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Thursday, October 28, 2010

The Breitbart Syndrome and rule by defamation

A blogger, in conjunction with the political party for which he is an "operator," posted an item about a political candidate, Clark Schmidtke in District 8, that led to some disclosures about the candidate's involvement with the criminal courts.  The original post was based upon speculations and implications drawn from some hearing minutes of legal agencies in Minnesota.  It did not bother to establish whether the identity of the subject of those hearings was in fact the candidate, nor did it publish the complete information about the disposition of the matters dealt with in those hearings.  Cory Heidelberger at Madville Times contacted the candidate and obtained further documents and the candidates' account of court proceedings in which the candidate was involved. 

Cory Heidelberger has done a service in behalf of decency in pursuing this story and removing it from the realm of speculation and implication and placing it in the world of documented facts.  Urging Mr. Schmidtke to clarify this matter and providing him a place to do so is one of the, unfortunately, rare instances of integrity and good purpose in the South Dakota political blogosphere.

He performed an obligation and responsibility that should rightfully have been assumed by the blog and its perpetrators that initiated this story without any qualifying facts or with any certainty as to the identity of the subject.  Those omissions display pure malice.  And the cast of the Libel Follies obliged us with an encore performance in comments on Cory's  blog.  

Mr. Schmidtke, the candidate who is the subject of the posts, certainly must have considered that a candidacy for public office would involve an examination of his past.  A part of the function of political parties is to examine and evaluate candidates' backgrounds before they are allowed to bear the party banner.  I assume that is why Mr. Schmidtke is running as an "independent Democrat."  That system seems not to be working in South Dakota where candidates with eighteen traffic-related arrests have the unqualified support of their party.  When violations of that magnitude in number occur with persistence over a long period of time, they signify matters of character and attitude, and they cannot be dismissed as youthful indiscretions.

  Mr. Schmidtke's problems with the court raises an issue about equal protection of the law that the advent of blogs has made unsettled.  The blog that initiated the inquiry into his past has accrued a history of libels that parallels the long histories of flouting the  laws of those candidates for office.  It publishes absurd and petty rumors, charges--often false--of wrong doing that omit mitigating aspects without any attempt at verification or accuracy.  And it does this with the full complicity of the SD GOP.  It publishes its own evidence of that complicity by showing the sources of its alleged information and by the frequency with it attempts malign attacks.    For people who value freedom of speech, it is alarming and dismaying to see that freedom so maliciously and obscenely abused.

We have laws that ostensibly establish a principle against wanton defamation: "Every person is obligated to refrain from infringing upon the right of others not to be defamed."  ('SDCL chapt. 20)   And the law provides a definition of libel and its effects:  "Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."

Furthermore, the state constitution states the conditions under which truth relieves the responsibility for libel:  "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."

As old journalists can attest, the threat of lawsuits has been the driving force behind adherence to slander and libel laws.  Since the coming of the Internet, changes have been made in the application of libel law.  One problem is that lawsuits, as Mr. Schmidtke relates, can be terribly expensive so that individuals cannot afford protection of the law, and blog libelers tend not to have the financial standing to make recovery of damages possible.  When they are allied with a political organization, however, such recovery becomes more  possible.  Another problem is that case law sets the parameters for interpretation of the law.  Some states have better, more specific precedents than others.  South Dakota is in libel limbo.  

During the last legislative session,an attempt was made to bolster the right not to be defamed, but the question of ultimate responsibility was difficult.  And the proposed law did not address accessibility to the protections of current law.  For those interested in protecting both freedom of speech and the right not to be defamed, it is clear that political action is probably not the route to follow.  With the laws already in place, it will probably be more effective to expend organizing and fund-raising energies on obtaining precedents which provide clearer definitions and affordable accessibility to the law.  We have some perfect storms of libel that have swept across the Internet in the last six years to examine toward that end.

Expect some developments in this regard after the election.  People of good will and good purpose do not wish to live in a political climate that becomes geared to  malevolence and the degradation of the community from malicious and generally untrue gossip.  There are people, both victims and perpetrators, who deserve their day in court. 


caheidelberger said...

I appreciate your attention to this matter, Dr. Newquist. It's not been an easy story to write, and I'm still trying to figure out exactly how the whole thing should affect my vote next week. As you have often noted, the blogosphere does not lend itself easily to thoughtful consideration. But let's keep trying.

Thad Wasson said...

I want to commend CAH and his work on his blog. To contact, type and expose the past history of this candidate in such a short amount of time is remarkable.

PP said...

And once again, I challenge the assertion that *any* organization, political or otherwise, pointed out the information on Clark Schmidtke's potential run-ins with the law.

But, God forbid that Dave practice what he preaches.

David Newquist said...

I respond to the challenge in the post

PP said...

And it's a failed challenge filled with your usual wind and blather.

I print SDGOP press releases? No shit, Sherlock. So do several SD blogs. Badlands blue prints Democrat press releases. I guess it's all one big conspiracy.

You still have failed to prove that the SDGOP had anything to do with the information out there on Clark Schmidtke.

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