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Friday, February 12, 2010

Who Cares About Anonymi? Blog Control Act Chills Named Speech

Listening to the discussion of the Blog Control Act, HB 1277 and HB 1278, on SDPB Wednesday and here online, it occurred to me that supporters and many opponents of the bills are missing a key point. Sure, these bills chill anonymous speech, but the bigger problem is that they chill nonanonyous speech.

As anyone who's read my comment policy and related commentary knows, I don't care much for anonymous speech. As Curtis Price astutely observes, anonymous comments don't carry much weight. I'd be happy if all Internet users would find the courage to put their names to their words. And I'd be happy if the South Dakota blogosphere as a community, perhaps with legislative or judicial help, could find a way to prevent or at least properly punish all anonymous defamation.

Unfortunately, the Blog Control Act doesn't do that. Neither bill provides an effective mechanism for stopping people from placing defamatory content online anonymously. Neither bill provides a reliable mechanism for identifying anonymous commenters (IP logs? come on...).

The only practical effect of HB 1277 and HB 1278 is to drive citizens away from online speech, inlcuding citizens who want to speak by name. Nonanonymous bloggers allowing any sort of comments would have to expend time and money to maintain susbstantial visitor activity logs. Nonanonymous bloggers would face significant and amorphous legal liability for verifying the identity of commenters. Imagine a commenter gets clever, submits a defamatory comment under someone else's name and IP, and then, based on my IP log, I falsely accuse an innocent person of defamation and subject them to a lawsuit.

These proposed bills make a lot of folks who want to speak by name avoid speaking online, since it would not be worth the trouble to start a blog or other interactive website. That cost of participating in public discourse online, imposed on all honest citizens, is what will get these bills thrown out in court. Contrary to Bob Ellis's priggish poo-pooing, HB 1277 and 1278 really are an assault on the First Amendment, because of the chilling effect they impose on non-anonymous speech.

There may be some light irony that a blogger like me who doesn't allow anonymous comments is opposed to legislation targeting anonymous defamation. But there is nothing ironic or contradictory about opposing badly written legislation that misses its target and blasts a lot of honest, named bloggers right off the Web.


  1. if the South Dakota blogosphere as a community ...

    I think we're doing pretty well, thank you very much, without government intervention.

    You have your policy, and most sites (including Bob) require a valid email address to post. I discovered early on myself to moderate my posts just to keep defamatory (or just plain ugly) speech off my site.

    You'd think Bob Ellis, of all people, would recognize the value of that.

  2. Anonymous posts are useful - frequently speaking truth to power from the majority not protected by the artificial vestiges of tenure or retirement.

    One concern is the Hamiel/Berry anti-free speech act could make the SD blogsphere more akin to the censored Chinese blogs and internet. Hamiel/Berry affront the great journalist, Benjamin Franklin, who frequently published anonymously. The single greatest academic work consulted on interpreting the meaning of the US Constitution was published anonymously as 85 articles - The Federalist Papers. http://en.wikipedia.org/wiki/Federalist_Papers

    A second concern should be that Iceland is becoming the world's haven for freedom of expression. Iceland is adopting source protection laws from Sweden, the US First Amendment, and libel protections for journalists from Belgium to craft the world's most open freedom of expression protections.
    John Kelley

  3. monsanto and dow
    sleep with each others
    then give earth cancer

  4. I know liberals are poorly educated and intellectually slow, but come on, guys.

    If an unidentified person stands up in the middle of a public assembly and makes a slanderous comment about someone, they have done something wrong. Expressing an opinion is perfectly fine, but we do not have the right to claim something that is demonstrably false about someone, whether in speech, writing or anonymously on a blog.

    It is already illegal to libel someone. Libel victims can already obtain a court order to obtain any information available in helping identify the perpetrator. Hamiel's bill does little more than add slightly more structure to the law than currently exists.

    I don't think these bills are necessary, but get a grip guys. Nobody is trying to take away your freedom to mislead people about what a dead-end and anti-American philosophy liberalism is.

  5. Bob, can you open your mouth without insulting liberals?

    Come on, our opposition to these bills has nothing to do with the "liberal" agenda or the "conservative" agenda. It's not about Republicans or Democrats (you'll notice, Bob, I've been equally hard on the GOP and Dem sponsors of these rotten bills.) As I state pretty clearly above, it's not even about protecting anonymous speech. These bills are bad because they represent an unacceptable expansion of government power to dictate the price you and I and Curtis pay to enter the realm of online speech and speak by name.

    Can you bear, Bob, for one brief moment, to put aside your agenda and acknowledge our legitimate constitutional concerns about a chilling effect on named speech?

  6. Liberalism is such a corrosive philosophy, it's just hard for me to pass up any opportunity to denounce it.

    But you're right: there are some conservatives up in arms over this, too. I just can't for the life of me get worked up about a bill that really does practically nothing beyond what existing law allows for.

    If anonymous libelers are afraid, good. Lawbreakers should be afraid. But if you're not libeling someone anonymously, there's nothing to get ginned up. I might as well become worried that efforts to better track down anonymous anthrax mailers would chill free speech.

    You know I am convinced government has way too much power these days, but enforcing a reasonable and existing law with no appreciable expansion of those enforcement powers? I'm sorry, but there are dozens of encroachments I consider far, far more threatening than that.

  7. I will agree there are bigger things for all of us, including our legislators, to get ginned up about, like the state budget deficit.

    However, I think you're still missing some significant problems. As Wednesday's SDPB discussion brought out, these bills open up some very vague liability for Internet users (not the anonymous commenters, but the nymous bloggers and other website hosts and managers). The bills seem to open a door for the courts/state to hit you and me with a new level of culpability for what happens on our blogs. Right now, CDA says pretty clearly that you and I are not responsible for what our commenters say. These laws muddy those waters and pose a significant chance of increasing our legal bills.

    Now Todd tells us that a subpoena won't be such a big deal: if someone takes us to court over an anonymous defamatory content and we say, "Sorry, we don't know who said that," we're off the hook. Either Todd is underplaying the serious liability we could face (his scenario sounds to easy), or these laws don't actually help enforce the protections against defamation. If the latter, there's no reason to defend these bills. If the former, there's good reason to oppose these expansions of gov't power.

    So come on, Bob, even if you don't get ginned up, would it hurt you to just throw in and help defeat two bills that are at best useless, and at worst harmful to free speech? I'll agree your main point in the KOTA interview, that we do need to hold ourselves and our readers and commenters to high standards. I'm actually opposing expanded government power, and you can't jump in on my side? Come on, just this once! Neither of us will spontaneously combust! :-)

  8. I would prefer to see some of the language be more specific, and I think Todd was a bit too dismissive of the issue ("Sorry Judge, I ain't got none" isn't going to cut it), but I still don't think it's overly burdensome to provide--as a court-ordered matter in pursuit of a criminal investigation--a full accounting of any evidence or lack thereof that you might possess.

    If this was some matter of pursuing simple civil litigation because one person ticked off another person for calling them a jerk or something, I'd be right there with you. THAT kind of crap is highly offensive and would be an egregious expansion of government.

    What Rep. Hamiel is proposing is, if an expansion at all rather than a mere clarification, only the tiniest of expansions. And being one in pursuit of a lawbreaker, not one I can get ginned up about.

    Been at the hospital all day with my mom, so I'm heading home (where there's only dialup). So I'll catch you later.

  9. Hey Bob, here are some encroachments on the Earth that you believe is yours to rape:




    You can blame Liberals for exposing fascist objectives:
    http://www.rapidcityjournal.com/news/article_0cfd8456-1859-11df-9253-001cc4c03286.html?mode=story or you can squat over your computer on your ample glutei and feed your face with both hands oblivious to corporate earth-scorching.

    Cory's tendency to build bridges over your blindspots make him human.

    It is South Dakota that suffers under the ignominious and prideful Ellis disregard for government when it suits your own ends.

    -interested party


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