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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.   

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Aberdeen, South Dakota, United States