either of these bills, let alone an adequate defense of their rationale.

    Btw, I misspoke about the burden of proof at MBS; please post a scholarly explanation why.

  7. I clicked on the links to the two bills? Is that the only language? One short line for each? If I only have that and Todd's comments to go on, then I am not impressed. CAH did not attack you Todd, yet you attacked him. It is exactly that sort of behavior that irritates me with today's politics. I have to also agree with A. Dakota.


  8. Just a question. Was someone in state politics the victim of libel or slander and thus the reason for this bill? This has been hinted at several times. What is the rael reason behind this bill?

    Linda M

  9. Linda, that is an interesting question. I haven't heard of a specific case, and I haven't heard Hamiel, Turbak Berry, or anyone else step out with a public explanation yet of what motivated these bills.

    The closest incident I can think of is from last June, when Randy Schaefer was appointed to the Board of Regents, and an anonymous commenter tried to plant some unsubstantiated rumors on various websites about Schaefer. I don't think law enforcement ever got involved in that situation. We handled the situation ourselves.

    Some specific examples of potentially actionable online speech would help put the debate in context. Even absent examples of actual lawsuits and obstructive behavior from "any person who allows internet posts," I'm willing to entertain legislation seeking to prevent problems. Unfortunately, the ill-crafted language of these two bills only creates problems.

  10. It doesn't have anything to do with any legislatures or anything that I have heard of in our state. But here is a link to an example that happened last year. Cory you might have to clean it up a little.


  11. Hey Cory,
    How about we throw some pork on them bills. I've got $500,000.00 for every neighborhood resident association that starts up in the state during 2010. You got any pet projects to roast over that heat?


  12. Todd,

    You do not deny that their is value in anonymous postings. Whistle blowers, free speech, etc. So there are legitimate reasons to allow anonymous postings.

    The problem you identify; however, isn't uniquely solved by unmasking all posters. If the problem truly is that anonymous speech can cause financial harm to someone, there are other solutions.

    For example, the state could buy time on television to educate the population about how anonymous postings shouldn't be trusted without supporting evidence. That would decrease the impact anonymous speech can make.

    Additionally, the technological means to actually enforce this bill are tenuous at best and will be disappearing over the next few years. As the government (especially the federal) has started to track electronic speech, tools to interfere with the tracking have been developed.

    I run the firefox browser which allows plugins to dramatically modify its behavior. There are plugins that exist right now that could allow me to send all of my traffic through multiple proxies which make tracking my online signature nearly impossible. Additionally, there are plugins which could allows me to go all the way down to the packet level to mask my behavior.

    The two above examples are trivial to implement and make tracking any one person nearly impossible. If one really wanted to defame someone, it is simple to become untraceable. This bill might as well propose that citizens could not even think defamatory speech to themselves. It's just as enforceable.

    Lastly, such legislation will only hurt those who aren't trying to defame. Those who with to defame to their advantage will do so using technological means to mask their trail.

  13. I don't see how these laws don't conflict with existing federal law Section 230 of the Communications Decency Act. Under that Federal law I don't see how you could sue the owner of a website for anonymous comments posted on his site.

    This legislation just doesn't add up.

  14. Section 230—Curtis, you get the Legal Eagle Award of the day:

    "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

    Indeed, Curtis, I don't see how HB 1277/1278 get around that rule. Add that to the list of questions for the House State Affairs Committee hearing.

    ...and check out the specific cases on Curtis's link under Defamatory information. If you don't write the defamatory material yourself, you get CDA immunity.

    But note the bill proponents may be able to argue that the pending bills do not treat us as publishers or speakers by asking us to maintain and hand over the IP/identifying information on the anonymous speakers. (Hey, did that journalist shield law pass in Congress yet? And did it include bloggers?)

    Of course, if law and the Constitution don't convince you these bills stink, Tony's point about proxies should convince you these bills are technically impotent. It doesn't take a genius to use HideMyAss.com and leave me with no information to hand to Big Brother.

  15. I'd like to know why the bills direct folks who want to go to court to the "content provider" rather than WordPress or Google.

    Unless there is some technical or legal reason why the people who want to sue can't get anonymous commenter i.d. info. from WordPress or Google, these laws strike me as harassing bloggers in hopes of getting them to shut down anonymous commenting. And of course, WordPress and Google have a lot more resources for being named as a defendant in a lawsuit than your average blogger.

    Regarding the importance of anonymous commenting, South Dakota has a very poor score in a ranking of protection for whistleblowers: 48 out of 51.

  16. Just as Kelly said, that link that I left and doesn't work shows that now there is precedence that they can go straight to Google and others like them and bypass us all together. If there is a need to go after an anonymous user. There is another way to do it.

  17. Michael Black2/07/2010 6:21 PM

    As Cory knows, I have issues with people not using their full name. I find it somewhat ironic that we have comments on this issue from several people on this issue using internet handles.

  18. The decision of whether to allow anonymous and pseudonymous commenting is a tough one.

    Requiring full names tends to reduce the number of pointlessly ugly comments. However, requiring full names also means you don't have the benefit of people who have information they'd like to share but can't if they use their name.

    For instance, on The Oil Drum, some commenters say they work in the petroleum industry, and their comments have the kind of insight that you would expect a person to have on the industry in which he or she works. But because what they share sometimes contradicts oil company PR, they cannot use their own names.

    When I ran an energy blog, I used to get astute anonymous comments about specific renewable energy projects that clearly came from people who worked in the industry -- no one else would have had that kind of knowledge. I'm sure those comments were very useful for the investors who read the blog.

    When I switched the blog to a full name only comment policy, ALL of those comments dried up.

  19. Michelle Black

    Why would it be ironic that there are comments on here from people using their internet handles? We are the ones who are being targeted. My internet handle is still an identity that I want to protect, because I want to attract people to my blog. When I put my "internet handle" out there. I want it to be a name that does have some credibility to it. It is still an extension of who I am.

    I'm raising an eyebrow that there is no link to your name rather than you using your real name or not.

  20. Cory:

    I have disparaged and defamed Monsanto, both with my own name and with my now well-known pseudonym, for its complicity in contributions to nonpoint source ag pollution.

    I have been barred from SDWC.

    If I feel compelled to protect my family from violent retribution from corporate thugs by using my pseudonym, I would effectively be silenced by Todd's law.

  21. This is another example of people trying to address a problem that may not really exist through legislation. If we got rid of every bill that was related to one individual's situation or someone's fear of a problem that could develop (but hasn't), the South Dakota Legislature would meet for two weeks.

  22. My point is that people who have been defamed have no recourse under current law. The right to defame takes overwhelming precedent over the right not to be defamed. Anonymity and immunity from legal recourse enables defamation.

    I assume that the proposed bills are attempts to reach around the immunities provided by the Communications Decency Act, Section 230. That section provides immunity to the server company and those who exercise editorial authority over specific sites, but it does not give immunity to originators of defamation.

    The CDA was devised with emphasis on child pornography with the intention of not making site providers and operators liable for the acts of sexual predators. It is a horrendous piece of legislation. For example, newspapers are still liable for any defamatory statements made in their formats, but are immune from
    any responsibility for what appears in their online forums.

    The situation is so ridiculous that a news story appearing online must hew to the strictures of the libel manuals but the comments posted under the news story are exempt. And the subjects of defamation are left in limbo--to say nothing of the way online comments affect the overall credibility of news sources.

    For research papers, we used to teach units on how to establish the credibility and value of internet material. A couple of colleagues of mine still in the business told me that they now encourage Internet searches but will not accept citations from any sources that cannot be documented as established, reputable publishers. Defamation is only part of the misinformation and scurrility that has come to characterize Internet sources.

  23. Dr. Newquist:

    How would this proposed legislationaffect corporations?

    Would they enjoy the same recourse under the conditions that you have just described?


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