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Friday, February 5, 2010

Hamiel-Turbak Berry Blog Control Act Chills Free Speech

The Hamiel-Turbak Berry Blog Control Act comes in two flavors: crap sandwich, and crap sandwich with extra crap. I've chewed up the first; now let's sample the second.

HB 1278 creates this mandate:

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.

Pat Powers understands this provision's offense to the First Amendment and litle girls who love unicorns. HB 1278 creates an onerous barrier to entry to free speech online. Consider: I've created this blog for free. I didn't have to buy web hosting or install IP-tracking services or learn how to monitor and archive data about users accessing my server. I don't even know where my server is. I just opened an account and started typing. So did other people. And all that typing has turned into the multi-headed monster we call the South Dakota blogosphere, perhaps the best forum for substantial, ongoing political conversation and record-keeping this state has ever had.

HB 1278 creates a legal obligation that creates a price for speech where there currently is little. That price, if exacted, will shut down huge portions of the South Dakota blogosphere. At the very least, most comment sections disappear. A lot of blogs go poof as well: a lot of bloggers will respond to HB 1278 by saying, "The state doesn't pay me enough to be its speech cop."

HB 1278 suffers the same malady as its stewed afterbirth companion bill, HB 1277: it chills free speech, even while lacking the specific language necessary to effect its stated practical intent of identifying defamers. Consider:
  1. "Any person who allows internet posts": This phrase laughably fails to specify that it applies to, say, a person who hosts a blog, allows anonymous comments, and then receives on said blog a purportedly defamatory anonymous comment. It sounds like I'm nitpicking, but this is law, not my comment section. Exact language is crucial to good legislation. The way HB 1278 is written, if my friend Toby asks to borrow my computer to start a blog and I consent, boom! I just allowed internet posts. HB 1278 just made me responsible for snooping on Toby's commenters.
  2. "provide identification... of persons who leave or upload content": again, the law fails to specify which persons, which content, and on what sites. The way this statute is written, it makes me a speech cop not just for my blog, but for the whole darn Internet. I know that sounds like word games, but powerful people pay lawyers money to play word games like this to stick it to people whom they don't like. And legislators get paid to write better legislation than this vague, petty, poorly thought-out bill.
A quick analogy: imagine some vandal runs around town taping defamatory posters to fences. HB 1278 is like a requirement that every fence owner install security cameras and record all activity to help government catch posters it doesn't like.

Under HB 1278, Big Brother is you. You should not like that. You should tell your legislators you don't like that at this weekend's crackerbarrels. And then you should hoot and holler at the House State Affairs Committee (chair Bob Faehn, vice-chair Kristi Noem), which will get the first chance to kill these bad bills.

Whether you blog about politics, bicycles, or unicorns, whether you comment or just read, you have a stake in defeating these bills and protecting the First Amendment. Spread the word!


  1. Cory, I agree.

    Steve may be annoying but he's harmless.

  2. The main point here is that this legislation is not harmless. Let's all focus on the legislation, not any personalities. Let's keep our legislators focused on the topic of killing HB 1278 and HB 1277.

  3. There's a crackerbarrel tomorrow at city hall at 1 PM. Come and voice your concerns!

    Linda McIntyre

  4. Cory was I "off topic" is that why you deleted my post?

    The point is "all" should be welcomed. That is if you truly believe in free speech.

    But I guess you want to free speech but still retain the ability to shut out oppsing views.

    For some reason I think Obama would love to just delete Fox news and Glenn Beck.

    Aaron Heidelberger

  5. Good analysis, Cory. Thanks.

  6. Querie -- do you think if blogs didn't raise issues of public concern and challenge people in power and the things they do on our dime --- this bill would have been introduced?

    Sort of like asking if you wonder if Bunker Hill would have happened, if those Lexington and Concord folks hadn't been so pesky.

    PLUS - collectively the blogosphere is a challenge to the MSM, and they thought they had title to the First Ammendment. You guys are pesky, rebel squatters --- regulate you,and if that doesn't work - tax you.

    --Lee Schoenbeck

    PS hard to do satire at a keyboard

  7. Aaron, I mean this in all sincerity: this issue is much bigger than your partisan bullshit. I'm not the point, and neither are you. Neither are the Dems or the GOP. The point is that the legislature is taking an unconstitutional action and stifling free speech, and all liberty-loving citizens should work together to fight this real threat.

  8. [By the way, Bill, Aaron is my cousin. He's in the Glenn Beck club. They say they are interested in liberty and limited government. We'll see if they put their money where their mouth is and help fight these bad bills.]

  9. Oh. Ok. Reminds me of some of my cousins.

    Hi Aaron. Cory's right, this bill isn't a partisan issue. But, if you need partisanship to really get on the bandwagon against these measures, get this: HB1277 was written by a liberal Democrat. Honest.

  10. Yes, Cory I'm 100% against this Bill. I believe my entire group is against this bill.

  11. Good! Glad to have you on board. Now hit those crackerbarrels this weekend and firmly explain to your legislators why these bills are bad.

  12. I like Glenn Beck and hate this bill!

  13. In light of the wording of this bill, I will make further contributions to my Amazon Author Central blog with a wary eye until either:

    (a) The bill crumples under a hailstorm of public outrage and derision (as I suspect it will), or

    (b) The wording changes so I don't have to fear that I might become "a person who allows ..." indirectly through the Amazon server, wherever the heck that is.

    Out, and forever out, incompetent and overzealous politicians must go! (I'm still free to say that, aren't I?)

    This comment supersedes any and all other comments I have made concerning HB 1277 and HB 1278. The bad outweighs the good here. Down with them both.

  14. I did ask Rep. Fargen about this at the crackerbarrel. He said he just signed on so that they could get a discussion going on this issue. If that is correct, I guess he accomplished his purpose! But I think there are safer and less time-consuming ways to get a discussion on such an issue.

    Linda M

  15. If HB 1278 becomes law as stated, I will consider moving out of South Dakota for my own legal protection.

  16. Thanks for the report, Linda! I understand the idea of a legislator agreeing to open a conersation, even if the legislator disagrees with the bill itself. In parliamentary debate, seconding a motion or an amendment doesn't necessarily mean that you support it, only that you are willing to give the supporters a chance to make their case.

    However, as far as I know, sponsoring a bill is a different issue. It doesn't take a bunch of legislators to put a bill in the hopper. And some bills, like HB 1277 and HB 1278, are bad enough that they shouldn't be given even that much light of discursive day, let alone the opportunity to be passed by potentially inattentive, misinformed, or discomfited legislators who don't like their actions being held more accountable by the blogosphere.


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