Listening to the discussion of the Blog Control Act, 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., on
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.
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