News, notes, and observations from the James River Valley in northern South Dakota with special attention to reviewing the performance of the media--old and new. E-Mail to

Sunday, February 7, 2010

An identity crisis

I do not know if the proposed amendments and additions to South Dakota's defamation laws are good legislation or not, at this point.  (HB 1277 and HB 1278.)  The bills have just been introduced with a first reading in the state legislature and have not gone through the committee hearings and any of the legislative process (sausage-making, if you can stand to read that cliche one more time) during which the sponsors explain their rationale and legislators get a chance to refine, approve, or reject them.

The obvious point of these bills is to give people who have been defamed a means of  recourse.  And the right not to be defamed is cited as a basic right in all state codes of rights and personal responsibilities. Protesters  of this proposed legislation are claiming that these laws are an infringement of First Amendment rights.  They seem unable or unwilling to consider that some First Amendment rights are in conflict with basic, unalienable human rights, and that any person or organization that presumes to publish or broadcast for public consumption has obligations to protect rights as well as the freedom to exercise them.

As defamation law exists now in relation to legacy media, legal action can be taken against the entity whose publication or broadcasts contain defamatory materials.  When defamation actions are taken, the publishing medium is included in the lawsuit.  If the originators of the defamatory statements are known, they will be included, too, but legal precedent places the onus on the publisher of the comments.

Bloggers are protesting the proposed legislation on the grounds that it would force them to snitch on anonymous commenters.  The legislation is attempting to supply a means whereby the originators of defamatory material can be identified and included in any lawsuits.  The legislation might be improved by stating that Internet media, such as blogs, is subject to the same laws of publication as the legacy media is. It might further be strengthened by  specifying that the collection of damages can be under the same provisions for restitution and compensation   that are used in cases of accidents caused by negligence and disregard and damage caused by vandalism, juveniles included.    Those found guilty of defamation would be allowed to make restitution and reparations through monthly   payments through the court.  Under these provisions, bloggers would not have to worry about supplying means of identification of commenters.  They would have to be concerned about what is said on the web pages and blogs over which they have control.  Such provisions would include discussion boards and comment threads operated by the legacy media, who also seem to think that the interactive aspects of internet media exempt them from the rules they follow in their print and broadcast formats.

News managing and news writing and editing have been significantly shaped by the need to protect the rights of people by avoiding libel.  Every news style manual has a section on libel and how to write and edit to avoid it.  The Associated Press style book is called The Associated Press Stylebook and Libel Manual.  Bloggers want to be accorded the same status as professional journalists.  Instead of specifying means for courts to order revelation of the identities of blog commenters, the legislation might well extend the provisions of existing media law to internet pages and blogs.

Bloggers want the status but none of the  responsibility borne by the legacy media.  That is incredible.  Incredible nonsense. They define themselves in the court of public opinion as deserving of the protected status that juveniles have in the court of law.

On three blog posts on this proposed legislation, writers have explained why anonymous comments should be protected.  Prof. Ken Blanchard provides a typical rationale:

....there are good reasons for protecting the anonymity of internet interlocutors.  It means that one can post his or her opinion freely without fearing reprisal from those who vehemently disagree or without having to explain oneself to one’s family, or neighbors, or other members of a church.  This is exactly the same reason we go to great lengths to protect the secret ballot.

Dayamn.  The concept behind the First Amendment is to encourage and permit robust dialogue.  With anonymous speech, there is no dialogue.  A verbal missile is thrown and there is no one there to throw it back to or hold accountable.  And anonymous speech frustrates that part of the State Constitution, which appears in other state constitutions, too:  Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.   If anonymous speech is protected, to whom will the anonymous speakers be accountable?

The idea that holding people accountable for their words chills open discussion is nonsense.  It destroys open discussion.  The First Amendment was not conceived as a protection of cowardice and insidiousness.  Those speakers who fear responses to their words and wish to throw missiles and cower behind a mangled First Amendment,  we cite another cliche: if you can't stand the heat, stay out of the kitchen.  Or in the language of the blogosphere,  if you can't take responsibility for your words,
just STFU.  Communication involves a message from a sender to a receiver and back again.  An interpretation of the First Amendment that protects anonymous speech is an interpretation that subverts the whole idea of robust dialogue.

The First Amendment is under attack.  Not by those who wish to suppress free speech, but by those who want to abuse and pervert it.  This week a case is going to the Supreme Court which contends that lying is a form of free speech that is protected by the First Amendment.  The case involves men who fraudulently claimed and wore military medals for heroism.  Another case involves a nurse who wrote an anonymous letter to a medical board citing a doctor for malpractice. The nurse was revealed when a sheriff confiscated her hospital computer and found the message on it.

The idea that any provisions that  provide integrity  and accountability to free speech chills it is one that, if enforced, can only degrade the language and render it useless.  But the Internet has brought us to an age of insidious scurrility and cowardice.  The old song lyric is being changed to "Land of free speech and home of the coward."  And as the language fails, so goes the nation. 



發言 said...


Douglas said...

"Another case involves a nurse who wrote an anonymous letter to a medical board citing a doctor for malpractice. The nurse was revealed when a sheriff confiscated her hospital computer and found the message on it."

That case involves misuse of supposedly protected information not libel or slander. The sheriff is a good friend of the doctor. The data the nurse provided to state authorities was making proper use of the information. That at least according to NPR with comments from the state agency included.

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Muhammed Sekertekin said...

is this even legal ? i wonder what will happen to the persons involve i hope shes O.K muhammed sekertekin

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