Some blogs have gone into a state of hyper-hysteria because a bill has been introduced into the South Dakota legislature which would provide that the names of people who post or comment on blogs can be revealed by court order if their statements are involved in a defamation lawsuit. Like Chicken Little squawking that the sky is falling, they are screaming that the First Amendment as it applies to freedom of speech is under attack.
Actually, the bill would simply bring Internet publications under the rules that the legacy media have operated under for a century and half or more. Defamation laws, which followed British precedents, began to develop long before the American Revolution. During the 1830s, as a way to eliminate the customs of dueling and feuding as means of recourse over slanders and insults, the states began to formulate bodies of law through which people could seek remedies if something untrue and damaging was said about them. Newspapers were particular targets of defamation lawsuits, whether they were the originators or the purveyors of defamatory statements.
The addition to South Dakota's defamation law sponsored by Rep. Noel Hamiel, R-Mitchell, a former newspaper publisher, and Sen. Nancy Turbak-Berry, D-Watertown, an attorney who has sponsored open records legislation, address the stipulation that Congress may make no law "abridging the freedom of speech, or of the press." This First Amendment clause applies to the states through the extensions contained in the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Congress and state legislatures may make no law that limits freedom of speech or of the press through prior restraint, but they are also bound to protect the rights of citizens through equal protection of the law. And that means that people whose rights are violated shall be provided with means of recourse, such as in the right to sue for defamations that are false and damaging.
While prior restraint on freedom of speech is clearly prohibited, there is nothing in the First Amendment that suggests people should not be held responsible for abuses of free speech. Bloggers are supported by some judges in their contention that being held responsible for defamation infringes on free speech. On the other hand, the preponderance of legal opinion finds a parallel in applying the Second Amendment and the right to bear arms. While the right to bear arms is upheld, laws against armed assault and murder are not considered an infringement of that right.
We are headed for a Constitutional showdown. The Internet, particularly blogs and their commenters, is the motivation. Recent interpretations of the First Amendment by the Supreme Court have allowed free speech to nullify what have been regarded as inherent, unalienable rights.
The South Dakota Constitution is in direct conflict with the recent interpretations of the First Amendment. Here is the pertinent article:
§ 5. Freedom of speech--Truth as defense--Jury trial. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.
The question about the proposed legislation is if any action regarding defamatory statements is even possible under current law. The legislation might at least force the repeal of slander and libel laws and remove from state legal codes the suggestion that there are any protections against defamation.
Bloggers are protesting this proposed legislation, contending that having to take responsibility for libelous statements that appear on their blogs is an infringement of free speech.
The underlined part of article 5, "being responsible for the abuse of that right," is the part that is nullified by recent court decisions. The South Dakota Constitution article is implemented by state law:
20-11-1. Obligation to refrain from defamation. Every person is obligated to refrain from infringing upon the right of others not to be defamed.
State law conceives that freedom from defamation is a right, presumably an inherent, unalienable right. Until recently, the right not to be defamed was the premise on which laws governing slander and libel were constructed. But the recent court rulings have nullified that right by making any speech, particularly political speech, protected by the First Amendment. What the Supreme Court has still to address is whether freedom from defamation is, in fact a right. If so, is it covered under the Ninth Amendment?
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
As it stands now, the right not to be defamed is suspended, perhaps nullified. Slander and libel laws are useless, vestigial appendages from another time. According to recent Supreme Court rulings, remedies against slander and libel chill free speech.
Many journalistic organizations and civil rights advocates are pushing to settle the conflict. Lawyers are confronted with cases of libel that clearly have damaged people, but advise that there is no point in atttemptng redress because current case law and precedent views any such actions as an infringement on free speech.
The law proposed in South Dakota addresses the matter of anonymous comments. It would hold the proprietors of blogs responsible for comments that are defamatory and enable plaintiffs to obtain the names of commenters if the court so orders. That means that bloggers would have to find a way to establish the identity of commenters.
This is something that newspapers have done regarding letters to the editor. A newspaper can be held liable as party to a lawsuit if it prints a letter that contains defamatory statements. Consequently, letters-to-the-editor received the same editorial scrutiny as news stories. About 90 percent of the libel complaints arise from reporting on police and court actions. Experienced reporters write these up with great care to include the reasons for arrests and court actions to insure that readers understand what is allegation and what is eventually deteremined by courts. Letters to the editor often involve comments on public officials and public figures. Case law has established a wide latitude in the nature of comments that can be made about them over what can be said about a private person. However, the real issue deals with when matters of opinion verge into statements of fact.
The traditional standard for determining libel was comparatively simply. A defaming statement had to be shown to be damaging and to be untrue. It was considered damaging if it was uttered in malice. And malice was considered present if the utterer knew it to be untrue or uttered it in disregard of whether it was true or not. When it came to letters, the policy was to require them to be signed, so that the editors could determine their authenticity. And they were fact-checked and edited to avoid any possibility of libel. Many, many letters were rejected because they did not pass those tests.
Few bloggers have the time, willingness, or knowledge to subject comments on their blogs to such scrutiny. In fact, a number of South Dakota bloggers regularly post libelous statements themselves, although in most cases they probably do not know they have crossed the line from scurrility into defamation.
The real issue raised by the Hamiel-Turbak-Berry bill is the matter of whether anonymity is protected along with free speech. Newspapers, until they allowed comments and discussion boards, required letters to be signed. The Supreme Court has addressed the issue coming down on the side of anonymous free speech. In one such case involving anonymous leaflets, Justice Scalia dissented, stating he could "imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity."
What defenders of anonymity promote is freedom to defame without accountability, not merely freedom of speech. And being held accountable and required to prove factual contentions runs counter to the entire moral stature of the blogosphere, which is fed on malice, gossip, and ignorance.
Blogs blithely practice ad hominem attacks under the name of political speech. Defamation and character assassination ruin lives. Just as vandals get their sense of power from what they can destroy, so do defamers.
If the Hamiel-Turbak-Berry bill is to work, it will have to be accompanied by further revision in the state defamation code to clarify when libel is actionable and to establish financial compensation and penalties that make the anti-defamation law something more than a superfluous legal posture.
And, of course, such a bill would have to anticipate a Supreme Court test.