The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Sunday, February 21, 2010

Kill Bill 1

This bill comes up for consideration tomorrow morning in the House State Affairs committee. You can listen to it at 6:45 am (7:45 Pierre time). Read through it, then read my comments below, if you care to.


Introduced by: Representatives Hamiel, Bolin, Brunner, Carson, Cutler, Deadrick, Fargen, Gibson, Gosch, Greenfield, Hoffman, Hunt, Iron Cloud III, Jensen, Juhnke, Kirkeby, Kopp, Krebs, Lederman, Olson (Betty), Schlekeway, Sly, Turbiville, Vanneman, and Verchio and Senators Turbak Berry, Brown, Dempster, and Vehle

FOR AN ACT ENTITLED, An Act to provide for a process of obtaining certain information from online content providers in slander and libel actions.
Section 1. That chapter 20-11 be amended by adding thereto a NEW SECTION to read as follows:
Notwithstanding the safe harbor provisions of the federal Communications Decency Act, any person bringing an action for libel or slander under this chapter or under common law may name the online content provider as a defendant in such an action for the limited purpose of obtaining information about any unknown, anonymous, or pseudonymous person who has left or uploaded a defamatory comment, posting, message, photo, video, or other communication about another person. Any online content provider so named shall provide, within thirty days of service of the summons, at the expense of the person bringing the slander or libel action, any information, reasonably available and kept in the normal course of business, that assists in the identification and location of the unknown, anonymous, or pseudonymous person who left or uploaded the defamatory content.

Section 2. That chapter 20-11 be amended by adding thereto a NEW SECTION to read as follows:
Upon providing the information to the person bringing the slander or libel action, in lieu of serving an answer to the complaint, the content provider shall provide the court with an affidavit that the provisions of this section have been complied with. Upon such showing, the court shall issue a dismissal of the action against the content provider.

Section 3. That chapter 20-11 be amended by adding thereto a NEW SECTION to read as follows:
Any online content provider named as a defendant pursuant to this Act bears no liability for damages and costs in the event of a judgment or verdict against the defendant who left the defamatory communication. However, nothing in this section affects a person's right to sue the online content provider under this chapter or under common law if the online content provider himself or herself made a defamatory communication about another person.

I've refrained from commenting on this bill because I don't have any credibility with anyone who is likely to open a can of whup-ass on supporters of this bill. At least not because I asked them to. Pat Powers at the Dakota War College blog has been all over it (in several posts the last couple of weeks) since it showed up in hopper in Pierre. He's presented a pretty coherent and persuasive argument for its death. Lee Schoenbeck even presents an informed argument to kill it, and Schoenbeck has been no friend of liberty of any sort in my memory. Doug Wiken, at Madville Times presents an excellent argument that 1277 is a solution in search of a problem. I don't even think that if there were a problem that 1277 would solve it.

"...information, reasonably available and kept in the normal course of business..." is already available to anyone with a court order. To make it mandatory for an "online content provider" (blogger) to make it available on the mere basis of a complaint considerably lowers the bar for forced disclosure of what should be private information.

There is no penalty prescribed in 1277 for the blogger who doesn't capitulate except that the blogger can be named as a defendant in a lawsuit over who said what about whom. I repeat, there is already a remedy in law for libelous speech. It involves showing a judge the evidence and getting a search warrant for records--the same records available under the language of 1277.

1277 is, purely and simply, about stifling dissent. That is a subject about which I have some knowledge. If you want to call the members of State Affairs, or your own legislators to express your feelings about 1277, there's probably still time this afternoon before they head for Pierre. If you want, you can find their number at Pierre on the Legislative Research Council website.

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