InstaPundit (who's a constitutional law professor at the University of Tennessee and his fellow Tennesseean Bill Hobbs have been criticizing a proposed bill imposing special retraction obligations on Web speakers:
An owner or licensee of a web site or web page shall have fifteen (15) days to remove any defamatory statements about a person from such web site or web page; however if the owner or licensee has been given notice that such statements are defamatory then that owner or licensee shall have two (2) days from the date of the notice to remove the statements from the web site or web page, whichever is less. Failure to remove defamatory statements as provided in this section shall create a presumption of malice intent.
The bill was then withdrawn but its backer is saying he'll bring back something else having to do with online libel. It's hard to tell exactly what this bill would do, but it seems likely that it would violate the First Amendment and probably 47 U.S.C. § 230, the federal statute that immunizes web page operators from liability for material posted to their pages by others. (Jack Balkin agrees on the § 230 question.)
But if Tennessee legislators want to do something about online libel and retractions, why not look at Tenn. Code Ann. § 29-24-103?
(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.
(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.
(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.
This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well?
The retraction statute already might cover bloggers, if you read "periodical" to include blogs, as a California Court of Appeal decision does. But given that the matter is not completely clear, it would be good if Tennessee legislators — and legislators in other states that have similar laws — made it clear.
--There, was that fast enough?
Think of the children!
With many of California's laws as too often shining examples of what not to do, CCP 425.16 stands out as very encouraging to free speech, very fair for defendants of nuisance suits by litigious bullies, and very effective at preventing such bullying in the first place.
Basically, if defendant in a libel suit was making a public comment on a court proceeding, or a matter before any official body, or just a comment on a matter of public interest, the plaintiff better have sufficient evidence to sustain a judgment readily available. Once defendant files the 425.16 motion to strike, plaintiff can't use abusive discovery demands, delay, or other abusive tactics to bully the defendant into settling, and he will be liable for attorney's fees if defendant prevails on the motion.
And, litigious bullies take note, defendant can file the motion to strike anytime after plaintiff's complaint is filed. So you better have all your ducks a row from day one.
But I think the proposed statute would have the deleterious effects that you suggest are not so likely. You are correct, of course, in saying that many blog postings are legally "opinion" rather than factual assertions, but there are plenty of factual assertions flying around. Sock puppet accusations are plentiful, from time to time. Also, a lot of blogging consists of what old-time politicos would call "opposition research". A slightly careless blogger could mistakenly attribute the actions of John Doe, 1/12/1968, born in Massachusetts to John Doe, 1/12/1968, born in Minnesota, or to John Doe, 1/21/1968, also born in Massachusetts. Or they could easily pass on a lie made up by somebody else. I've spent a lot of time clicking through "hat tip" links to find the original source for a claim, and it often turns out to end up with some dubious site making the claim without a source.
But the worst impact would be on the bloggers who allow comments and, perhaps on ISPs. I don't know if this statute would have applied to service providers, but I also don't know what a web site "licensee" is, as the statute uses the term. Many complaints (some quite legitimate) have been made about the notice and takedown provisions of the DMCA, which shift the burden of asserting non-infringement of copyright onto the shoulders of the service provider and the content uploader once a person makes an unsubstantiated assertion of ownership to the ISP and demands that allegedly infringing material be taken down. This makes it very easy for anybody to remove anonymous postings, as there will be no way for the service provider to contact the anonymous poster to get a "put back" letter which would allow the material to stay up unless the claimed owner files suit.
It's one thing to do that with intellectual property, the ownership of which can usually be settled fairly definitively, and is often obvious to anybody (that Jon Stewart clip is not in the public domain). With defamation claims, however, it would be preposterously easy for a thin-skinned sort to send a take-down notice under this proposed law to the maintainers of every site on the web which hosts any negative comments about the individual.
There's no particularly urgent need for such immediate take downs on grounds of libel. Libel is very hard to prove, for public figures especially, unlike copyright infringement claims, so there is really no basis for shifting the burden to the other side, either legally or practically, as this would do.