Press Release: ACLU of South Dakota Concerned By Two Bills in South Dakota House That Chill Free Speech
From my mailbox….
ACLU of South Dakota Concerned By Two Bills in South Dakota House That Chill Free Speech
FOR IMMEDIATE RELEASE
February 5, 2010
SIOUX FALLS , SD- The American Civil Liberties Union of South Dakota is deeply concerned by two bills that have been introduced into the South Dakota Legislature this week. Both bills seek to add serious constraints to websites that allow users to post anonymous opinions. HB 1277 and HB 1278 mandate that websites in South Dakota that allow for unnamed posting of comments, opinions and other speech items must track those who are posting on their web pages and keep records of IP addresses and other potential identifying and private information.
“These bills seek to address issues of defamation on internet websites but do so in a way that is so excessively broad that it suppresses South Dakotans ’ rights to freedom of expression and infringes on their right to privacy,” states Robert Doody, Executive Director of the SD Chapter of the ACLU. “Placing burdensome requirements on bloggers, website owners and others who operate internet-based sites that accept anonymous comments chills freedom of expression to its very core,” said Doody.
The two companion bills seek to undermine and discourage freedom of expression while forcing individuals who operate web-based forums to track their users. If HB 1277 passes, individuals would have the right to sue bloggers, website owners and operators, and others to force them to turn over their business records which identify those who post anonymous comments that might be viewed as defamatory. HB 1278 mandates that “content providers,” those who manage and run websites, blogs, and other forms of internet-based media, track and keep records of all identifying information of their website users.
“Defamation is not protected speech, but anonymous speech and the right to exercise your First Amendment rights are at the very heart of our democracy,” exclaimed Pat Powers, author of South Dakota War College , a blog which allows anonymous comments and which discusses political issues in South Dakota . “Blogs, online newspapers, hospitals, your local funeral home, anyone who allows anonymous comments must install tracking software if this law passes,” according to Pat Powers.
“Defamation is not protected speech on the internet or in any other forum; however, the current bills seek to make anonymous speech a virtual liability for any website owner,” according to Robert Doody of the ACLU of South Dakota. “The ACLU is particularly concerned with how HB 1277 and HB 1278 will chill speech about politicians and other public figures. “Anonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…” as stated by the United States Supreme Court in Abrams v. United States, 250 U.S. 616 (1919).
Although HB 1277 and HB 1278 have the express purpose of helping combat defamation, both bills place undue burdens on websites to the point where the ability to make anonymous comments would be curtailed and in turn limit the ability to exercise the First Amendment. “There are other avenues to address online defamation through the legal process besides passing such chilling legislation,” said Doody.
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Comments
Pat:
I have brought unity to the SDBlogOSphere. CAH, PP, Sibby, and now, the ACLU are all on the same side.
My work here is done.
Epp
Actually Todd, Sibby surprisingly seems to be staking out the opposite territory on both bills…
I know you meant well, but this is one of those issues on which we’ll probably have to agree to disagree. If you agreed with me all the time, you’d probably be a Republican.
Interesting how the ACLU gets involved in a free-speech issue when it appears that liberals will be among those targeted.
Suffice it to say that this is an issue which has equally enraged liberals and conservatives, Republicans and Democrats, etcetera and so on.
It cuts across party lines and ideological divisions.
Maybe that should be a hint to our folks in Pierre, If both sides of the asile agree and say it is a bad idea. Is anybody listening out that way.
grudz,
In this case, it looks like the left is showing up with tar, the right with feathers and they’re both carrying their side of the rail.
The ACLU, although it supports liberal causes more often, is consistent in their mission statement and will go against liberals if they propose inconsistent legislation.
I appreciate Representative Hamiel for being a thoughtful person and a voice of reason. I did not know him prior to last year, but I have found him to be an asset to the Legislature. I hope everybody who reads this blog will listen to the testimony he has to offer on HB’s 1277 and 1278. I do not know what he plans on saying, but I know he will raise some important and reasonable points.
This is a discussion/debate worth having. I have spent the past several minutes reading all the comments on all the posts. (Hadn’t been on here at all to see the multiple posts. Kinda borders on being considered an obsession by my friend, Pat, doesn’t it?) The points raised are good ones. Rep. Hamiel has raised an issue that is completely new to the Legislature and the SD blogosphere. While I don’t expect his bills to pass, I do expect them to bring an entirely new discussion (unlike a number of bills that continue to sprout every year, only to hear the same old arguments prior to being shot down) before the legislative body. There is no harm in that.
For anybody who is so inclined, take a look at HB 1215 (dealing with utilizing health care trust fund interest earnings for wage increases for direct care staffers at nursing homes). Similar bills have been brought in the past, and they have always been defeated. I have been a sponsor of every one of those bills because I know the history of the fund, and I believe there is a story that NEEDS to be 1) told by the long-term care industry and 2) heard by the Legislature. It is an educational opportunity, if nothing else.
The reason I point to HB 1215 is because it is a bill that parallels Rep. Hamiel’s bills, but HB 1215 won’t receive any attention in the media or the blogosphere. That doesn’t mean that HB 1215 doesn’t have any value. Similarly, I think HB’s 1277 and 1278 offer a tremendous opportunity to bring a debate-worthy issue before–if nothing else–at least one legislative committee. I think Rep. Hamiel has some important insights to share, and I trust that he will do so in his usual level-headed manner. He is no fool, and he knows what he has set himself up for. It is not uncommon for people to hear an idea and to start jumping to conclusions and demonizing.
FOR THE RECORD, this is a bill. It hasn’t had a hearing, nor has it won the support of one voting member of the Legislature. To call it a “law” as some have is a HUGE stretch.
As for the ACLU’s statement, I am proud to appear as a co-sponsor to a pair of bills they are “deeply concerned” about. We’ll call it dumb luck because I almost didn’t sign on. In the end, I did so because I had been asked to eventually testify as a proponent to relate one account to the committee. It would have been easy for me to have kept my name off the sponsor sheet, in which case, I would appear to be on the same side as the ACLU. Dumb luck, indeed!
I have to admit, these bills have sparked some bold debate.
Is the Legislature floor of South Dakota the proper forum for such a discussion? Maybe not however, it is a starting point.
Will websites that are hosted overseas also have to comply with this bill, and will websites that are hosted and/or controlled in South Dakota, have to comply laws of other states or countries, even those that are ‘unfriendly’ toward the United States? What agency is going to oversee jurisdiction disputes? ICANN, United Nations?
This is not the first time that South Dakota has taken the lead in international affairs. Former Governor Bill Janklow stopped all trucks with Canadian beef to be stop @ the border.
I am not advocating, in any way that speech be limited, or those that have been defamed be limited in their right to sue those defaming them. However, the ground rules how to make that happen should be laid out
To call what happens on the floor of a legislative chamber “debate” is to torture the English language.
The more I read Mr. Greenfield’s statement, the more upset I get.
As legislators you were elected to represent my district at the state level. You are paid $12,000 per year, $110 per diem plus some change for mileage. You get to spend a little better than 30 days in Pierre to solve the state’s problems; all the bills introduced, heard in committee, debated on the floor, voted on several times; a bill has to jump through a quite a number of hoops before it becomes law.
This year, the State of South Dakota has some real problems that need to be solved. There was a structural deficit of $32,000,000 until the department found some 600 students.
The is not a permanent highway funding source and some of our highways are in serious need of some attention. Some of the cities are looking forward to that third penny sales tax so they can start some projects. That is on top of the other things that need to get done.
Ladies and Gentlemen legislators, you’ve got some work to do, and precious little time to get it done.
Introducing a bill, to just get the conversation going is a waste of time and my tax dollars. I understand that Mr. Epp was consulted in drafting one of the bills. great, wonderful, he is one out of dozens of bloggers (I understand he has a law degree as well) However, before drafting a bill and presenting to the legislature (and people) of South Dakota as a way to fix the problem, maybe some discussion with more than one blogger, hold some on-line town hall meetings with this as your topic, how about questioning some of the hosts like Google, MSN and Facebook. Isn’t that what summer study groups are for?
To credit of the sponsors of the bills, they have seen a potential problem, and took steps to fix the issue at their level before it became a major problem. As I have mention in earlier posts. The lines of jurisdiction can get blurred on the Internet, and the fact that these law makers stepped up, and introduced these bills shows some insight. I just wished they have gone about it in a different way.
Mike C, great thoughts. This loony bill supports my earlier writing that we have too many legislators by at least half. Hamiel and Berry obviously have too much time on their hands and flawed judgment as they can whistle past the $100 million deficit pursuing this nonsense and non-problem in a 35-day session.
Aside from the prior-restraint unconstitutionality, they conveniently forgot the net is borderless – just set up the blog on a out-of-state or offshore server. What will Hamiel, Berry and Epp propose next – to have South Dakota censor in-state content, so gosh, we can be like China?
Greenfield: these bills should never have seen the light of day and to waste our time and money for the purposes of some legislative experiment is unacceptable. If this bill passes, then you will know my name and be able to strategically place a dead pig’s head on my mailbox. I would instruct your peers to quit hanging out at the longbranch and quit this crap of introducing B.S. bills and get to work I assume that our representatives have read the Constitution and know that bills like these confront our first amendment rights to call a spade a spade regardless of the language used. What stupid bills.
What about tanning bed bills? Is that not also a waste of time??? I mean who gives a fat rat’s _______?? Do the people we are trying to save want to be saved in this case??? How about some of the bills we pass, such as making children stay in school until 18, and then the following year propose to rescind it? We keep re-visiting the same ground so often. How aout school funding..sure am sick of hearing about that one.back-forth..back-forth, and on and on and on.
When time waster bills like this are introduced, at least they give the public an easy way to identify legislators that are ready to be retired from public service.
I want to be clear, Yes, the issue needs to be discussed, and some kind of law passed, I understand the problem, and it needs a remedy.
This is way too early in the process to even think about introducing bills on the matter. The state legislature is not the proper forum to start the discussion, IMHO introducing a bill is the proper way to start the discussion.
I’m sure if you ask, there are a number of bloggers, and those who comment on them, will be more than willing to meet with the legislators to discuss this matter. May I also suggest that we also include members of our Washington delegation to such a meeting.
Let’s sit down discuss the matter before wasting valuable time introducing bills
Just dissapointing when conservatives are on board for this garbage. I’m sure if there was a threat or something totally inapropriate bloggers in SD would give up that persons identity. But just saying something that a legislator doesn’t agree with is disturbing.
Conservatives, the ACLU is on your side too.
I’ll never understand why those on the right have a problem with an organization that refuses government tax breaks on principle that they need to be independent. An organization whose sole purpose is to defend the power of the U.S. Constitution and Bill of Rights.
An organization that has boldly applied their mission to everyone equally, regardless of public opinion or popularity.
If conservative ideas were as under attack as the right thinks, Conservatives should be first in line to sign up as card-carrying members.
Good job Epp, you’ve shown such skill with drafting legislation that unites us — that I think you should go up against Thune. No one else seems to be interested.
I wanted to correct one matter stated above. SD legislators receive a $6,000 salary/year.
Valid points about summer studies, etc. The legislature is afforded five summer study committees each interim. There are generally around 25-35 subject areas to choose from. Two of the summer studies have been devoted to agency reviews for the past several years, so that leaves three other areas that can be studied. Education and property assessments have been areas studied repeatedly, so being able to allocate time to a matter such as this or human trafficking or a whole host of others is unlikely. Nonetheless, it does remain an option. The only thing is, for those who view this issue as a waste of time during Session, it certainly wouldn’t make a lot of sense to make it one of our five five-day studies.
I did not mean to upset anybody with my previous post. I do apologize for that. (I am flattered that somebody took the time to read it once, let alone more than once. 
)
I hear the concern about “wasting time” during Session. Keep in mind, though, that the legislative body works to get through all issues brought before it. For every “state dinosaur” or “state dessert” bill that is introduced, there are a host of other more hard-hitting ones. The “bigger” issues get proper attention. Sometimes, we just have to work longer days, and from time-to-time we have to schedule additional committee meetings to get through all the bills. Whether we have 474 bills introduced (as is the case this year) or upwards of 600+ (as has been the case in the past), the salaries of those involved remain the same, so there is really no savings or additional expense to be realized by the taxpayers. I’m no fan of wasted time, and I know we subject ourselves to that public sentiment all too often. However, I find that there is almost always SOME value to the discussions that are held. There are people with whom I seldom agree, but every time they present a bill, I find there is something to be learned.
Look at me! I’m becoming more understanding and tolerant with each passing day in The Great Arena of Ideas!
Again, I do appreciate everything that people have shared with respect to the two bills being discussed. Thank you for your willingness to share, even if you do think some of us are cotton-headed-ninny-muggins. (That’s a reference to a line from “Elf”.)
Have a good Super Sunday evening.
Allow to express my apologies, regarding my previous post about the pay. As far as time and expense of doing business, It is not just the salaries of the lawmakers, there is the cost the support staff, utilities, I am sure there are some other costs I may have over looked. Sessions can be scheduled for 24 hours a day, however there is a cost to the state (and, us the tax payer) not to mention a bit rough on the lawmakers.
If legislature can only ‘officially’ five, five day summer studies, then have some unofficial meeting. I am sure if you ask, several of the bloggers, and those that comment on them would be happy to meet with any of the legislators, at local coffee house, or where ever and discuss some of these issues. While I can’t speak for anyone else but myself, I would much happier if you went to Pierre a bit more knowable some of the subjects you are passing laws on.
Brock Greenfield is so similar to Dan Lederman it is rediculous! Both of those guys make me proud! I bet they get along great!
These two bills address a serious problem that is inherit within the blogosphere. That is identify those use make slanderous and libelous comments on blogs and forums, as anonymous or use a fake name. So this person can be held responsible for his or her words. IMHO Good. Freedom of speech does not mean freedom of responsibility of your speech.
Defamation can happen in any forum, be it comments on a blog, a game forum, Letters to the editor in a paper, or even on a soapbox in the town square. in each of these cases the person making the statement should be held to same stranded.
The problem with those on the internet is identifying those making the comments. HB 1277 and 1278 demands the blog operators (and I am assuming forum operators and moderators ) release IP information, and other identifying information to the court.
Not all blogs or forums track this information, that is namely left to the host. Even then the only thing a IP address can tell you is what computer was used to make the comments. If it leads to a home or office computer, then the search is narrowed considerably, it if leads to a public access network, like at an airport, or truck stop, finding the computer much less the person could prove a bit more difficult. If someone is really trying to cover there tracks, find the person could be almost impossible, even with full cooperation of all the companies involved.
There is this nagging little problem of Jurisdiction. I moderated a game forum for a company based in China, the servers were in India, My supervisor was in Austria, with people posting from around the world. Minus the fact they forgot to pay me. When it came to legal matters it was about as clear as a South Dakota white out blizzard.
While I can appreciate the intent, these two bills will do little to solve the problem, while putting more restrictions on blog operators and hosts.
I urge this bill be killed, let’s open a dialog how to solve the problem at hand
Wow sez: How about school funding..sure am sick of hearing about that one.back-forth..back-forth, and on and on and on.
No, it’s more like back, back,… back. That’s what happens in a one-party state.
my goodness. I thought there was something wrong with all those old wanted posters at the top of every blog but now I see that the very pretty young woman with the really wide hips has gone insane. I am scared my friend Mr. Sibby is defending these people. Who is this Hamiel guy? I am positive he is not a communist.