They've already voted--with their minds, morals, and feet.

It has been a tough year for the Democrats to recruit candidates for office  in South Dakota. The reason is clear.  People who have the mental acumen and other qualifications to hold public office do not think that the political system in its current state is capable of  providing fair representation and honest government.  They do not see the ballot box as a viable or relevant means of registering their concerns.  Consequently, running for public office, even if one wins an election, is pointless.

But the first objection to a run for office is more compelling.  It is that candidates will be subjected to a level of libelous and degrading accusations that harm the candidates and their families.  One candidate who has run before, consented to run again, but then withdrew, said his wife and children objected to the point where his marriage could be jeopardized.  He said that when one contemplates a campaign, one thinks about all the positive things one can do.  But when the campaign starts, the reality is that you find yourself swimming in a cesspool of petty and slanderous accusations.  His children were assailed by disparaging comments in school, and he found that he confronted them in the course of his business long after the campaign was over.  Democratic candidates in South Dakota, and many other places,  have to very carefully consider what effect a candidacy will have on their families, their friends, and their professions.

And as another long-time public servant put it, there is no honor in running for public office any more.   You go to Pierre thinking you can contribute something, but you find that nothing can get past the mob rule that has become politics in Pierre.  The mob has been in control for decades, and while the Democrats try to reflect the diversity of support in their party, the Republicans march in unwavering lockstep, taking their orders from their ideological dictatorship, and chorusing the latest chant sent down from party headquarters.  The longtime public  servant cites an example.

When Kevin Weiland decided not to run in the primary for South Dakota's house seat, he gave his reasons as, after conferring with party leaders, not wanting to create more divisions in the party, and that he conferred with Rep. Herseth Sandlin and was assured that although she voted against the health care reform bill, she would not vote to repeal it.  Immediately, the Republican headquarters pounced on this announcement and contrived its standard, nefarious disinformation.  Candidates Curd and Noem immediately took up the chant that Herseth Sandlin should explain the "back room deal" to her constituents.  A responsible, intelligent but contentious call between two members of the same party becomes a back room deal, because  conniving and backroom manipulation is the only kind of politics that the Republicans in Pierre know and understand.  However, that press-release performance by the candidates, with the the Republican official hack site--South Dakota War College--trumpeting the press releases, is testimony for anyone who is paying attention to what has happened to politics in South Dakota and what the real agenda of these candidates is.

 This all is consistent with why John Thune will have no significant challenger in this fall's general election.   Although I am not aware of all the efforts put forth to field a strong Democratic candidate, I have been involved in identifying potential candidates.  The matter of the toxic nature of campaigns and their corrosive effect on personal and family life is the constant factor that potential candidates cite in not considering a run for office.  However,  disillusionment with South Dakota runs deeper than avoiding the permanent tarnish that ad hominem campaigns inflict. Thune's win over Tom Daschle in 2004 comes into play.  A few Democrats say that Thune ran a good campaign and Daschle didn't, but politicos who place importance on principles have a more dire analysis of that  campaign.  Those who  credit the Thune campaign do so because it was, apparently, successful.  They fail to acknowledge that the basis of the campaign was character assassination.  And the fact that character assassination was successful says much about the intellectual and moral level of South Dakota.  Thune may have run a successful campaign, but it was not a decent campaign.  It depended on the electorate's capacity for petty malice and escalating it into malign falsehoods on which they would frame their voting decisions. 

Groups allied with the Thune campaign ran full-page newspaper ads with pictures of Tom Daschle next to pictures of Saddam Hussein and Osama bin Laden, branding them all as enemies of America.  Thune followed a strategy of trying to  stay remote from those who did the dirty work.  One of the anti-Daschle political blogs was created solely as a weapon of character assassination.  But it was eventually revealed that its authors were on Thune's pay roll, and Thune could no longer disassociate himself from the nefarious and poisonous basis of his campaign.  The blog's main author, who had been a professor at SDSU left his academic position and became a  staff member for Thune, the circumstances of which the South Dakota press never investigated.  In addition to the outright falsehoods and libels, the campaign made an assessment of a characteristic in South Dakota that the Daschle campaign preferred to  believe was not possessed by a majority.  The Thune campaign used Daschle's million-dollar home in D.C., which he and his working-spouse purchased,  as an example of his betraying the values of his constituents.  In South Dakota, as realtors have pointed out, a similar home could have been purchased for about a third of the D.C. price tag, but any evidence of personal success in South Dakota is regarded as a betrayal of those good, old, sod-hut values.  By being successful in D.C. and even earning a reputation as an effective leader, Tom Daschle committed the kind of act that is unforgivable and justification for hatred in South Dakota:  he actually accomplished something.  The Thune campaign plumbed the jealousy, resentment, and petulance at someone's success to the fullest, and the ploy won.  Toward the end of the campaign, Thune became brave enough to openly identify himself with the character assassination.  Shortly before election day, Thune's campaign ran an ad accusing Tom Daschle of dumping his first wife for a beauty-queen trophy.  Inspiring stuff.

The betrayal-of-South-Dakota theme was linked to Daschle's opposition to a Constitutional Amendment against flag desecration, which he said was taken care of by statute.  Anything  that could be contorted into a betrayal of South Dakota's provincial values was brought into the campaign against him.  And that is where the Daschle campaign miscalculated.  Daschle has a personal aversion to personal attacks and smears.  His campaign thought that South Dakotans by and large were above that kind of tactic and that a sense of decency would prevail in the end.  The campaign was simply wrong.

Thune will not have an opponent this fall. He gets a chance to run on his record.  As a member of the House, his record was one of stunning fecklessness and befuddled obstinacy.  He just said no.  He thought having a service office in Aberdeen was a waste, until local Republicans insisted that, perhaps, having a facility for addressing constituent concerns might be part of the job.  He said no to the by-pass of U.S. 281 around Aberdeen, and the construction of a 4-lane highway from the Interstate,  until members of his own party hotly pointed out to him that sometimes infrastructure was important and necessary for the operation of the state's third-largest community.  And when the 4-lane project ran into difficulty with an environmental impact study, the Senators held a conference call with constituents at the VFW while Thune staffers ran around circulating flyers contending that environmental concerns were just another way to waste tax dollars.  As a congressman,  Thune did not belong to any of the caucuses dealing with agricultural  matters or water development, until a political opponent pointed this out and Thune, apparently, thought he should maybe make a pretense at least of caring about some of the state's major economic concerns.

Thune is a good script reader.  He can recite what others contrive for him.  For his 2004 campaign he bought the services of Dick Wadhams, a Karl Rove compatriot who shares the idea that the measure of political success is how many characters you assassinate.  Wadhams  (now chair of the Colorado Republican party) helped Thune build on the theme that Daschle emboldened and gave comfort to Saddam Hussein and bin Laden.   During a televised debate, Thune tossed out this accusation that Daschle was in the business of giving comfort to and emboldening our enemies,  a clear implication of  treason, and Daschle sat with a stunned look that anyone would be so absurdly malevolent as to make this kind of charge without even the remotest fact to misconstrue in support of it.  There is, of course, no answer for this kind of accusation except to point out that it has more relevance in regard to the mental competence and the moral character of its authors. That kind of response was precisely the kind of thing that Daschle avoided and forbade his campaign from using.  However, his reticence showed how wrongly he had judged the prevailing character of Thune and the people of South Dakota.

While some people promote the idea that Thune's  defeat of Daschle makes him a political star, whatever that is, Thune continues to pursue irrelevant foolery as his political course.  He has taken a course of maligning the attempts to stimulate the economy, although he voted for the major measures advanced by George Bush.  He co-sponsored legislation to prevent any taxation of cow flatulence, although the EPA has indicated that such taxation was never proposed and could not be administered if it was.  Thune's forte is to pursue falsehoods that fool the foolish and the dupes.  His performance on the floor of the Senate to decry stimulus spending was so cogent and eloquent that it made the comedy channel.  (See
the video below.)

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Clusterf#@k to the Poor House - Economic Recovery Plan
www.thedailyshow.com
Daily Show Full Episodes Political Humor Health Care Refo

Of late, elements of the Republican stripe have assailed the Democratic party for failing to give South Dakota voters a choice for the U.S. Senate.  They cannot grasp that the voters have registered their choice.  In the past, they have voted for state officers who represent their resentful conservatism, but for national representatives who are adept at bringing to the state the massive amounts of federal welfare on which the state subsists.  This welfare does not include what is due the reservations, as required by treaty.  It does include the heavy subsidization of agriculture, particularly in those parts of the state where it has never been capable of sustaining itself. With Thune's constant refrain of saying no, perhaps the U.S. can finally divest itself of a the huge burden of stout pioneer-types who base their independent lifestyles on federal handouts.

So, what kind of votes will the Democrats cast?  Those who are left will most likely sit this election out.  When I look back at the many people I worked with in  the 2004 campaign, I am astounded at how many have left the state or plan to.  South Dakota constantly  whimpers about the brain drain, the exodus of its young people with talent and aspirations to other places.  As most college counselors advise, a smart student does not invest a future where it has little chance of  developing.  But it is not only the young who leave for better prospects.  During the last five years, many mid-career professionals I know have left.  And many more who are looking for productive retirements have left.  They plan to invest the time remaining to them in other places. 

Ultimately, what motivates people in South Dakota is not political.  It's cultural.  John Thune's unopposed candidacy does not represent a political choice as much as a cultural state of affairs.  The people who would encourage and support a Democrat candidate have already voted.  With their feet.  And their minds.   And their morals. 

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.