Opinion: Internet poses challenges, but defamation still needs attention

Imagine the newspaper editor of many years ago when, to his amazement and consternation, a court ruled that the First Amendment to the U.S. Constitution did not provide absolute protection to free speech.

The fabled First Amendment had limits, after all.

If a story falsely named someone as a “communist” or “thief,” then the newspaper could be sued for libel.

Over the years, other exceptions to the First Amendment emerged, but thankfully they are few:

* You can’t yell “fire” in a crowded theater.

* You can’t publicly call a person a crook, which is slander, unless the accusation is true.

* Sedition — advocating a violent and illegal overthrow of the government — is unprotected, as is obscenity.

This week, a committee in the state Legislature voted down two measures that were designed to apply accountability to another medium: the Internet.

Unfortunately, for all of its exciting programs and seemingly limitless information, the Internet contains a dark side: child porn, fraudulent offers, misinformation, illegal schemes, and yes, defamation.

House Bill 1278 required Internet sites to keep a record of who posted anonymous comments on those sites. Then, when defamation occurred by an anonymous writer, the injured party would have some recourse.

I was not surprised at the outcry against this bill. Some, but certainly not all, of my newspaper friends cried foul. They argued that forced record-keeping, albeit by inexpensive and sometimes free software, was an illegal burden that would have a “chilling” effect on free speech.

Some bloggers and other new media folks pointed out that enforcement would be difficult and actually impossible if the writer really wanted to hide his identity.

Despite all the noise and side issues, the issue boiled down to this: If a person’s name is besmirched online by an anonymous writer, shouldn’t the injured party have some recourse? And if the answer is yes, how could it be achieved?

The legislation was not perfect, and could not cover every eventuality. Yet that can be said of most laws. That’s why we have courts. That’s why lawsuits are filed. There is a law against driving faster than 75 mph on Interstate 90. Yet I note this law is commonly broken, and only a fraction of the lawbreakers are ever charged. Does this mean the law is inadequate, even worthless? No. It is valuable because it sets limits, and tells the driving public what is acceptable. Break it at your peril. You may be caught.

Similarly, the bill requiring a record of anonymous posts was not an infringement on the First Amendment because anonymous speech is protected. However, defamatory speech, anonymous or otherwise, is not. The measure would have provided some help in identifying anonymous posts to an Internet site.

During my research on the legislation, I often heard that the Internet is so new and so different that it should not be subject to the same rules of law that have governed other media. Indeed, Congress in 1996 passed a law that provided virtual immunity to Internet service providers and Web site hosts. Even if a libel was posted on a Web site, federal law prevents the site owner or manager from any legal liability. The reason? Congress said the Internet, as the next big thing, should not be inhibited in any way. Growth and economic development trumped accountability to the First Amendment.

What is obvious now is that our legal system is years behind the new media, and that people are vulnerable online in a whole host of areas, including online defamation.

The old-time newspaper editor who learned, by court decision, that the First Amendment had limits, later discovered that he could prosper and put out a good newspaper even though he had to respect the truth, especially as it pertained to individual reputations.

One day, it will be the same with the Internet. Until then, however, anonymous character assassination online will be a continuing challenge. House bills 1277 and 1278 failed to win legislative approval, but they served the purpose of focusing attention on a problem that needs to be addressed.

Rep. Noel Hamiel, a Republican from Mitchell, represents Aurora and Davison counties in the state Legislature.

Tags: noel hamiel, anonymous blogs, opinion, internet