Legislature Posts First Proposed Bills of 2011

What's that under my tree? Christmas bills! Yahoo! Start your RSS engines: the first pieces of legislation to be proposed in the 2011 session of the South Dakota State Legislature are in the e-hopper.

First in from the State House: two bills on the agricultural productivity tax (you know, the quasi-income tax now imposed on farmers in place of plain old property tax). House Bill 1001 changes shall to may in a couple spots (ah ha! So shall and may do mean different things!) and allows the folks in charge of this tax to incorporate more data in the calculations. HB 1002 clarifies the need for documentation and the kinds of data the director of equalization can use to assess taxes on ag land.

HB 1003 empowers the Interim Rules Review Committee to revert rules that impose "unreasonable" costs on local governments and school districts. If I'm reading the law right, the interim committee already has the power to revert rules for other reasons. But I wonder if this change will resurrect debates over costs that are better settled during session by the full body.

The Senate is a bit slower out of the blocks, with a couple of style and form changes. Senate Bill 3 has a little more substance: it clamps down on the use of South Dakota's state seal. Section specifies that the state seal may not be used for the following:

1. On or in connection with any advertising or promotion for any product, business, organization, service, or article whether offered for sale for profit or offered without charge;
2. In a political campaign to assist or defeat any candidate for elective office; or
3. In a manner which may operate or be construed as an endorsement of any business, organization, product, service, or article.

In other words, if this passes, Senator Russell Olson (R-8/Madison) will have to get the Bulldog Media folks to whip up a new header for his website:

Small but deadly: Senate Bill 3 would ban use of the state seal in political campaign literature.

Senate Bill 3 would empower the Secretary of State to come up with rules to "assure tasteful and high-quality reproduction of the seal." I welcome readers to compose their own punchlines.

The Interim Bureau of Administration Agency Review Committee put this bill together. They even had the foresight to pre-empt complaints of censorship. Says Section 7:

Nothing in this Act prohibits the reproduction of the state seal for illustrative purposes by the news media if the reproduction by the news media is incidental to the publication or the broadcast. Nothing in this Act prohibits a characterization of the state seal from being used in political cartoons.

Hey, Ehrisman! You're still good to go! But now let's see if there's floor debate on whether blogs meet the Legislature's definition of "news media."

There's much more fun to come from our hearty 105 in Pierre. Stay tuned!

"God Hates South Dakota"? Westboro Whackos Coming Sunday and Monday

Worse than wingnuts: A Facebook friend alerts me that the Westboro Baptist Church is coming to South Dakota Sunday and Monday scream and holler and make Christians look bad.

I'll direct you to their website, even though their URL demeans homosexuals and God, and even though their icon desecrates the American flag by flying it upside down. You can find there the following picketing schedule for these angry, deluded, inbred Christian fakers:

1. First Congregational Church, Sioux Falls, November 21, 2010, 10:00 AM - 10:30 AM. "WBC to picket this dog kennel where the big lies are taught." What, is First Congregational doing the blessing of the animals this weekend?
   
2. St. Joseph Cathedral, Sioux Falls, November 21, 2010, 10:30 AM - 11:00 AM.
   "WBC will faithfully remind their fellow man in Sioux Falls that priests rape children! Giving your children over to those pedophile rapists is equivilent—" wait. At the point where the Phelps family points at St. Joseph's and squeals "these rapists," that's slander, right? Bring your camcorders and your lawyers.
   
3. Calvary Cathedral, Sioux Falls, November 21, 2010, 11:30 AM - 12:00 PM... because Bishop Gene Robinson is the greatest threat to humanity in the world.
   
4. Washington High School, Sioux Falls, November 22, 2010, 7:40 AM - 8:10 AM. Great, even more congestion in the Warrior parking lot.
   
5. University of South Dakota, Vermillion, November 22, 2010, 9:30 AM - 10:00 AM. "These institutions of so-called higher learning are pathetic substitutes for reading the Bible and BELIEVING GOD!" Right—try substituting "Read Bible" and "Believe in God" for "Graduated summa cum laude, USD Law" or "MBA" on your next job application. Really.
   

I am at a loss as to recommend the proper response. An angrier atheist than I—or heck, even a good Christian disgusted with such grandstanders puffing themselves up with sensational hate—might get some friends together to organize counter-protests. But some people, like Fred Phelps, are so mentally unbalanced, so incapable of rational discourse, so dedicated to making themselves feel important by drawing attention to their madness through any means available, that it's not worth good people's time to give them any attention. I'm probably helping them "win" here by even mentioning their little protests.

I have an easy out: the Phelps shouters aren't coming to my school or my town. They aren't laying picket lines anywhere that I must cross. But parishioners at three Sioux Falls churches and students at Washington and USD will face a brief test of character Sunday and Monday. How will they respond to crude, aggressive insults offered in a spirit of sheer, selfish hatred? How will parents explain to their children the deception and malevolence that drives these "Christians"? And how will they stop the Westboro infection of hatred from spreading?

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Update 2010.11.20 06:06 CST: Looks like the coming South Dakota appearances of the Phelps fakers may end up going about as well as this Thursday demonstration in front of a mosque in Dearborn, Kansas, where counter-protesters outnumbered Westboro "Baptists" about 10 to 1. Two Sioux Falls copunter-protests have popped up on my Facebook invite list:

1. Love Is Bigger Than Hate: Tove Bormes started this event. Attendees plan to bring signs and music to all three church events. Says Bormes, "[R]ather than addressing our protest at the idiots, address it to those watching, with positive messages about a) God's love, and/or (for you atheist and agnostic pals o' mine!) about your acceptance of ALL people." Thanks for including us secularists, Tove!) People who've clicked "Attending": 379.
   
2. Protesting the Anti-American Westboro Baptist Church: Fellow DSU denizen Scott Richardson has put up this event. They're bringing American flags. Four attendees so far.
   

Midco Resists Subpoena for Customer Info in Video Piracy Case

Last February, when legislators like Noel Hamiel, Nancy Turbak Berry, and Mitch Fargen (yeah, you, Mitch), threatened to decimate the South Dakota blogosphere with the ill-concieved Blog Control Acts, I offered five counterplans that would better serve the goals of the legislation in protecting citizens from anonymous libel. My first counterplan was to use current law to subpoena service providers like Google and Midco instead of individual bloggers to obtain Web user information in cases of suspected wrongdoing.

I might have overestimated the willingness of Midco to play ball with such a plan:

Midcontinent Communications, an Internet, phone and cable provider in Sioux Falls, is refusing to provide information about an estimated 140 customers who are accused of illegally sharing copies of the film "The Hurt Locker" through peer-to-peer networks.

...The subpoena sent to Midcontinent is asking for the names, addresses, telephone numbers, e-mail addresses and Media Access Control addresses for all the customers whose IP addresses are listed.

...[Midco VP Tom] Simmons also said providing the information would take a lot of work, time and money."We're going to expect some degree of compensation for all of that to jump through all the hoops that they are requiring," he said [Kelly Thurman, "Midco Resists Subpoena in Lawsuit," that Sioux Falls paper, 2010.09.04].

I am pleased to see Midco takes protecting customer information as its default. I am also heartened to see that they are resisting having to act as unpaid police. Midco's resistance to these subpoenas shows one of the major flaws of the thankfully defeated Blog Control Acts: bloggers and nearly anyone at a computer would have had to invest significant amounts of money, time, and study in Internet surveillance and legal advice that would have driven most casual users away from the most free press ever invented.
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Update 2010.09.06: David Newquist differs with me (and with prevailing court opinion) about the responsibility for comment-section libel. He agrees with me, however, on the general quality of comment sections, especially on KELO, as refuges for subliterate ad hominem wretches.

Fundagelical Gut Check: Willing to Extend Political Pulpit Speech to All Non-Profits?

Here's a hypothetical gut check for Gordon Howie, who's still beating the drum for pastors to throw off the oppression of the IRS and endorse political candidates from their pulpits:

I know a number of good people who work at non-profit organizations like the South Dakota Resources Coalition, Dakota Rural Action, the Sierra Club, and Repower America. They all have their principles and political beliefs. They can identify certain political candidates who would support the principles and goals of their organizations if elected. Yet they share with Gordon Howie's church the same 501(c)3 status that, under the infamous Johnson Amendment of 1954, prevents their involvement in political candidates' campaigns.

So I'm just wondering: When Gordon Howie stumps for the First Amendment rights of pastors to endorse conservatives and theocrats from the pulpit, is he also campaigning for the rights of my friends in the non-profit world to endorse candidates who fit their principles, from their "pulpits," on their non-profit time and letterhead?

Goose, gander—discuss.

Flipping the Bird Protected Speech? Not for Public Employees at the Office

I have my occasionally beefs with South Dakota's Public Utilities Commission, but at least they aren't GOP yahoos like their North Dakota counterparts on the Public Service Commission. I learn from Prairie Sun Rising that a PSC employee was allowed to hang two anti-Obama posters in public view in the PSC space in the North Dakota Capitol. One poster mocks President Obama's Nobel Peace Prize; the other features a little girl poutily raising her middle finger and calling the President a seven-letter synonym for anus.

The North Dakota commissioners plead ignorance and say the posters are inappropriate. But the commissioner running for re-election, Kevin Cramer, tries to turn the posters into a First Amendment issue:

Commissioner Kevin Cramer said he agrees the posters were “distasteful” and were “inappropriate” to have in clear view of the hallway. However, he also supports freedom of speech.

“I think of all the places in North Dakota that stand as a symbol of free expression, the state Capitol is the best,” he said [Teri Finneman, "North Dakota Democrats attack PSC for anti-Obama posters," Fargo-Moorhead Forum, 2010.07.07].

I beg to differ. Mocking the President's Nobel award might pass Constitutional muster. But if I go the State Capitol and start flipping people the bird, I'll expect to get thrown out. Heck, I've been fired from a public job for using the above-mention a-word.

The posters are down now, and that's no infringement of the First Amendment, at least in the case of the finger poster. Public employees like me are entitled to speak our minds on political issues, but not with public displays of obscenity in the office.

Democrats Craft Special Exception to Campaign Finance Law for NRA

Can I get a witness? Can I get a Democrat with some guts?

The National Rifle Association sent me a membership card this week (bad data quality management on that mailing list). Just like Wayne LaPierre's lying phone calls, the recruitment letter flings vague and unsupported accusations that hundreds of wild-eyed liberal politicians are coming for my guns.

Reality check: the National Rifle Association is, alas, as powerful as ever. I just learned on NPR's Morning Edition that my dear Congressional Democrats have rewritten a campaign finance bill (the DISCLOSE Act) specifically to exempt the NRA. The Humane Society and AARP also qualify for the exemption, but the AFL-CIO, Chamber of Commerce, and MoveOn.org do not. But the rewrite was intended primarily to keep the NRA from wielding its lobbying clout to block the bill, which responds to this winter's egregious Citizens United Supreme Court ruling by requiring corporations to disclose their funding for political ads.

The DISCLOSE Act isn't even a Second Amendment issue—it's First Amendment!—yet the NRA can wield effective veto power over chicken-hearted Dems, whose Congressional gains have come thanks in large part to recruiting candidates beholden to the gun lobby.

Don't believe the NRA propaganda. Your guns are not in peril. The NRA's DISCLOSE Act exemption shows it can stop legislation at will.

Mundt on Movies: No Friend of Free Expression

SDSU historian John Miller called in to Dakota Midday's conversation with Chuck Raasch about the Dust Bowl yesterday with an interesting story about Karl E. Mundt. Miller recalled that Mundt devoted his first floor speech in the U.S. House of Representatives to decrying a movie, The Plow that Broke the Plains. Mundt felt the movie cast South Dakota in a bad light. He said in 1939 that the Dust Bowl was over, South Dakota was green again, and the film was an inaccurate insult to our state. He worked to get the film pulled from distribution and trumpeted his success in suppressing the film as a big reason to re-elect him in 1940. The public didn't see the film again until 1961.

Now the documentary did include some inaccuracies and apparent skullduggery (or is that skull-movery?). But to bury a film and celebrate that censorship as a victory makes me queasy. Combine denying history with Mundt's Red-hunting and "loyal support" of Joe McCarthy, and you get a picture of a South Dakota politician who'd have fit right into today's media climate... on Fox News.

Senator Mundt also went ape twenty years later over North by Northwest, perceiving some insult in the climactic chase scene on Mount Rushmore and argued the film should be "recalled and corrrected."

I’ve said good things about Madison icon Karl E. Mundt. He’s one of Madison High School’s most prominent alumni and an important part of South Dakota history. He was a good speech teacher and debate coach and helped start the National Forensic League, which is near and dear to my heart. But his support of censorship as a politician call into question his commitment to the First Amendment.

Of course, thank to the Internet, now we can all watch The Plow that Broke the Plains. Here's to you, Senator.

Politics in the Pulpit: New Madville Times Poll!

The good Dr. Blanchard finds my weekend post on Gordon Howie's call for pastors to break the law (or at least sacrifice their churches' tax-exempt status to entreat divine intervention in Howie's doomed candidacy) "interesting, thoughtful, serious, and wrong." The good professor writes a response of at least equivalent worth.

Given this very interesting question of politics from the pulpit, I offer the latest Madville Times poll here in the right sidebar. Forget which candidate is asking for it: very simply, I want to know if you want your pastor or rabbi or other spiritual leader to endorse political candidates from the pulpit.

Put it in personal terms: picture yourself in church. Pastor steps up for the sermon. First words out of his or her mouth, "Today I'm going to tell you why you should vote for ___." How would you feel? What would you say to the pastor afterwards? What would you talk about over coffee in the fellowship hall?

Back to Dr. Blanchard: his effort to equate Martin Luther King to local collared yokels telling parishioners to vote for Gordon fails. King's advocacy of civil disobedience to fight racial discrimination was not "political campaign activity" of the sort forbidden to churches and other non-profits by the IRS rules Gordon Howie wants pastors to violate.

But Dr. Blanchard agrees that Gordon Howie wants pastors to break the law. Dr. Blanchard contends something bigger, that the targeted law is unconstitutional, in that it restricts what the pastor says in his constitutionally protected sermon. I'm inclined to argue allowing endorsements from the pulpit is still an inappropriate use of a pulpit funded in part by tax breaks given to the non-profit organization that makes that pulpit available for sermons.

I could go the other direction though: I could accept Dr. Blanchard's argument, repeal the IRS rules against political campaign intervention, and allow every non-profit organization to use its resources to endorse candidates and advocate for ballot initiatives. Let Jon Lauck solicit donations for his boss Senator Thune's campaign fund at his MAAC Chautauqua event tonight. Let MAAC solicit Democratic campaign volunteers and sublease their office as local Dems HQ this fall (since Dems are the big arts supporters around here, anyway!). Let the Children's Home Society hand out Daugaard flyers at their fundraisers.

Anyone have a problem with that? Is there any problem with letting tax-exempt organizations take advantage of their government-subsidized status to advocate for who serves in government?

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Update 10:42 CDT: More knowledge from the north: citing James Madison and Roger Williams, Dr. Newquist says keep that wall of separation high.

Gordon Howie Tells Pastors to Break Law for His Political Gain

Gordon Howie really is the candidate of secession and lawlessness. Howie is urging pastors to break the law. Howie wants pastors to violate the rules of their non-profit status and endorse him in front of their congregations.

So do you want your pastor taking time in the sermon to tell you for whom to vote? That's what you may get in the sermon at Bighorn Canyon Community Church in Rapid City, where Pastor Scott Craig is a big Howie supporter:

Craig said the tax law is sometimes touted as protecting the separation of church and state, but it instead involves government telling churches what to do. He said he is not worried that his nondenominational church could lose its tax-exempt status.

An IRS publication says the law does not prevent pastors from expressing their political views as individuals, but they cannot do so on behalf of their church or at an official church function [Chet Brokaw, "Rapid City candidate for governor urges pastors to endorse candidates," AP via Rapid City Journal, 2010.05.15].

Craig's comment is a mistaken interpretation of separation of church and state. There are all sorts of laws where government tells churches and every other organization what it cannot do. Do Candidate Howie and Pastor Craig want to repeal the laws that block pastors from performing polygamous weddings and human sacrifice as well? And those damnable child abuse laws sure crimp the style of priests who dig altar boys.

The free-speech argument is bogus, and Howie and Craig know it. Pastors are still perfectly free to express their political views outside of church. They just don't get to take advantage of their position, their pulpit, their captive audience, and their non-profit status to spread those views. It's the same for teachers: I'm free to endorse Scott Heidepriem and deride Gordon Howie here on the blog, but if I engage in that advocacy on the job, in front of a classroom of voting college students, you will (and should!) freak out. An educator using his position to promote a specific political agenda on the job is unacceptable (unless you're endorsing a Republican in this state, of course).

Besides, Pastor Craig still has the right to endorse Howie from his pulpit tomorrow morning; he's just not willing to give up his tax-exempt status. He wants special treatment from the government, but he doesn't want any rules accompanying that special treatment. How selfish. How childish. How politically cynical.

This isn't Martin Luther King's advocating civil disobedience to win civil rights for an oppressed minority; this is Gordon Howie's desperate attempt to increase his vote count. He knows he can't win on practical policy issues: Dennis Daugaard, Dave Knudson, and Scott Munsterman all three can wipe the floor with him when talking about issues that actually matter. Howie thus persists in his strategy of manufacturing culture-war non-issues that won't do a thing to balance our state budget, create jobs, or fix roads.

So there's your choice, Republicans: a candidate who tells his supporters to break the law, or reasonable men who concentrate on plans for governing.

Blogs Are Press, Can Protect Anonymous Sources, Says NH Court

Before the 2011 Legislature takes another swing at the Blog Control Acts, they'll want to review the latest ruling from the New Hampshire Supreme Court, which agrees with me and Aaron Barlow that freedom of the press applies to blogs and websites just as well as the traditional press:

In a First Amendment case that had big implications for the future of online journalism, the New Hampshire Supreme Court said freedom of the press is a fundamental right that extends beyond newspapers and periodicals to any kind of publication that serves as a vehicle for information and opinion.

For the first time, New Hampshire’s high court set a precedent for deciding whether websites can be forced to release the identity of online commenters. It instructed lower courts to weigh the media’s right to protect sources more heavily than the plaintiff’s concerns in lawsuits over defamatory comments made online. Similar precedents have been set in other states [Ashley Smith, "Court Backs Website on Free Speech," Nashua Telegraph, 2010.05.07].

The ruling addresses a case that covers exactly the situation South Dakota's legislators wanted to regulate: a pseudonymous blog commenter accused a mortgage company president of fraud, and the company demanded the website identify the commenter. The high court's ruling does not give nameless commenters free rein, but it does say the mortgage company doesn't get free rein to prosecute perceived defamation. New Hampshire's supremes have told the lower court to reconsider the case, this time viewing the website as a member of the press with full First Amendment right to protect the identity of its anonymous sources.

When the Founding Fathers used the word press, they weren't thinking of professional reporters and publishers pretending to objectivity. They were thinking of pamphleteers and other rabble-rousers like Thomas Paine and Alexander Hamilton who got hold of a press and published their arguments.

If you're reading this, you have a press at your fingertips. Just like government, the press is us. Use it wisely.

Praise the Lord! Judge Rules National Day of Prayer Unconstitutional!

Stovepipe hat tip to Pastor Steve Hickey!

First Amendment lovers, exult! In a ruling that protects people of all faiths and people of no faith from government intrusion on their conscience, U.S. District Judge Barbara Crabb has ruled the statute establishing the National Day of Prayer unconstitutional.

It's this simple:

Recognizing the importance of prayer to many people does not mean the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge, or practice rune magic [Judge Barbara Crabb, quoted by Warren Richey, "Federal Judge: National Day of Prayer Unconstitutional," Christian Science Monitor, 2010.04.15].

I'm eager to read the full 66-page ruling; if you want to beat me to it, here's the PDF link!

I humbly suggest that any religion that needs official state approval is a pretty weak religion. This ruling won't stop folks from gathering around our courthouse flagpole to pray for rain or Barack Obama, but it does affirm that the county commission's (and Congress's) only role in gatherings like the National Day of Prayer is to provide and protect the public spaces that we all may share to express our varied beliefs... assuming we feel the need to publicly demonstrate our piety.

Oh, and don't forget: Jim Dobson's wife Shirley is no longer a defendant in this case. President Barack Hussein Obama is. His Justice Department is considering an appeal to fight for the National Day of Prayer. Judge Barbara Crabb was appointed to the federal bench by President Carter.

Huffington: "Internet Is Growing Up," Anonymity Losing Favor

The trend against anonymity isn't just a phenomenon of the South Dakota blogosphere. The New York Times reports that a number of national news sites are retooling their public comment policies to favor folks willing to put their names to their words. Among the big sites moving toward more nymity: the New York Times, the Washington Post, and the Huffington Post:

The Huffington Post soon will announce changes, including ranking commenters based in part on how well other readers know and trust their writing.

“Anonymity is just the way things are done. It’s an accepted part of the Internet, but there’s no question that people hide behind anonymity to make vile or controversial comments,” said Arianna Huffington, a founder of The Huffington Post. “I feel that this is almost like an education process. As the rules of the road are changing and the Internet is growing up, the trend is away from anonymity” [Richard Pérez-Peña, "News Sites Rethink Anonymous Online Comments," New York Times, 2010.04.12]

Huffington is saying much the same thing I told Rep. Noel Hamiel in February when he and some other South Dakota legislators who aren't terribly well-informed about the Internet floated the Blog Control Acts.

We don't need to rely on a mostly Republican Legislature to impose more regulations on anonymous speech. We are experiencing—excuse me, we Web participants are driving—the natural cultural evolution of the greatest communications medium ever invented. The first twenty years of the Internet have certainly brought our share of surprises, excesses, and mistakes... as did, I suspect, the first twenty years of fire. We learned to roast wildebeest without burning down the cave; we'll learn to communicate online with sincerity, courage... and maybe even intelligent commitment to the good of society.

GoDaddy Joins Google in Resisting China Censorship

I buy domain names from GoDaddy.com. I have my misgivings about their objectification of women in advertising, but they've also provided reliable web service at a decent price.

GoDaddy is demonstrating admirable virtue in their dealings with China. In response to China's new invasive identification requirements for all individuals pruchasing domain names, GoDaddy just announced it will no longer register domain names in China. GoDaddy notes that the Chinese government was retroactively requesting additional information on existing domain registrants. GoDaddy general Counsel Christine N. Jones says the company has also seen an increased number of attacks on Chinese customer sites that carry content on the Tiananmen Square massacre, human rights, and other topic Beijing finds objectionable.

Worth keeping in the file for next year if South Dakota legislators resurrect the Blog Control Acts:

Arvind Ganesan, business and human rights director at Human Rights Watch, said China's new rules are yet another example of the country tightening its censorship policies and undermining the ability of U.S. companies to operate freely.

"The underlying intent is, if you're engaging in political speech, we want to know who's engaging in it and what Web site is behind it," Ganesan said. "This is a way the Chinese government can send a chilling message to people that they shouldn't speak freely online. It's forcing us companies to be both the censor and the spy on behalf of the Chinese government."

..."We decided we didn't want to be agents of China," [Jones] said [Ellen Nakashima and Cecilia Kang, "In response to new rules, GoDaddy to stop registering domain names in China," Washington Post, 2010.03.25, p. A13].

GoDaddy and Google appear willing to stand up to China on freedom of expression. I look forward to seeing whether this private economic sanctions effort wins more support and effects change in China.

Online Liability and the End of the Web as We Know It

I'd like to believe further commentary on House Bills 1277 and 1278 is now just postscript... but as Mr. Powers warns us, the fight for free speech online in South Dakota has only just begun.

So as we brace for whatever controls the South Dakota Legislature tries to impose on the blogosphere next, let's see what Google says about an alarming judicial ruling in Italy [cross-posted from my DSU blog].

Yesterday a Milan judge convicted three of four Google executives charged with violations of Italy's privacy code. In 2006, some punks posted a video of themselves bullying an autistic kid. Google removed the video when notified by Italian police, but the court still pressed charges against the Google employees. The Google guys got out of defamation charges, but Google says the convictions establish a criminal liability for Internet providers that could destroy the Web:

Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear [Matt Sucherman, "Serious Threat to the Web in Italy," Google Blog, 2010.02.24].

Google is appealing the convictions.

Legislative Notes: Curd vs. Noem on Small Schools

Of interest to small-town voters: The South Dakota House yesterday passed HB 1150 on a 40–29 vote. Compare the votes of two of our Republican candidates for U.S. House: big-city doctor R. Blake Curd votes aye, while small-town ranch gal Kristi Noem votes nay.

Dr. R. Blake Curd evidently feels it's perfectly acceptable to punish small schools for their success in attracting open enrollees. Evidently supporting school choice isn't a big issue for this conservative. Noem apparently feels we can find budget savings for the state somewhere other than on the backs of successful school districts.

Locally, District 8 Reps. Mitch Fargen and Gerry Lange joined Noem in voting against HB 1150. Let's see where our senator Russell Olson goes on this school-choice issue.

In other news from the Legislature yesterday:

• HB 1222, the farmers market bill, got unanimous support from the House (yay!).
• SB 21, a rather mushy bill that sort of bans social investing with the state investment funds and sort of doesn't, passed the State Senate unanimously. The more direct SB 134, stopping state investment in Iran, has passed the Senate and awaits attention from House State Affairs.
• Even deferred to the 41st day does not mean dead! Senate Appropriations resurrected SB 193, the pro-life bill that would extend Medicaid to all pregnant women. Alas, they made that effort just to give the bill a formal "Do Not Pass" recommendation.
• Oh yeah, and HB 1277 & HB 1278, those silly little anti-blogger bills, went nowhere in committee. Thank you, Mr. Powers, for your testimony. And thank you, members of the committee, for your rationality. Now, back to the counterplans....
  

Blog Control Act: Is Five Counterplans Enough?

A few days ago, Blog Control Acts sponsor Rep. Noel Hamiel asked me how I would address the problem of anonymous libel. His question seemed to echo Mr. Epp's approach to the debate, suggesting that coming up with a plan, no matter how bad, is a sort of price of admission to the debate.

I reject the apparent premise. The point here is that House Bills 1277 and 1278 are bad legislation that should be killed in committee (tomorrow, Monday, 7:45 a.m.). The absence of a plan does not justify carrying out a destructive plan.

Nonetheless, I took up Rep. Hamiel's challenge. If you really think anonymous online libel is a problem (and I'm still waiting for examples of online speech of any sort that has done actual damage in South Dakota or libel cases in South Dakota that have been stymied by comment anonymity), here are five counterplans to challenge anonymous libel:

1. Use current law to subpoena the service providers (Google, Midco, etc.) for identifying information in investigations of illegal activity. Those companies are the real experts in tracing online traffic, not the hobby bloggers who may not even know what an IP is. Those companies are also better equipped to check frivolous lawsuits and protect legitimate anonymous speech with their experienced legal departments.
   
2. Let the Internet police itself. Bloggers are citizens and neighbors like everyone else. We can craft our own policies to prevent anonymous cowards from spreading rumors. Our readers can talk with us. If we see wrong has been done, we can try pointing aggrieved parties toward libellers, and they may be able to resolve their differences face to face, with no cops, no courts, no lasting harm done.
   
3. Accept a cultural, not legislative solution. The Web is new. We've never had this much free speech power, especially not free speech so dissociated from our identity. People need time to develop the "media literacy" necessary to properly filter, interpret, and respond to all this online speech. They're doing that: they're already recognizing that anonymous claims aren't as substantive as claims with names. That's what I teach kids in my speech classes. That's what the high school debaters I judge every weekend practice with their evidence. People are already learning that there's a difference between the speech of people like Pat Powers, Todd Epp, and me who speak by name and the cowardly rabble who fling unsupported insults. Let the culture continue its evolution toward healthy, responsible speech.
   
4. Support a media literacy campaign: make available funding and materials to encourage K-12 and university teachers to cover Internet etiquette, legal issues, and other relevant topics in their language arts and communications classes.
5. Support an anti-anonymous defamation campaign: run ads telling people to be neighborly online and reminding them libel is libel, even online, with severe penalties. (Maybe even throw in Jesse Jackson, exhorting people to "Be Somebody!" and use their names online.)
   

I don't know if any of the above proposals would reduce online anonymous defamation. But each one of them is better than HB 1277 and 1278, since not one of them creates the unconstitutional chilling effect on named speech or the overly vague legal liability that those bills do.

Further counterplans are welcome. But doing nothing is still better than imposing the active harm of the Blog Control Acts.

Feel free to share the above with the members of the House State Affairs Committee, including U.S. House candidate Kristi Noem, who get the first chance to kill HB 1277 and 1278 tomorrow morning at the 7:45 a.m. hearing.

Blog Control Acts Hearing Monday, Feb 22, 7:45 a.m.

House State Affairs is getting in gear on the Hamiel-Turbak Berry Blog Control Acts. HB 1277 and 1278 are on the committee agenda for first thing Monday morning, February 22, at 7:45 a.m. in room 414 of the State Capitol.

I have to teach here in Madison at 10 a.m., so I'm unable to make the road trip. But I have contacted bill sponsors Rep. Hamiel and Sen. Turbak Berry directly, as well as a number of House State Affairs reps. Bloggers, this weekend is the time to catch up with contacting the rest of the committee and telling them these bills do no good and much harm. If your legislators need further explanation, send them this list of readings (and more recent text from me here).

Contact your legislators, and let's see these bad bills voted down!

Anonymity and Legal Liability: Under Blog Control Act, Only Lawyers Will Blog

Amidst the hullaballo about South Dakota's proposed Blog Control Acts, Cap Journal cool cat David Montgomery points us toward some civil discussion in the Chicago Tribune of anonymity and the Internet. The article views the tracing of identity online as easier than we all think; however, requiring every person who allows Internet posts to collect and archive such information creates an ugly tangle of legal liability.

Some significant quotes from the Tribune report:

If people … are afraid that some editor is going to look behind the administrative interface, then (they) won't come and talk on the site, and they certainly won't be as willing to talk about controversial topics," said David Ardia, director of Harvard Law School's Citizen Media Law Project [Georgia Garvey and William Lee, "Anonymity Is No Guarantee in Online Postings," Chicago Tribune, 2010.02.14].

In other words, chilling effect, the kind of thing that gets laws overturned on First Amendment grounds.

Flax says the Tribune has been subpoenaed more than once for information about anonymous posters, including civil cases where people felt they had been defamed and criminal cases where someone may have witnessed a crime.

"We would always try to give time to let the poster go (to court) and quash" the subpoena, Flax said. There may also be instances where the news organization determines the commenter was acting as a news source and the company could elect to fight to protect the person's privacy, she said [Garvey and Lee, 2010].

There's another legal complication for bloggers. Suppose someone leaves a nasty comment on my blog. An offended party drags me to court under HB 1277 to get the commenter's identity. Do I have a legal obligation to contact the commenter myself first to alert them to the court action and give the commenter a chance to quash the subpoena? There's another question I can't afford to pay a lawyer to figure out for me... and another liability that might make regular citizens decide blogging is more trouble than it's worth.

HB 1277 and HB 1278 are so vaguely written and leave so many questions about legal liability up in the air that, if I didn't know better, I'd think lawyers wrote them just so that no one but lawyers would dare to blog.

Heartland GM Says Blog Control Act Stinks

Heartland GM Mike McDowell and I disagree on various issues. But we seem to be on the same page when it comes to the Blog Control Acts. Twitters Mike on Wednesday:

Some SD legislators have introduced bills that would have an effect of imposing what amounts to data mining on blogs and other social media.

The bill's sponsors ought be sent back to 8th grade government class and required to read and then prove they understand our Bill of Rights.

These type of know nothing legislative proposals give the vast majority of hard working state legislators a bad name.

I hope Mike will pass these comments on to his employee, Senator Russell Olson (R-8/Madison).

Blog Control Act Supporter Advocates Toothless Law?

Todd Epp, author of one half of the South Dakota Blog Control Acts, tells KELO that bloggers actually won't have to comply with his HB 1277:

If passed, the bill would require bloggers, when asked, to turn over any information that would identify anonymous posters. That is, if they keep information like IP addresses or email accounts.

"If they don't have it, they just tell the court, 'I don't have it.' End of story. If they do have it, like anyone in a civil case that has evidence, they're required to provide it," Epp said [Shawn Neistadt, "Proposal to Tame Anonymous, Hurtful Postings," KELOLand.com, 2010.02.12].

So a lawyer working very hard to help certain legislators pass a law tells us his law can be easily circumvented, by turning off or deleting our site stats.

This same lawyer tells a mainstream media outlet that the Internet is now a "mature" medium and should follow "similar rules" as the mainstream media (sounding familiar...). This mainstream media outlet interviews no one but this lawyer on this topic.

So to review: the other side's lawyer is telling us the law his side wants won't really affect us. The other side's lawyer also gets special attention from the corporate media that stands to benefit from increased restrictions on its new media competitors.

Am I the only person feeling suspicious?

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Meanwhile, Italy is backing away from some Internet restrictions. Italian legislator Alessio Butti recognizes that "Blogs with amateur videos, online newspapers, search engines and the online versions of magazines are free, and editorial responsibility does not fall on providers who host content generated by others." An Italian judge ruled last year that IP addresses are "not sufficient to establish the identity of an infringer or liability of a defendant. (read more here... in Italian!).

Hey, if cannoli can kill the kolache bill, Italian legal thinking can help kill the Blog Control Acts.

American judges are also recognizing that even professional network administrators at a major university can't provide sufficiently identifying information about users in its IP logs. Todd's more right than he realizes: the courts won't be able to get anyone to comply with HB 1277.