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 MinneKota@gmail.com

Sunday, February 28, 2010

Where will the professors go?

Jonathan R. Cole, former provost of Columbia University, has a new book on the history of the Ameican University,  The Great American University.  While the 616-page book does a cogent and comprehensive job of outlining the history of the American university and the role it has played in the development of the nation,  it also poses some incisive questions about the future of the university--and, therefore, our nation.

The  book notes the formation of American universities in colonial and early federalist times,  but cites the important historical events that gave them their unique identity and made them a driving force in American life:

  • The Land Grant College  (Morrell) Act of 1862:  At the height of the Civil War, Congress voted the authorization and support for the provisions that would initiate and implement the formation of our public college and university system.
  • Hitler's and Franklin Roosevelt's assumption of power in 1933:  Up until this time, German universities led the world, but as Hitler came to power, professors, such as Einstein,  realized that their institutions would come under the dictates of the Nazi state and began their migration to other countries,   a migration was of huge benefit to U.S. universities.
  • The end of World War II in 1945:  the G.I. Bill brought a strong and ambitious student population to the campuses and the work of scholars in the war effort motivated Congress to channel research funding through the American universities,  a move which moved them to the head of the world class. 
Cole points out that the list of the world's best universities are dominated by American institutions, with other countries lagging far behind.  However, he also points out that other countries are moving aggressively to bring their institutions into contention and to surpass the American higher education system.  In a discussion of his book with other academic leaders on C-Span, Cole warned that American pre-eminence in higher education is vulnerable. 

Cole cites the politicization of colleges and universities through repressive legislation and politics-based personnel decisions as suppressions of the academic freedom and neutrality that has been the life-blood of their success.  As examples, he lists the political intrusion into some areas of research, such as stem cells, and features of the Patriot Act, which restrict some of the most promising students and researchers from being enrolled or given work visas, as limiting America's one area where its exports exceed its imports:  higher education. 

Just as the professors in Germany  in 1933 migrated to countries where they could conduct their work without interference,  American professors are looking for places they can go to continue unfettered in their research and teaching. 

The renewal of the Patriot Act without significant revisions does not signal a bright future for American universities.  Ironically, two of my acquaintances in American universities are negotiating terms with German institutions.  

The countries doing the heaviest recruiting of American professors are China, India, Russia, and a number of European countries.

What goes around does seem to come around.

Sunday, February 21, 2010

Life, liberty, and pursuit of defamation

The bills before the State Legislature to provide for access to the identities of  anonymous blog commenters by court order if the comments are involved in legal actions will have their committee hearings early Monday morning.  These bills have managed to tie galling granny knots in the blogging community's thongwear. 

 In questioning the rationale behind the opposition to these amendments to the South Dakota defamation law,  called by Cory Heidelberger and other bloggers the Blog Control Act, I am trying to understand how the astounding inequalities of justice under the current state of defamation law are justified.  The proposed bills before the legislature appear to be an attempt to equalize the application of law. 

First, please note that I have  not endorsed the proposed legislation.  I have assumed that if the bills present impracticalities and burdens, those things can be addressed in committee hearings and during legislative floor debate.  And then the bills' sponsors can reply with what their motivations and objectives are for the bills.  My original post on the Defamation Law amendments stressed the point that the concept of free speech involved in protecting the anonymous is in direct conflict with that which states that people possess the right not to be defamed and that free-speakers can be held responsible for their abuse of free speech.  I suggested that if such rights and accountability do not in fact exist--which they do not in some circumstances--then eliminate this fraudulent posturing in the State constitution and in the legal code.  Don't pass these bills, but amend the state laws to state the actual rights and remedies people have concerning defamation.    Which, practically speaking, are none. 

If Internet media are not subject to the laws of defamation, why should the established news media be?  Any newspaper which would publish an anonymous letter-to-the-editor which defames someone can be held liable.  Under the Decency in Communications Act,  internet media are declared immune, if someone posts a defamatory anonymous comment.    The argument is made that the new media is fast and puts the printing press back in the hands of  the people, which somehow exempts it from responsibilities regarding the rights of other people.   That leaves  the question of why the people should not have to obey the law but the legacy media must.

The State Constitution affirms freedom of speech with the only caveat that those who abuse that freedom are responsible.  The state law prefaces the slander and libel sections with the statement that "Every person is obligated to refrain from infringing upon the right of others not to be defamed."

And some bloggers are lining up to declare, "It's not my job."  Recent case law and Supreme Court rulings tend toward the side of the bloggers.  The growing sentiment is that free speech is stifled when encumbered with concerns about defamation.   The notion that providing redress for defamation is a direct assault on the First Amendment is one of those non compos mentis gems that is possible to state only in our age of pandemic dementia. 

In the matter of defamation, the current state law is a meaningless sham.  It professes a stance toward decency and suggests remedies for wrongs that do not, in fact, exist.  The defamation laws as they stand are equivalent to putting a fire exit sign over the image of a door painted on the concrete wall of a movie theater.  If a real emergency arises and people pile up trying to exit through an immovable section of wall...well, tough shit.   The door was painted on the wall to create the appearance of a concern for safety.  No one ever intended it to serve the function announced for it.  South Dakota defamation law, and the case law which defines it, is  a model of  that kind of dysfunction.

The nation is making a fuss about the fact that American students seem to lag behind other nations in their grasp of science and math.  There seems to be little notice that Americans are for the most part illiterate in the principles of rhetoric.   In a high school composition course, we students were drilled on the logical fallacies in rhetoric.  Special stress was put on the ad hominem fallacy, which attacks the person rather than the idea the person has put forth.  These principles were reinforced in college freshman rhetoric courses.  If a student used an ad hominem attack, the paper containing it was severely downgraded, if not failed.  The ad hominem, however, was not the only logical fallacy of which we were taught to be wary, but it was considered the most serious offense because it might involve a false accusation against someone's reputation.  Any attack on character and personality required evidence and proof, or it was considered defamation.  That concept of rhetorical literacy has been lost in the fuming caldron of neo-partisan politics.  The Internet is a pasticcio of malicious doltishness.  And that malice often verges over into outright defamation.

When people state their opinions and prejudices as matters of fact, they often move over the line into personal defamation.  Actually, in the case of bloggers, the signed bloggers commit defamation as often as their anonymous commenters.  The reason they get away with it is because legal action is so costly and time-consuming and the laws, as stated above, do not actually provide any means of redress.  The original rules for libel were comparatively straightforward.  If you said something that damaged a person's reputation, you could be challenged to prove it.  If it was a factual truth, you could say it and not be regarded as commiting slander or libel.  However, if what you said was not factually true, you would have to pay damages.  And anything that was said which was untrue or said without regard to whether it was true was considered malicious in intent and automatically was presumed to have inflicted damage.  Being held responsible for what was said did, indeed, make people cautious about what they said.  Responsibility certainly had a chilling effect on free speech if what what one was about to speak was defamatory without substantive justification.

The bills before the South Dakota legislature may need some sharpening and revision, but they represent the first time in a long time that the legislature is trying to enable some equality of justice which promotes decency in political dialogue.

A premise behind the establishment of media that offer reporting and opinion for public consumption is that the freedom to publish entails a commensurate responsibility  for what is published.  That means that those who exercise editorial control of any medium will be held liable for anything unfairly or falsely damaging that appears in the forum they control.   If someone does not want to assume that responsibility, then that person should probably not attempt such an enterprise.  And as for anonymous comments, there are a myriad of ways available and practiced by many to deal with anonymous comments.  Bloggers are better advised to monitor their own witless sniping and be willing to assume responsibility for the malice, falsehoods, and damage they perpetrate on their own.

A major source of dysfunction is that the laws are being shaped to fit the new media, rather than the new media being shaped to fit the law and the responsibilities of free speech.  The problem could be resolved by restoring the established definition and means of redress for defamation.  Nothing could raise the level of discourse on the Internet as effectively as making posters responsible to prove the truth of their factual statements and holding them liable for reasonale, enforceable damages.  And newspapers and broadcast organizationsm, as well as bloggers,  would have to assume responsibility for the comments posted on their Internet sites.

In other words, make the current Constitutional and legal provisions operative through enabling legislation.  Put simply,  hold people responsible for what they say or what is said under their auspices. 

Bloggers do, indeed, represent the more earthy voice of the people.  The dysfunction that people complain about in government is demonstrated daily, hourly, on the blogosphere.  The people get what they vote for and what they are.  Whatever happens to the anti-defamation bills, I am confident they will be rendered absurd by the dysfunction to which our elected representatives cater. 

In a time when people can accuse the President being simultaneously a subverter of the Constitution, a fascist, a communist, a socialist, a Muslim, an illegal alien, and whatever perjoratives their somnolent little brain cells can dredge up,  I don't think there is much interest in equal justice under the law.   

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. 














 













http://www.washingtonpost.com/wp-dyn/content/article/2010/02/06/AR2010020602048.html

Friday, February 5, 2010

The blogosphere stands up for the right to defame anonymously

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.

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