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Thursday, February 4, 2010

HB 1277: South Dakota Legislature Threatens Bloggers with Vague Law

In their effort to chill online speech, Representative Noel Hamiel, Senator Nancy Turbak Berry, and a couple dozen of their colleagues in the South Dakota Legislature are either ignorant or evil. I'm hoping for the former, because I can do something to fix that. If it's the latter, I'm going to have to ask my praying friends for help.

Two last-minute bills got dumped into the hopper today. HB 1278 is the more egregious of the two, and Mr. Powers does an excellent job of explaining why it stinks. I'll take a swing at that bill later.

For the moment, I'd like to pick at the lesser of the two, HB 1277. This bill only specifies that "online content providers" can be sued to reveal "reasonably available" information "kept in the normal course of business" to help the plaintiff identify any unknown, anonymous, or pseudonymous authors who post allegedly defamatory material online. The bill specifies that the plaintiff pays for the retrieval of the information, and that the content provider is dropped from the suit upon complying with the order to turn over information within 30 days.

This bill smells like the fallback position: maybe the legislators dump HB 1278, then pass HB 1277, saying, "See? We listened. We passed a more reasonable bill. Consider yourselves lucky, Internet punks."

Bull. HB 1277 is a Charlie-Fox of a bill on many counts:
  1. "Online Content Providers." Some jerk posts a nasty comment about you here on the Madville Times. Whom does HB 1277 authorize you to sue? Me? I'm the content author. Google provides the content via its software and magic servers in undisclosed locations. Midco or Sioux Valley Wireless or whomever you buy Internet from provides the content to your computer. Who's the responsible "provider"? Or do you just get to sue everyone? HB 1277 doesn't say.
  2. "Reasonably Available" ...for whom? A professional webmaster with a degree in computer science? A person who takes the time to purchase a unique domain and web hosting package? A person who chooses to use Wordpress, which includes IP identification? A person who chooses to use Blogger, which does not include IP identification? Define this new legal standard for tech savvy to me. This bill sure doesn't.
  3. "Kept in the Normal Course...." I don't normally keep any IP information. My stat counters automatically dump old entries. Someone insults you here on February 5, you lawyer up and drag me to court on March 5 (don't—I'll be judging State Debate), and I'll shrug and say, "Sorry! I don't have a clue who was on my blog four weeks ago."
  4. "...of Business." Business? My business consists of occasionally selling ads. Sometimes people leave me tips (and thank you, dear readers for hitting that tip jar!). Writing these posts and engaging in discourse with commenters isn't business; it's a hobby. It's a civic duty. It's great fun.
I could have written a better, clearer law in my sleep.

But not to worry. The courts have already ruled that the First Amendment protects anonymity. The courts would throw out HB 1277 in a flash (and I would be happy to provide the test case that would do it).

Actually, I'm thinking this legislative assault on bloggers is just a trick. They're trying to distract us bloggers from the other bills they're working on. Bills like the dram shop law, HB 1004, which would declare that a bar or liquor store owner isn't responsible for harm done by a negligently supervised drunk employee. Senator Russell Olson thinks that's a great idea. So does the House Commerce Committee, which passed it yesterday 7–6.

To review: some legislators, like Reps. Greenfield and Krebs, think I should be taken to court if some nameless meathead insults them on my blog. But they don't think the courts should touch a liquor vendor whose employees get schnockered at work and start whacking customers.

Someone must be pulling my leg. Good luck pulling my IP list.


  1. Since the other topic on this is a ways down, jst a repeat on how to contact legislators on this or any issue you wish.

    Go here to find the members of the House State Affairs committee.


    Then go here to send the email.


    You add your email and subject, then click on a committee member, then write the email, send it; and for the next member all you need to do is change the name. Easy!

    And email our rep Fargen to ask why he cosponsored this.

  2. One of my friends has already been threatened with litigation trying to gain access to her blog comments. She dodged it for now, but I could see a judge want to forcably compel such an action in a civil case right now.

    I belong to several professional online forums. The rule is that when you post, you use your real name and location. There are no exceptions. It would be nice to see that here too as most people do not know who "nonnie" or "Goldman" are in real life.

    On our website, we use moderated comments. That means, I have to approve all comments before they can be published. That is a must in case the spam filter misses any potential comments from online marketers.

  3. Cory:

    Nice to know that you can write better in your sleep than I can fully awake.

    I am the author of HB 1277. I was asked by Rep. Hamiel to try to figure out a constitutional way to help people who have been defamed by anonymous or nom de plume comments or posts.

    As a citizen and a lawyer, when I am asked by a public official to assist them, I feel obliged to try. And being in the unique situation of being not just a lawyer but a lawyer who practices defamation law, has education in computer law, and is a blogger, I have some expertise that might be helpful.

    As a lawyer, I have had clients on both sides of defamation suits. And when a legislator asks my help, I feel an obligation to help if it is in my wheelhouse.

    While anonymous commentary is protected speech, anonymous defamatory commentary is not. The law will not allow you to defame other simply be making it anonymous.

    See this article for a nice summary from someone smarter than me on a 2008 case on this very issue: http://bowtielaw.wordpress.com/2009/01/27/standards-to-identify-anonymous-posters-for-defamation/

    See also: http://www.ediscoverylaw.com/2009/03/articles/case-summaries/court-addresses-tension-between-defamation-victims-rights-and-first-amendment-protection-of-anonymous-internet-speech-provides-guidance-on-how-to-proceed/

    Some courts have made the bar very high before allowing disclosure of the anonymous commenter's identity. Other courts have found the bar a little lower. But there is or will be a bar that will have to be jumped by plaintiffs. Where it is set will be either up to legislatures or the courts or both.

    Is what I drafted perfect? No. Can it be improved? Yes. But if the Internet is going to truly be a respected and mature medium people can trust, it has to play by similar rules as do other means of communication. Perhaps even Dr. Newquist would agree with me on this point. I'd love to hear him weigh in.

    As Justice Oliver Wendell Holmes said, you can't yell fire in a crowded movie house. First Amendment rights are not absolute. With rights come responsibilities, like not defaming people.

    The debate will be good for the blogosphere.

    And good luck with writing legislation in your sleep, professor.

    Best regards,

    Todd Epp, Esq.
    Middle Border Sun

  4. I find this whole business fascinating. I've been insulted in anonymous book reviews, but never truly defamed, as far as I know.

    If someone says that one of my books ought to be burned because it's so bad that it must have been handed down to me from "Beelzebub" (one "reviewer" actually wrote that, anonymously, of course), I think that any rational person who reads it will disregard it (and the "reviewer") as insane. As for irrational people, what can I do? No one can legislate a--holes out of existence.

    If someone comes forth with a claim to the effect that I committed a certain crime in a certain place at a certain time, and yet it isn't true, then it could cause a whole lot of trouble for me. Lives have been disrupted by anonymous Internet libel. In such a case, you're doggone right I'd go after anyone I could in an effort to get compensation, especially if I were actually arrested and thrown into jail! Such libel ought not only to be grounds for civil action; it ought to be a felony, say I.

    The explosion of "virtual venom" troubles me, for it suggests that the "theory of social entropy," which one of my radical college friends drafted in the 1970s while I attended the University of Minnesota, might actually make sense. I wonder at times whether the "virtual venom" results from an increased willingness of people to spew poison, or a general increase in the quantity of poison they have to spew, or both. I suspect both. Pity.

    Every law can be abused, of course, leading to unintended consequences. Insults are one thing; libel is quite another. A law of this sort could do some good if carefully drafted. But that will take a lot of time and attention. Better to have no law than a bad law, eh?

  5. Mitch has a lot of 'splainin' to do. Catch him at the crackerbarrel this Saturday....

    Todd, as I laid out above, this bill lacks the specific language necessary to effect its practical intent of discovering the identity of defamatory speakers. All this law achieves is a brutal chilling effect on online speech. I agree, there is not right to anonymous defamatory speech, but this bill would shut down all sorts of regular anonymous speech, as keepers of such venues will shut down rather than meeting the onerous requirements of the law. And the courts say no to such chilling effects; they have held time and time again that the solution to bad speech is more speech, not less.

    Similarly, Stan, you are right that insult and libel are different beasts. The problem with HB 1277 is that I get treated as if I'm complicit in criminal libel before anyone has proven it's libel. Again, chilling effect.

    Two words, Bill: right on.

  6. Michael, thanks for reminding me about discussion forums. Suppose you're on a forum that allows anonymi and pseudonymi. You start a thread, and some replies with language that offends someone with power, money, and an idle lawyer. Does HB 1277 haul you into court for providing the initial content that elicited the allegedly defamatory response?

  7. What's next? Emails and text messages, because that's where the real slander occurs according to news reports. They are also electronic, but protected. Blogging is today's version of evolved letter-writing. If you disagree with someone or a decision that has been made, you have a right to your opinion, under our Constitution. No court in the world will touch this as long as you state, "in my opinion" with your comment or criticism. I don't agree with a lot of what Cory writes, but I'll defend his right to say it and the rights of those who respond, regardless of their slant.

  8. Great discussion!

    Todd, we spoke at a meet and greet for Jack Billion in Deadwood in 2003.

    Do you see the recent Supreme Court decision as precedent for what you have just described?

    Btw, MBS doesn't see my 8330, either.

  9. This seems like they're trying to swat a fly with a shotgun to me. From a policy standpoint, has online defamation really become more of a concern than free speech?

    I cannot envision a functional system that both documents and protects a person's online postings. Even when legal protections are in place, we have seen that government in collusion with private industry is willing to ignore such protections (warrant-less wire taps anyone). If everything is documented, we must assume due to empirical evidence that the information will not be used only for its intended purposes.

  10. Michael, Nonnie is me, Linda McIntyre, and if I fail to add my name to a post, Cory usually fills in and addresses me directly! That's fine. You wouldn't know me whether I post my name or not probably actually. There are others on this site who don't post with names and their information isn't on their web page either; those are the true people you don't know.

    This particular legislation cuts across party lines and goes directly to freedom of speech, and that is how we are responding to it. The crackerbarrel will be interesting this weekend in this regard. I hope all those posting on here attend it, or attend the ones in their areas across the state.

  11. Slightly off topic but relevant.

    The "torture memo" lawyer is at the Cambridge Forum--fascinating.

    Click on my header for the link.

  12. Cory, the paid forums I post to are for professional photographers. To even gain access to these forums, you have to apply to be a member and then be checked out.

    So Linda, why not use your real name instead of nonnie?

    And while I know who Goldman is, it would be much better if my insurance salesman friend used his real name too.

  13. Mike, There's no secret who I am when I respond to a blog post. After all, my picture is on the comments. Also, if you click on Goldman, it tells you everything you need to know, including my name, email address, likes and dislikes, etc. I use Goldman because google asked for a user name and that was an old nickname from high school. Better than my nickname in grade school...Gomer (as in Gomer Pyle). This legislation created by attorney Todd Epp tells me someone has their britches in a bunch over blog criticism and they want to stifle free speech.

  14. GoldMan:

    Yup, that's me. Hates free speech. That's why I did it.


    Put the shoe on the other foot. Someone anonymously calls you a child molester. You lose your job because of it. So, you shouldn't have any means to find out who posted it so you can sue them?

    I'm just sayin'.

    I'm just glad this bill has finally brought Sibby, PP, and Cory all together singing Kumbya and get Epp, Hamiel, and Turbak.

    Todd Epp
    Middle Border Sun (For the time being unless my bill puts my own blog out of business, which is my real intent.)

  15. Mr. Epp:

    I'm certainly not saying you or anyone else "hates" free speech, but this bill definately has the potential to stifle free speech, and why? Where is the problem?

    All of the bloggers you mentioned are giving the internet and blogs much more credibility than the public actually gives them. Readers understand these sites are merely people's opinions, often salacious or extreme, but strictly opinions.

    Legislators try to fix "what ifs" when there are so many other "real" issues that need to be addressed. This potential blog law is lost in cyber space.

  16. Give Epp some slack, he is a lawyer. Lawyers defend the innocent and the murderers, the child molestors, the rapists, the business frauds... and even stoop so low as to help legislators. It is the job of lawyers.

    But, I would like to know some specific examples less actual names of course that are driving the desire for this legislation.

    And, it should be amended so that it specifically does not give this express right for a data fishing permit to legislators and elected officials unless it is a personal attack unrelated to their official incompetence or policy perspectives, etc.

  17. So, wait a minute:

    In the next thread Nonnie said that at least one legislator signed on to (paraphrasing) send a message. To whom? That's chilling enough.

    Mr. Epp is a lawyer, Ms. Turbak-Berry is a lawyer. Perhaps these bills are, indeed, fishing permits (Doug's words), prima facie.

    Neither of these bills as written could stand up to judicial scrutiny. I sense Mr. Epp has the skill to have crafted a far more airtight bill.

    Which brings us back to: Why?

    Mr. Epp has shown some evidence of a rather public self-edification; but, this smacks of some other intent--a shot over the bow to someone else's "wheel house."

    This is hardly within the purview of state legislators, let alone South Dakota legislators;

    There is an undercurrent of corporate influence here. My own suspicion would include Monsanto, of course.

    Hyperion? Corporations have recently been annointed as having the capacity for feelings.

    Which corporations have the most to lose to being found out?

    Mr. Epp can cop professional silence; until he chooses not to, of course.

    Cory, let's keep digging.

  18. Larry, could you share a little about yourself? I know quite a bit about the other VOPS (Very Opinionated Persons) who comment on this blog, but you're a blank slate. Your profile doesn't say much. We certainly need more radical lefties in search of the truth in SD, and Lake County.

  19. Hi John.

    Cory has my permission to fill you in.

    Click on my header again to see another part of my bigger world.


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