Put on an ugly face

During the final vote on health care reform, the tea partiers gave America a spectacle as they toilet papered the Capitol, verbally and visually.  As members of Congress took to the Capitol balconies and the House floor to egg them on, the Republican Party abandoned its claim that the racist hate speech seen and heard was just a few angry folks exercising their freedom of speech by openly endorsing and applauding it.

An advantage to unfettered free speech is that people eventually put on display their true motives and character and we find out what and who they really are.  The   health care debate has been a revelation of an aspect of America that has always existed and has always threatened its true freedoms and protections. In 1935, as the Nazis took over Germany and paralyzed much of Europe, Sinclair Lewis wrote a satirical novel, later produced as a play, titled It Can't Happen Here.  It was about how a president with dictatorial ambitions manipulated a gullible populace and seduced them into accepting totalitarian measures by exploiting ignorance and stupidity and venality.  The health  care debate has given us an It-Can't-Happen-Here moment.  The opponents of health care have been manipulated and driven by good old primal hate (a revelation of what GOP has come to stand for).  They accuse Obama of being every enemy America has ever had.  For many, the ploy is working. 

Prsident Obama won the primary and the election because he promised to rise above degraded level of partisanship that has characterized political discourse in recent decades.  His opponents determined that political retaliation was their platform and denied every attempt at conciliation and cooperation.  Their obstinacy and petulance was accompanied by an outpouring of hate propaganda that employed accusations which included racial slurs and charges of being, at once, fascist, Nazi, socialist, and all the bugaboo that could be dredged up from the Ku Klux Klan and McCarthy periods of history.  It has not been a time when the best that is thought and said has had much influence on the national discourse.  The KKK and McCarthy supporters killed people and destroyed lives.  False accusations and hate speech augments violence.  Every rhetorician knows that.  Violent language is the precursor of violent acts.

Congressmen were called racial names as they walked into the Capitol Sunday.  One was even spit upon.  Those congressmen who gathered on the Capitol balconies, of course, weren't fanning the flames of anger; they were merely promoting those better ideas they have for health care reform.  That's why at least ten Democratic congress people reported death threats.  Two had their home offices vandalized.  Violence driven by political forces can't happen here.  Seeing parallels with dark moments of history are, of course, just gratuitous accusations.  Unless the one who sees them knows the difference between rhetoric and linguistic war.

Primal anger, which boils up from the reptilian cortex, can find outlets other than violence.  It can be expressed on the Capitol floor in promises to repeal the health care law.  And it can go to court.

Fourteen state attorneys general have signed on to take the health care bill to federal court to challenge its Constitutionality. The party-line anger and tactics aside, they do have a point to pursue.  Their case will focus on the part of the health care bill that mandates everyone to buy health care insurance.  Their position is that this mandate is not sanctioned in the Constitution and, therefore, violates the states rights to do the business to be determined by the states.

On a non-legalistic level, the question concerns whether the federal government can force the citizens to buy something.   President Obama raised this very question during his campaign.  John Dorschner of the Miami Herald relates that Obama was advised to campaign on such a mandate:

Obama was opposed to an individual mandate, preferring instead strong requirements that employers be required to provide coverage. ``I'm not sure how ready the country is politically to accept the overall mandate,'' Irwin Redlener, a Columbia University physician and advisor to Obama, told The Miami Herald during the campaign.

But the Miami Herald piece goes on to relate how many Republicans advocated the mandate during the campaign:

 "The truth is this is a Republican idea," said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the "individual mandate" in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the "Hillarycare" the Clintons were proposing.

McCain did not embrace the concept during his 2008 election campaign, but other leading Republicans did, including Tommy Thompson, secretary of Health and Human Services under President George W. Bush.

Seeking to deradicalize the idea during a symposium in Orlando in September 2008, Thompson said, "Just like people are required to have car insurance, they could be required to have health insurance."

Among the other Republicans who had embraced the idea was Mitt Romney, who as governor of Massachusetts crafted a huge reform by requiring almost all citizens to have coverage.

"Some of my libertarian friends balk at what looks like an individual mandate," Romney wrote in The Wall Street Journal in 2006. "But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian."

Romney was referring to the federal law that requires everyone to be treated in emergency rooms, regardless of their ability to pay.

 Dorschner points out that the idea was originated by a conservative economist during the 1980s and was embraced and advocated by groups of business executives and health care organizations.

This background and the behavior of the Republicans suggest strongly that the hatred being fanned is not merely opposition to the health care bill.  The racist and hateful rhetoric speaks of deeper, primal angers that do not emanate from the rational and moral part of the cortex.

The courts are a better place to exercise those angers.  But I would not bet they will be confined to that venue.  There is a liberal and you-know-what in the White House.  And an impassioned factions want their country back.  Their country was populated by men in white sheets and hunters of communist witches.


Of course, a replaying of the Spanish Civil War can't happen here.  

What happens if health care reform fails?

The question is whether people should have the opportunity to receive health care.   The answer from the right is no.  Except for those who can afford it.  The rest had better get over it and learn to be content with sickness, injury, and death as their lot.  In our current political scheme of things,  they don't count.

The current proposed legislation leaves out 17 million people who don't have health care insurance, so they have nothing to get over, except any illness they have, and the preferred resolution to their problem is death.

But for South Dakota, passage of the bill will mean:

* 513,000 SD residents will have improved coverage.

* 217,000 families and 23,100 small businesses will receive tax credits and other assistance.

* It closes the "donut hole" for prescription drug coverage and improves Medicare for 133,000 beneficiaries.

* Provides coverage to 45,000 uninsured SD residents.

* Allows 67,000 young adults to obtain coverage on their parent's plan.

The Cretin Chorus--that aggregation of those who recite Republican cant on blogs--chants we can't afford health care and we have a better idea.  The better idea has never been expressed in specific terms.  In general terms, the idea is to let market forces bring down the cost of health care and, therefore, make it available to more people.  While decrying the ponderousness and inefficiencies of big government, they trust the very market forces that brought the country to its knees through the greed, dishonesty, and incompetence that has caused the Great Recession.   These forces, they claim,  will take care of the people who can't afford health care, are losing it because they have lost their jobs, who have pre-existing conditions or have exceeded their cost limits, or who must drop it because the premiums have gone beyond their ability to pay.  Cogency is not an element of the current political debate.

 The Republicans insist that the current bill constructed by the Democrats be discarded and the whole process started anew.  After spending more than a year of work on a very complex problem, the Democrats are expected to, in effect, proclaim that they are too mentally incompetent and morally corrupt to correctly assess the problems and formulate reasonable solutions.  The Republicans insist that the poor wretches cry "uncle" and sign over all functions of government to them.   Even the most depraved, demoralized  cretin would not wallow in such self-debasement, but the Republicans insist on it as the way to address health care.  As with cogency, reasonable respect is not a part of the current political debate.

What is notable about the debate is that in defining the opposing party and its adherents, the Republicans have defined themselves.  They have declared outright verbal war against people with health care concerns.  They have defined themselves as the enemy.

The opposition to health care reform steadfastly refuses to address the problem of those who, for the many reasons alluded to above, do not have health care.  And the media has been digging up instances of people who have died for the lack of it. To someone who actually thinks that human life has value--not merely says it has as a rhetorical flourish of the moment--the refusal to front the problem of those who suffer and die because they do not have financial access to health care is incomprehensible.  But incomprehensibility characterizes the debate on the issue.  Relevancy and cogency is not part of the current political debate.

To people who have been educated in rhetoric in its original meaning--the accurate and principled use of language to create, verify, and refine knowledge--as opposed to its popular meaning--the misuse of language to mislead, misinform, and inflame--what appears to be the official mode of Republican discourse is rooted in solecism, imperscuity, and  malice.  It is not rhetoric in the pure sense of the term.    In more familiar terms,  solecism and imperscuity boil down to falsehoods, intentional and gross negligence. 

There is a more dismaying aspect to the health care debate.  The hostility directed toward that 46 million who do not have health care provisions resonates with the attitude of Germany in the 1930s and those who Hitler called the useless eaters.  The dismissal of the human value of these millions is couched in terms about the evils of the welfare state. 

For people who have studied the propaganda and attitudes of Germans in the 1930s,  there are some alarming similarities to America's current political debate.  As one who served in Germany during the early years of the Cold War,  I was puzzled by how the German people accepted the rule and values of the Third Reich.  The troops serving at that time were given an indoctrination into the techniques of propaganda and the cultural attitudes that accepted it and led to the rule of the Nazis.  Part of our job was to be on the watch for any resurgence of those attitudes.  They were there, but at the same time a Marxist-inspired movement was considered more dangerous in the area where I served--the beginnings of the Red Army which developed into a terrorist threat by the 1970s.

A correspondent of the Beacon, however, has reminded me of how the propaganda techniques of the Nazi party appear to be the model for some current political movements in America.  Ann comes from a military family that was stationed in Germany.  She went to a military high school there, was in a program for the gifted, and speaks German like a native.  (She is also extremely competent in other European languages.)  While in high school, she, too, was puzzled about why the German people accepted Nazi rule, and she discussed and probed her puzzlement with her German contemporaries.  She found that Kristal Nacht (the military-led trashing of synagogues and mass-assaults against Jews on November 9, 1938) was the signal event in comprehending how Naziism gained such a hold on the populace.   The German teen-agers of Ann's time were resentful and concerned about being held responsible for the history of their country during World War II.  They were able to supply Ann with information and perspectives that explained some of Hitler's success in rising to power.

When Ann returned to the states, she received a scholarship at a prestigious liberal arts college which required a baccalaureate thesis from its graduates.  For her thesis,  Ann collaborated with some other students who went to Germany and made a more comprehensive analysis of how the country fell under Hitler's spell and the significance of Kristal Nacht.   She recently took a look at the thesis and told me of some its more salient points.

• After World War I, the German people felt humiliated and angered by their defeat.  Hitler's appeal to national and ethnic pride filled a need to regain stature on the world stage, but he also appealed to a sense of Teutonic superiority.
• Criticism of Nazi policies was denounced as unpatriotic and expressive of a hatred for Germany.  Criticism was quickly quelled through this tactic.
• The Nazis said that anyone who was not able to actively work and support the development of the new Germany was part of a welfare state that impeded and obstructed Germany's return to national eminence.  Hence, the condemning term "useless eaters."
• Hitler made the Jews and other minorities the scapegoats for all the ills that beset Germany.  They needed to be eliminated if Germany was to regain the pride and power it once had.  At his Nuremberg trial, the commander of Auschwitz, who proudly  cited the two-and-a-half million he killed in gas ovens and the half million he killed with starvation and disease,  said, "It was something already taken for granted that the Jews were to blame for everything."
• The intellectual environment of Germany was subsumed by hate-rhetoric that defamed individuals and groups.

Ann also reminds that Germany was not the only hotbed of fascism during the 1930s.   Mussolini led a fascist takeover of Italy.  And the Spanish Civil War, which was a fight between republicans and fascists, saw the fascists win.  The energy that put those fascist regimes in power was plain, old grassroots hate and the desire to screw over the less advantaged.  While many castigate Congress for the obstruction and rhetoric that holds it in a state of siege, the motive and courage to espouse the fascist dismissal of the needy comes from the down-home folks who emulate their counterparts in 1930s Germany, Italy, and Spain. 

The health care debate takes place in a context and a verbal environment very much like that which possessed 1930s Germany and other parts of Europe.  There exists a fascist element that pushes a nationalistic agenda that regards a state of war as essential to national pride.  This is all done with wild accusations from the right of the Obama administration being, all at once, fascist, communist, socialist, and on and on.  Obama is accused by the tea party movement, which now includes Justice Thomas's spouse, of dismantling the Constitution--this by the people who defend the war on Iraq, warrantless wiretaps, and the antics at Abu Ghraib and Guantanamo.  Karl Rove said he was proud of the water-boarding administered under the Bush administration.  Following Germany of 1930, the current arguments of the fascist streak are:

•  The right wing pursues belligerent militarism as the only prideful posture that represents America.  It feels that any admission of mistakes or wrong decisions is an admission of inferiority that damages national pride.
• Some people on the right feel that any criticism of the U.S. or any mention of its failings and mistakes is unpatriotic and anti-American.  
• A frequent response to stimulus efforts, unemployment relief, and health care reform is that they are part of the "welfare state" through which  government takes money away from those who work to give to those who don't.   The "useless eaters" complaint is alive and well in the U.S.  
• Liberalism is branded as the great culprit behind all of America's problems. ("It is already taken for granted that the liberals are to blame for everything.")  Spearheaded by Joseph Goebbels' most dedicated student, Rush Limbaugh, the right wing has assigned liberals the blame for every human transgression from homosexual pedophilia to flatulence.  Liberals just don't understand the extent of their power and influence.
• The de rigueur mode of Republican rhetoric is never to do a fact-based point-by-point analysis of anything you oppose.  Rather always, Always, ALWAYs concoct an accusation of intellectual or moral defect or depravity against some person or group.   This tactic does not require any knowledge or honesty, but works up a good case of hatred for any ultimate solutions for the vanquishing of the left wing.  As the propaganda analysts of the Holocaust have pointed out, the foundations of gas ovens are always built with defamatory words.    This is the strategy in use to defeat health care.

The Republican mode of discourse avoids studied critiques of the policies being advanced.  Instead, it focuses on defamation of persons and accusations that have no substantial basis.  A look at the blogs originating in South Dakota provides compelling evidence that the rule of right wing discourse is character assassination.

While President Obama was giving a speech at George Mason University, some protesters outside

said that the passage of health care reform would lead to civil war.  They did not consider what reaction would be produced by the millions of people who have been, in effect, termed useless eaters and negligible entities.

As someone who taught at a denominational college for a time,  I have many colleagues who are pastors and professors of theology.  They say that the message of Christ is clear and unequivocal:  clothe and shelter the poor, feed the hungry, and heal the sick.  That message is a volatile irritant to the right wing these days.

Millions and millions of Americans have been informed by the obstructionists in Congress and their rabid supporters outside that they do not have a country.

The choice seems to be between reform or revolution. 

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.

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.   

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

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.

Memories of the dome gnomes and phrigs

This happened when pranks were done for their diversion and entertainment value.  I was there for this one, as reported on my alma mater's Facebook site.  The subject of the piece is on how the dome at Augustana College's Old Main was turned into a teapot during a night in November 1955.

This collage shows how much paraphenalia and skill was needed by workmen to maintain the dome, the teapot, and the young man who carried out this mission, Road Fryxell, scaling the outside of the building.  The college's account of the phrig is fairly accurate, as it seems to have been researched from the student newspaper.  However, I was there, and remember the details of  how this came about a bit differently.

Old Main sits on a bluff above the street and high above the Mississippi River some blocks to the north.  A long stairway leads up from the street.  It was not exactly a handicapped accessible site.  Well, that's not true.   One young woman who was wheel chair bound was brought by taxi to the foot of the stairs each day for her 8 o'clock class.  Any young men who passed by on their way to class would carry her up the stairs in the wheel chair.   It usually took four of them.  They not only carried her up the outside stairs to the building's entrance, but once inside they carried her to the 2nd or 3rd floor where her class was.  After class, another bunch of young men would carry her down to wherewever she needed to go for her next class.
Understanding how this building was situated and built is necessary to fully appreciate the story I am about to tell. 

It begins with an elaborate phrig, titled Crazy Connie's Used Car Lot.  Crazy Connie was Dr. Conrad Bergendoff, president of Augustana College.  It happened in the early 1950s when there were still World War II veterans going to school on the G.I. Bill.  Many of them brought small cars to campus--VWs, MGs, Austin Healy's,  economical little sports cars. 

One morning when students came to school, they found a group of these little cars parked around the entrance of Old Main and some were inside on the ground floor under the dome with a big sign proclaiming Crazy Connie's Used Car Lot.  The best part of the phrig was leaving people wondering how in the heck those cars got up that long flight of stairs and inside the building.  Well, many of those young men who hauled wheel chairs and other things up those steps when needed got together and carried VWs and MGs up there.  It was a massive undertaking.

The administration was not so concerned about the cars outside the entrance as it was the ones inside.  It was concerned because the building was being breached.  Crazy Connie's used car lot was just one occasion.  The school was proud of a carillon that was installed in the dome.  It's keyboard was on the chapel pipe organ which was on the seecond and third floor of Old Main.   Every Sunday afternoon at about 4 o'clock,  a music professor would give a carillon concert that would echo out over the river valley in lower Rock Island.  One night some enterprising phriggers broke into Old Main,  ascended to the carrillon in the dome,  unhooked one of  the electrical wires to a carillon chime, and replace it with a fog horn, so that every time that note was struck, it sent an oooh-aaaah blast out in the midst of the music.
I understand that the professor threatened to resign if something was not done to prevent such shenanigans with the organ.

The physical plant went to work and found ways to secure the doors and windows to make it near-impossible to break into Old Main and phrig it.  This challenge was answered after a heavy snow fall when
a bunch of people shoveled snow up against the entrance doors making it impossible to gain entrance until it was all shoveled away again.  (Which was done with volunteers, many of whom probably did the original shoveling.)  Classes were canceled that morning.

The challenge to breach Old Main was responsible for Teapot Dome.  Students could no longer find a way to phrig the bulding from the inside, so they devised a way to do it from the outside.  The culprit was Roald Fryxell, son of the geology professor, Fritioff Fryxell, an expert mountain climber who as part of his doctoral dissertation climbed and named the peaks in Grand Teton National Park.  Roald borrowed his dad's mountain climbing gear and went up the sandstone outside of Old Main, as shown in the picture.  The picture shows the technique, but not the actual place he made the ascent that night.  However, the sandstone blocks of Old Main still bear the pinion holes that were made for the ascent.  Once Roald made it to the top of the dome,  the teapot spout and handle had to be hauled up and put in place, which involved feats of engineering and ingenuity. 

(Sadly, Roald whose specialty was paleontology was well on his way to becoming as prominent a geologist as his father when he was killed in an automobile accident.)

Augustana College also claims to be where panty raids orginated.,  They were also devised and carried out by G.I.s who had learned a thing or two about mounting military-like operations.

Nothing encaptures the concept of higher education like scaling the dome of a a towering sandstone building.  People admired the initiative and ingenuity, even if grudgingly.  The closest thing to it of late was the young people from Greenpeace last summer who asended Mount Rushmore and dropped a huge banner over the presidential faces.  Education doesn't get much higher than than.