From Jeff Taylor, “Blogged Down,” in the May 2007 issue of Reason (subscription only):
In the last few months, legislators in both Texas and Tennessee have explored the idea of slapping blogs with special “online defamation” regulations.
A Tennessee proposal, pushed by state Sen. Jamie Woodson (R-Knoxville), would give bloggers two days to take down any statement a public figure deems defamatory. Those who fail to comply would face “a presumption of malice intent,” and the statement would not actually have to be defamatory for the presumption to kick in.
Prominent bloggers [not mentioned, but Instapundit wrote on this here] have helped beat back this initial batch of bills, but the onslaught is probably just beginning. As blogs traffic in more video and start to look more like broadcasters than Committees of Correspondence, politicians will want to regulate. Campaign ads, driven to the internet by restriction on old media, may spark a regulatory showdown.
—yet another reason why John McCain will likely draw more votes from Democrats than he will from conservatives.
With respect to this ridiculous Republican-led proposal by Sen. Woodson, I can’t see anyway that such legislation could withstand legal scrutiny. First of all, as described, it is absolutely Sullivan-esque in its assumptions—namely, that those who are public figures are allowed to determine what is posted about them simply by asserting that they find it defamatory, a complete surrender to the kind of “tolerance” that turns wrapping an Israeli flag around a Muslim prisoner into “torture,” or turns the phrase “that’s so gay” into high school hate speech.
Second, the fact that the blog poster cannot appeal before being forced to remove the post is clearly runs afoul of the first amendment; at the very least, a public figure should have to do what the rest of us have to do and go through the legal process to establish that the post is, in fact, defamatory or libelous.
For obvious reasons, I’d support a streamlining of the civil process that allows for quick hearings on these matters—after all, I don’t believe someone who is truly being libeled or defamed should have to wait, say, eight or nine months before the first civil hearing on matter offers some measure of relief, particularly when certain unscrupulous people who are looking to destroy someone’s reputation by defaming him consistently enough that the defamation or libel appears in search engine results (which could affect anything from potential employment to investigations by child services)—but what I cannot support is the kind of legislation that gives undue power to chill speech to anyone who finds certain depictions or descriptions unflattering.
Of course, I’ve believed in the past that something was clearly unconstitutional, only to be beaten about the head and neck with McCain-Feingold and Kelo. So these kinds of things should worry any proponent of free speech, however crazy they seem on their face.
And what makes it all the more disturbing is that such proposals are being proffered by Republicans, who are proving to be every bit as nannystatist and controlling as their Democratic brethren.
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For background, see also, TalkLeft, Balkanization, Beltway Blogroll, Bill Hobbs.
I must say I am not surprised to see that Sen. Woodson is a JD. Bill as suggested strikes me as most legislation does – as a giant jobs-creation bill for attorneys.
What does surprise me is that Sen. Woodson received her JD from UT Knoxville. Obviously, skipping Prof. Reynolds’ class…
Hmm. This seems like a truncation of Reagan’s quip about the the government, “If it moves, tax it, if it keeps moving, regulate it, and if it stops moving, subsidize it.”
These morons just want to skip over the “tax it” phase and go straight to the “regulate it” phase. The good news for you, Jeff, is that this formulation gets you one step closer to some crazy wild cash from the gubmint.
I agree these laws appear unconstitutional and just plain stupid.
But I disagree that there needs to be some sort of streamlining of the civil system to deal with meritorious cases of actual defamation, as there already is a way to deal with it. The existing system provides for TROs and preliminary injunctions that could instantly pull down the defamatory statements until there is a trial on the merits some months down the road. That the longer they stay online means they end up in search engines is a pretty compelling risk of irreparable harm, which must be shown to get such preliminary injunctive relief.
The Soviets were so concerned with unregulated speech, they limited and licensed typewriters.
Not unrelated, SCOTUS will have the opportunity to kick the crap out of McCain-Feingold and all manner of speech suppression masquarading as “campaign reform” when it hears FEC v Wisconsin Right to Life.
Hugh Hewitt’s column on it here
Well, fuck. I’m getting my offenses in while the gettin’s good. Bastards.
TROs, permanent ROs, and even contempt citations don’t help if the actor is out of state, aplomb.
You are going to just have to trust me on this.
And as civil cases take much longer to ajudicate, you could find yourself subject to repeated libels with no recourse of 8,9,10 months before you are granted a preliminary injunction.
Even then, that injunction may not be preventative, because the out of state actor will likely face no extradition.
Again, you’ll just have to take my word on this.
So I do believe there should be a streamlining of the civil process whereby preliminary injuctions and domestication happen far more rapidly if a court holds that there is sufficient cause to bring a libel case.
I thought a “Tennessee proposal” was something perverts muttered oustide rest stop restrooms off the interstate.
No no, Thor. A “Tennessee proposal” is something normally directed at one’s cousin or, after a few generations, one’s sister.
What the world needs is a way to preempt unconstitutional legislation prior to SC action, which is rare. I can’t conceive of one. Penalize idiot lawmakers?
The most onerous part of the process of legislation is that little “constitutional test” part. It’s utter bullshit.
There have been many terrible ideas in the history of politics, and this is no exception.
Perhaps someone should mail Woodson a copy of the Constitution, not that the SC wasn’t fully aware of what it was doing in Kelo.
I guess people can talk themselves into anything, no matter how damaging and stupid, if it serves their momentary interests.
If you look at the landscape and how it has changed since 1980 or so, I think the problem is that many politicians are TOO comfortable with nanny state-ism.
They don’t see what is wrong with it because to them, that is just the way things are these days. Of course it is also the thing that makes many joe normals upset with the republicans.
I am not sure how our society got so girly but it did.
I have always said, and I will always say, that the first mistake in this direction was the misunderstanding of drug use and abuse. Those that misunderstand it feel that it is an outside object that they can use to scare people into “productive” lives.
Let us be sure that some day drinking while blogging will be an illegal offense.
Keep in mind that I am all for heroin addicted bloggers being sent to jail.
And now that I have thought of this, who wants to market a breathalyzer with me that will allow the govt to see exactly WHOM has been drinking while blogging?
Is it legally possible to defame public figures? My understanding is that public figures cannot sue anyone for “libel” or “defamation.” Public figures include anyone who holds office. It seems to me that this asinine legislation is a blatant override of the First Amendment, giving politicians protection from public scrutiny that they did not enjoy under older forms of media.
Not quite. There’s a much higher threshold for showing libel or slander when the plaintiff is a public figure, but it’s not unattainable.
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