The Volokh Conspiracy

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ACLU (N.H.) Challenging Criminal Libel Statute

The Supreme Court, though, has suggested that such laws, if narrow enough, are constitutional.


Criminal libel prosecutions are rare in the U.S., but not unheard of—I'm gathering data on them now, but so far it appears that they happen about 20 times per year, and often lead to convictions. About a dozen states have criminal libel statutes that have not been struck down by state courts, and most of those are used at least on occasion.

Most of the recent cases I've seen have involved alleged libels in personal disputes (see the case mentioned at the end of this post for an example). My sense is that they are often seen as the only means that the legal system has to meaningfully punish and deter libels said by people who lack money or insurance, and thus can't effectively be required to pay damages (especially when the people they libel themselves lack money, and can't afford to hire a lawyer when there's no prospect of any significant recovery). [UPDATE: Just to be clear, the theory here would be that criminal libel laws should be enforced against middle-class and rich libelers as well as poor ones, but that criminal libel laws have to be available, because a civil-liability-only rule would be ineffective against poor libelers.]

Some cases, though, do involve alleged libels on public matters, or even of public officials, police officers, or probation agents (30% in the most comprehensive analysis, David Pritchard's 1991-2007 Wisconsin study). There was one case in the news earlier this year, the Robert Frese prosecution in New Hampshire, that involves an alleged libel of a police chief. Lots of people are concerned, and understandably so, about prosecutions such as these (as well as about unfounded prosecutions in the pure personal dispute cases). But under current law, criminal libel statutes are constitutional.

Just eight months after New York Times Co. v. Sullivan (1964), which sharply limited civil liability in libel cases, the Supreme Court decided Garrison v. Louisiana (1964), a criminal libel case; and in Garrison, the Court concluded that criminal libel statutes (especially ones applicable to libels of public officials on matters of public concern) had to comply with the same rules as civil liability—mainly that the government had to show that the defendant's statement was (1) false and (2) said with knowledge of the falsehood or reckless disregard of the possibility of falsehood. Because of this, many old, pre-Sullivan criminal libel statutes have been struck down as being too broad.

Yet Garrison did not categorically reject criminal libel laws, so long as the laws are narrow enough to fit Sullivan and its progeny, chiefly by being limited to knowing or reckless lies. Three Justices in Garrison would have entirely abolished criminal libel prosecutions, at least in public official cases—but the majority (led by Justice Brennan) did not. Instead, it expressly held that "The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy"as in civil cases.

Likewise, in Herbert v. Lando (1979), the Court mentioned in passing that "Criminal libel prosecutions are subject to the same constitutional limitations" as civil lawsuits. On the strength of these precedents, the Colorado Supreme Court in People v. Ryan (1991) held that a properly crafted criminal libel law was constitutional, and the Third Circuit sitting en banc in In re Gronowicz (1985) so stated as well.

Just today, the ACLU of New Hampshire announced that it's challenging the New Hampshire criminal libel statute; and the challenge is a full-on attack on criminal libel law generally. (Conor Friedersdorf [The Atlantic] has more.) New Hampshire statute is quite narrow, and consistent with New York Times v. Sullivan; it provides:

I. A person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.
II. As used in this section "public" includes any professional or social group of which the victim of the defamation is a member.

Indeed, the statute imposes a more demanding burden on the government that Garrison and New York Times require: The government must show that the speaker knows the statement is false (and isn't just reckless about the possibility). The statute doesn't include a special rule for libels of public officials—but, under the precedents, it doesn't have to.

The ACLU is arguing that the statute is unconstitutionally vague, because the "will tend to expose any other living person to public hatred, contempt or ridicule" is too subjective; and the Alaska Supreme Court's decision in Gottschalk v. State (1975) accepted that theory.

But I'm skeptical about it: The "tends to expose to public hatred, contempt, or ridicule" test has a long history to it, and the Court has taken the view that a "knowledge requirement of [a] statute further reduces any potential for vagueness." Holder v. Humanitarian Law Project (2010). The definition isn't mathematically precise, but it doesn't have to be, under the Court's precedents. (Note that in Ashton v. Kentucky (1966), the Court did strike down a common-law criminal libel rule on vagueness grounds, but that rule was considerably broader and less precise than the New Hampshire rule.)

Still, it's an interesting case, and it's hard to be sure how the district court (and, on the likely appeal, the First Circuit) will decide the matter. (It's unlikely that the Supreme Court will intervene, though it is possible.) I'll try to follow the case closely, and report on what the courts decide.

Finally, as promised, here is an illustration, the only New Hampshire criminal libel appellate decision in the past 100 years, State v. Baird (1990); it uses the criminal libel statute coupled with a witness retaliation statute as essentially a ban on libeling someone in retaliation for being a witness:

In the late summer and early fall of 1988, the New Hampshire Division for Children and Youth Services (DCYS) was called upon to investigate allegations that the defendant had sexually abused his thirteen-year-old daughter. This investigation led to the removal of the child from the home she had shared with her father, brother, and paternal grandmother, and the filing of an abuse or neglect petition in the Plaistow District Court. At the subsequent hearing, held on November 1, 1988, information which a DCYS social worker had obtained from the daughter was made part of the proceeding. The defendant was present at this hearing and was aware of his daughter's participation in the investigation. He agreed to sign a consent decree admitting abuse of the child, and was prohibited from having any contact whatsoever with his daughter for a period of at least one year.

Roughly two weeks later, however, on November 17, 1988, the defendant drove his twelve-year-old son to school, as he had missed the bus. While in the parking lot of the school, which was also attended by his daughter, Mr. Baird gave the boy several photocopies of a handwritten note and, at the very least, suggested that his son pass them out to the daughter's friends. The note indicated in no uncertain terms that the defendant's daughter had engaged in sexual intercourse with him on numerous occasions.

The exceedingly crude language of the note further implied that anyone wishing to have sexual relations with the child need only call her at a referenced telephone number (that of her foster home) and she would readily comply. The son handed the photocopies of this note to some of the children who rode on the school bus with the defendant's daughter and to the daughter herself. When asked at a later date by a DCYS social worker what had possessed him to cause the circulation of the copies, Mr. Baird explained that "he did it to get even with [his daughter] for what she did to him, that he only said what she was saying anyway."

Based on these facts, the defendant was charged with tampering with a witness or informant in violation of RSA 641:5. That statute provides, in pertinent part, that "[a] person is guilty of a class B felony if … [h]e commits any unlawful act in retaliation for anything done by another in his [or her] capacity as witness or informant…."

At trial, the State sought to establish the essential element of an "unlawful act" by proving that Mr. Baird had criminally defamed his daughter in violation of RSA 644:11, I, by purposely communicating to others information which he knew to be false and knew would tend to expose the child to public hatred, contempt or ridicule…. Mr. Baird's own admission concerning his motivation for having the copies disseminated also was presented to the jury to aid in proving the retaliation element of the offense….

[T]he defendant insists that the State failed to establish the requisite underlying unlawful act of criminal defamation, specifically claiming that it failed to prove that the statements made by Mr. Baird, alluding to his daughter's willingness to have sexual relations with anyone who telephoned her and requested them, were known by him to be false. In response, the State argues that this issue was not adequately preserved for appeal and should therefore not be entertained by the court at this time. Alternatively, it is the State's position that the evidence presented at trial was sufficient to prove Mr. Baird's guilt beyond a reasonable doubt….

While it is true that the prosecution was unable to present to the jury any direct evidence of the defendant's state of mind concerning his knowledge of the falsity of the second portion of the note's contents, it did provide the jurors with ample circumstantial evidence, excluding "all other rational conclusions" to justify their determination that Mr. Baird knew the statements made by him were untrue. First of all, the record indicates that the defendant's daughter was only thirteen years old at the time the offending copies were distributed. She was in sixth grade and did not maintain an active social life. In fact, as the defendant well knew, she was not allowed to date boys and, except for spending time with a girl friend, did not socialize during the week. A reasonable jury could conclude on the basis of this evidence alone that the defendant knew his statement to be false.

The conclusion was further supported, however, by the daughter's own testimony that, if she had received a telephone call following up on the note's suggestion, she would not have complied with the request. The jury, having had the opportunity to assess the daughter's demeanor and credibility at trial, clearly believed her testimony and could justifiably infer from that testimony that her father, who shared a home with his daughter for thirteen years, knew that she would not wish to engage in sexual intercourse with random individuals who telephoned her.

Finally, the jury knew that this child had been sexually abused at the hands of her father and that she had sought help, risking disruption of her life and alienation from her family, by reporting the incident to authorities. The jurors could reasonably infer that the girl, willing to endure the additional trauma of accusing her father in order to insure that the unwanted sexual contact would cease, did not welcome her father's sexual advances and would not welcome those of strangers, and that her father knew this.

"[R]eviewing courts should defer to the jury's determination unless no reasonable person could have come to that conclusion." In this case, based on the totality of the evidence presented, we hold that a reasonable jury could infer that the defendant knew that his statements regarding his thirteen-year-old daughter's willingness to engage in sexual intercourse with anyone who responded to the note were untrue.