A Threat to Free Speech from the SD House

ACLU of South Dakota Concerned By Two Bills in South Dakota House That Chill Free Speech

February 5, 2010

Robert Doody, ACLU of South Dakota, (917) 385-5702 or rdoody@aclu.org

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.

2 thoughts on “A Threat to Free Speech from the SD House

  1. Interesting that this has come at this time & so close to the “Citizens” SCOTUS ruling.

    Yesterday I watched Thomas in an ‘live conversation’ with Florida law school students and he addressed this very issue of anonymous commenters/bloggers on the internet.

    It’s rather long, but was very educational in more ways than the law. Americans should watch more of these to learn about & understand those who sit in the highest court in our great nation.


    1. Linda,

      Thanks for your thoughts and the link. The timing of these matters tells us that free speech is very much under scrutiny and that we do well to pay close attention to these discussions.

Comments are closed.