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Monday, February 8, 2010

First Amendment Requires Responsibility; Good Legislation Requires Practicality

David Newquist makes my life difficult. He is a thoughtful, passionate defender of the First Amendment and personal responsibility. And he sees bloggers like me abandoning both in our protest of the Hamiel–Turbak Berry Blog Control Act (HB 1277 and HB 1278).

The idea that holding people accountable for their words chills open discussion is nonsense. It destroys open discussion. The First Amendment was not conceived as a protection of cowardice and insidiousness. Those speakers who fear responses to their words and wish to throw missiles and cower behind a mangled First Amendment, we cite another cliche: if you can't stand the heat, stay out of the kitchen. Or in the language of the blogosphere, if you can't take responsibility for your words, just STFU. Communication involves a message from a sender to a receiver and back again. An interpretation of the First Amendment that protects anonymous speech is an interpretation that subverts the whole idea of robust dialogue [David Newquist, "An Identity Crisis," Northern Valley Beacon, 2010.02.07].

I agree with every line in that passage. I've been running my comment section since May on similar principles, deciding that the cowardliness and invidiousness of anonymous comments outweighed their occasional value. If you won't put your name to your words, your words aren't important enough to publish.

Yet I disagree with Dr. Newquist's thesis that I am standing up for the right to defame anonymously. I recognize no such right. Neither do the courts. However, I do not recognize the state's authority to dragoon me into serving as a speech cop. That burden chills speech that Newquist and I would agree is protected.

April Schave of The Rooted Pasque gets the chilling effect:

...if I continue to blog, it would have to go underground, (of sorts), because I need a serious upgrade and I'm willing to bet that any software that we will be required to install would most likely not be compatible with my current system. Limiting my right to free speech based on my current socioeconomic status [April Schave, "I'm An American, I'm Free, I Can Do Whatever I Want. Right?" The Rooted Pasque, 2010.02.07].

HB 1277 and 1278 make it harder for regular folks to blog. Everyone who wants to use the Internet to express herself, whether about the neighborhood or unicorns or John Thune's or Tim Johnson's ineffectiveness as Senator, has to become a techno-whiz. Most of the bloggers I know are perfectly willing to take responsibility for their words. Require them to learn about IP identification and proxies and maintain records of everyone else's speech, and they'll be inclined to say, "Forget it. I'm not a techie, and I'm not a cop." And at that point, a lot of good voices disappear.

Oh yeah, and did I mention proxies? Tony did yesterday. Get a couple Firefox plugins, or just log in to HideMyAss.com, and suddenly, HB 1277 and 1278 are useless. The anonymous jerks who are motivated enough to learn some tech and make mischief will do so. Regular citizens will be stuck with a record-keeping mandate that catches no bad guys.

So really, as Tim Gebhart astutely points out, the debate over the Blog Control Act doesn't have to be a grand discussion of Constitutional rights and responsibilities. We can agree the First Amendment doesn't protect defamation. We can agree anonymi are cowards not to be given credence. Yet we can still recognize that HB 1277 and 1278 are badly written laws that chill good speech without stopping bad speech.


  1. I just sent Paul Guggenheimer an e-mail about this issue. In case it has not yet appeared on "Dakota Midday," maybe it will soon.

  2. Are you going to Pierre to testify, Cory? You should.

  3. There was some discussion on Midday during the Friday computer guys. I sent them links to the bills.

    Osborne emailed me with the link to Epps blog. Somebody there is aware of it, but they don't seem particularly interested in discussing it.

  4. The text of the two acts seems rather benign. The first amendment makes Libel and Slander very difficult in general to prosecute and this would be even more difficult regarding an anonymous post on any website. How much damage could ever be established? The very fact that it is from an unidentified source means the credibility is lacking, which makes any potential damage very weak. The situations where a judge would support demanding an IP give up their records would be rare. The concerns about free speech being suppressed by this are wasted energy.

  5. I just sent the following e-mail to one of the co-sponsors of HB 1278. Hopefully, it did not vanish into the omniverous virtual ether ...

    Dear Sen. Turbak-Berry,

    This concerns HB 1277 and 1278, but particularly 1278 which states that "Any person who allows internet posts shall keep a record of the internet-protocol logs adequate to provide identification and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content."

    I live in Lead, South Dakota. I write scientific and technical books for a living. You can find information about me at www dot sciencewriter dot net. The online book seller Amazon dot com allows for me to post blog entries concerning my work. While I have not as yet used this service much, it could in the future provide an excellent way for me to interact with my readers worldwide.

    If you explore reviews of some of my books at Amazon dot com, you will come across some statements by anonymous readers that border on defamatory (in my opinion). For example, one person recommends that my publisher fire me because I'm the "worst math author ever." Another suggests that one of my books was inspired by the devil. I have a rather thick skin, so I am inclined to laugh at "reviews" such as these, because if they really defame anyone, they defame their authors, not me. But I can certainly see the motivation behind bills such as HB 1277 and 1278. One step further by either of these "reviewers," and some real personal damage could have been done to me.

    I imagine that should I get a court order forcing Amazon to reveal the identity of either of these terrestrial creatures (or any other anonymous "reviewer" who says bad things about me), Amazon would turn the information over to the court; every Amazon commenter must have an account, and their personal information must therefore exist somewhere in Amazon's records. In that sense, I suspect that Amazon dot com already complies with HB 1278.

    But I, personally, have no control over the comments and reviews of my work that appear on Amazon dot com; I cannot delete them, nor compel Amazon to delete them. I do not have access to Amazon's Internet Protocol (IP) logs, so I cannot, all by myself, track these people. Nor can I track the identity of location of anyone who might comment on my Author Central blog at Amazon dot com. Let me repeat: I cannot do it. Not because it would be difficult, not because it would prove expensive and inconvenient, but because it is +literally impossible+.

    My concern is, if I am a "person" (and at last check I was) who "allows" postings on an Internet site (and I guess that I "allow" posts by having an Author Central blog at Amazon in the first place), HB 1278 would seem to compel +me+ to keep records that I could simply not keep for straightaway technical reasons. It would be like asking me to see through a brick wall.

    I can understand the intent of these bills, and especially HB 1278. I do not wish to be defamed by some anonymous idiot who does not like my work. However, I believe that the wording of these bills, and especially of HB 1278 must be refined, so people like me do not find themselves legally required to perform impossible tasks.

    Thank you in advance for your consideration.

    Stan Gibilisco,
    715 Ridge Road,
    Lead, SD 57754,
    www dot sciencewriter dot net


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