The First Amendment and Criminal Libel Law

I thought I'd serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions; here is the section on criminal libel law -- the article argues that anti-libel injunctions are like mini-criminal-libel laws.

[You might also read my first post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection; or you can read the whole article in PDF. To see the footnotes below, click on the "MORE" link at the bottom of the post first, or click here.]

The threat of jail has historically been one potential deterrent to libelers, though under the rubric of criminal libel rather than anti-libel injunctions; and it remains a potential deterrent in some states.

Criminal libel laws that are consistent with First Amendment libel law rules—generally speaking, ones that require a showing of defendant's "actual malice"[1]—are constitutionally permissible: Civil and criminal libel cases "are subject to the same constitutional limitations," including when the speech is on a matter of public concern and is about a public figure or official.[2]

All the other First Amendment exceptions that the Court has explicitly recognized authorize criminal liability for speech, since such criminal liability is often the only viable way to punish and deter the unprotected speech: incitement, obscenity, child pornography, fighting words, fraud, threats, or speech that is an integral part of criminal conduct.[3] The Court has never suggested that the defamation exception, alone of the First Amendment exceptions, doesn't authorize such criminal liability.

True, many legislatures have repealed criminal libel laws, or declined to reenact them after overbroad criminal libel statutes have been struck down. But fourteen states still have generally applicable criminal libel statutes,[4] and criminal libel prosecutions continue in most of those states;[5] indeed, after the Minnesota criminal libel statute was struck down as overbroad in 2015,[6] the Minnesota legislature reenacted a properly narrowed statute.[7]

A 1978 Alaska Supreme Court decision struck down a criminal libel statute on the grounds that the definition of "defamatory"—"any statement which would tend to disgrace or degrade another, to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned or avoided"—"falls far short of the reasonable precision necessary to define criminal conduct."[8] Those who agree that criminal libel statutes are unconstitutionally vague should take the same view about catchall anti-libel injunctions enforceable through criminal contempt law.

But it seems to me that, if a criminal libel law statute is limited to knowingly (or perhaps reckless) false and defamatory speech (as the Alaska statute was not), it should be clear enough to be constitutional, as several courts have indeed held.[9] The limitation to knowing or reckless falsehoods would limit the substantive reach of the statute, diminishing any concern that the vagueness of the law would chill a wide range of speech.[10] The definition of libel also has a well-established "common law meaning," a matter that the vagueness precedents view as significant.[11]

And the line between falsehoods that tend to lead to disgrace, hatred, contempt, or ridicule and other falsehoods yields a good deal of black and white, though also some amount of grey. "[T]he mere fact that close cases can be envisioned" doesn't "render[] a statute vague"—"[c]lose cases can be imagined under virtually any statute."[12] Rather, a statute is unconstitutionally vague only when an element is "indeterminate[]," as with statutes that criminalized "annoying" or "indecent" speech—"wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings."[13]

"Condemned to the use of words, we can never expect mathematical certainty from our language";[14] but the definition of libel seems no more uncertain than the constitutionally valid definitions of fighting words and of incitement, which also turn on the tendency of words to produce certain actions or beliefs among listeners.[15] And while it may be unclear whether an allegation is false, or spoken with knowledge of its falsehood, that sort of factual uncertainty isn't enough to render a statute unconstitutionally vague.[16]

[* * *]

Criminal libel laws, then, are constitutional. But one can certainly be worried about their potential chilling effect. If they are enforced, after all, any time anyone writes anything potentially derogatory about anyone else, the writer should worry about the risk of prosecution. Though they generally require the prosecutor to prove that the speaker made a knowingly or recklessly false statement of fact, some speakers might worry that the prosecutor and the factfinder will misjudge this; and even the threat of an unsuccessful prosecution can deter many speakers. This may help explain why they have largely fallen out of favor.

[In upcoming posts, I'll turn to how anti-libel injunctions aim to recover some of the value of criminal libel laws while decreasing the chilling effect on constitutionally protected speech—but, unfortunately, sometimes losing some of the important procedural protections that criminal libel laws provide.]

[1] Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), requires a showing of "actual malice" before punitive damages are recovered, even in lawsuits brought by private figures. It follows that criminal punishment should also require such a showing, even as to libels of private figures.

A similar showing might not be required as a First Amendment matter as to speech about matters of purely private concern. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (allowing punitive damages without a showing of "actual malice" in such cases). But general principles of criminal liability would in any event usually call for a showing of at least recklessness as to attendant circumstances in criminal cases, see, e.g., Model Penal Code § 2.02(3), which roughly maps to actual malice; and this may reasonably be viewed as a First Amendment requirement when it comes to criminal libel in particular.

[2] Herbert v. Lando, 441 U.S. 153, 157 & n.1 (1979); Garrison v. Louisiana, 379 U.S. 64, 67 (1964) (taking the same view as Herbert); In re Gronowicz, 764 F.2d 983, 988 & n.4 (3d Cir. 1985) (en banc) (likewise); Phelps v. Hamilton, 59 F.3d 1058, 1073 (10th Cir. 1995) (upholding a narrowly drawn criminal libel statute); State v. Carson, 95 P.3d 1042, 2004 WL 1878312, *2 (Kan. App. Aug. 29, 2004) (noting that the trial court had upheld a narrowly drawn criminal libel statute; the defendant did not argue the First Amendment on appeal); People v. Ryan, 806 P.2d 935, 941 (Colo. 1991) (upholding a narrowly drawn criminal libel statute, when limited to speech on matters of purely private concern).

[3] See, e.g., United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality op.) (giving this list of exceptions, together with "speech presenting some grave and imminent threat the Government has the power to prevent"); Brandenburg v. Ohio, 395 U.S. 444 (1969) (describing when incitement may be criminalized); Miller v. California, 413 U.S. 15 (1973) (upholding criminalization of obscenity); Smith v. United States, 431 U.S. 291 (1977) (same, despite Justice Stevens' argument in dissent, id. at 317, 321, that obscenity law should only be enforceable through civil remedies); New York v. Ferber, 458 U.S. 747 (1982) (upholding criminalization of child pornography); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (upholding criminalization of child pornography); Virginia v. Black, 538 U.S. 343 (2003) (upholding criminal punishment for true threats); United States v. Williams, 553 U.S. 285 (2008) (upholding criminal punishment for certain speech that was seen as integral to criminal conduct).

[4] Idaho Code §§ 18-4801 to 18-4809 (2016); Kan. Stat. Ann. § 21-6103 (2017 Supp.); La. Rev. Stat. Ann. § 14:47-14:50 (2016); Mich. Comp. Laws § 750.370 (2004); Minn. Stat. Ann. § 609.765 (2016); Mont. Code Ann. § 45-8-212 (2017); N.H. Rev. Stat. Ann. § 644:11 (2016); N.M. Stat. Ann. § 30-11-1 (2004); N.C. Gen. Stat. §§ 14-47, 15-168 (2017); N.D. Cent. Code § 12.1-15-01 (2012); Okla. Stat. tit. 21, §§ 771-774, 776-778 (2011 & 2017 Supp.); Utah Code Ann. § 76-9-404 (2017); Va. Code Ann. § 18.2-417 (2014); Wisc. Stat. Ann. § 942.01 (2015-16); see also 14 V.I. Code §§ 1171-1179 (2012). Two of these statutes have been held unconstitutional as to statements on matters of public concern, but remain valid as to statements on matters of private concern. State v. Snyder, 277 So. 2d 660, 668 (La. 1973), rev'd on other grounds, 305 So. 2d 334 (La. 1974); State v. Powell, 839 P.2d 139, 147 (N.M. Ct. App. 1992).

A few states have libel statutes that are focused on libels of particular businesses, such as banks. See, e.g., Ala. Code § 5-5A46; Tex. Fin. Code § 119.202. Query whether that sort of content classification is constitutional given R.A.V. v. City of St. Paul, 505 U.S. 377, 384 (1992), which states that libel laws that distinguish among libels based on content may be unconstitutional, unless the content distinction focuses just on more damaging libels. See, e.g., United Food & Comm. Workers, Local 99 v. Bennett, 934 F. Supp. 2d 1167, 1196 (D. Ariz. 2013) (striking down statute because it created special remedies for defamation of employers, as opposed to defamation of others).

[5] See, e.g., David Pritchard, Rethinking Criminal Libel: An Empirical Study, 14 Comm. L. & Pol'y 303, 313 (2009) (finding, on average, four criminal libel prosecutions per year in Wisconsin from 2000 to 2007); Eugene Volokh, Criminal Libel: Survival and Revival (in draft) (discussing prosecutions in other states).

[6] State v. Turner, 864 N.W.2d 204 (Minn. Ct. App. 2015).

[7] Minn. Stat. Ann. § 609.765 (2016).

[8] Gottschalk v. State, 575 P.2d 289, 292 (Alaska 1978). The ACLU of New Hampshire has likewise challenged the New Hampshire criminal libel law on vagueness grounds. Complaint, Frese v. McDonald, No. 1:18-cv-01180 (D.N.H. Dec. 18, 2018).

[9] See, e.g., How v. City of Baxter Springs, 369 F. Supp. 2d 1300, 1305–06 (D. Kan. 2005); Pegg v. State, 659 P.2d 370, 372 (Okla. Ct. Crim. App. 1983); Davis v. Weston, 501 S.W.2d 622, 623 (Ark. 1973); State v. Stephenson, No. 06CA0901, at 2–3 (Colo. Ct. App. Mar. 6, 2008) (relying on People v. Ryan, 806 P.2d 935 (Colo. 1991), which didn't expressly address a vagueness challenge but implicitly rejected the dissent's vagueness argument).

Ashton v. Kentucky, 384 U.S. 195 (1966), struck down a common-law criminal libel rule on vagueness grounds, but only because the rule—inconsistently with modern libel law—extended to "any writing calculated to create disturbances of the peace." Id at 198–99; see also Williamson v. State, 295 S.E.2d 305, 306 (Ga. 1982) (same). Likewise, Parmelee v. O'Neel, 186 P.3d 1094, 1104 (Wash. Ct. App. 2008), rev'd only as to attorney fees, 229 P.2d 723, 728 (Wash. 2010), and Fitts v. Kolb, 779 F. Supp. 1502, 1515, 1518 (D.S.C. 1991), struck down criminal libel statutes as unconstitutionally vague only because they banned "malicious" speech without making clear that this referred to the New York Times "actual malice" standard rather than to the normal English definition of the term. See also Tollett v. United States, 485 F.2d 1087, 1097–98 (8th Cir. 1973) (striking down a federal ban on defamatory mailings as unconstitutionally vague and overbroad, because, among other things, the law made it unclear "whether truth would still be punishable unless coupled with good motives," "whether Congress deemed it necessary that 'malice' be an element of the offense for either private or public libels," "whether libel must be knowingly falsely made or may be 'negligently' made," and "whether the libelous or defamatory statements must necessarily lead to an immediate breach of peace").

[10] See Reno v. ACLU, 521 U.S. 844, 873 (1997) (concluding that a statutory criterion becomes less vague when other required elements of the offense ""critically limit[] the uncertain sweep" of the overall statutory definition).

[11] See, e.g., Winters v. N.Y., 333 U.S. 507, 519 (1948); Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

[12] United States v. Williams, 552 U.S. 285, 305 (2008).

[13] Id. (giving examples drawn from Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971), and Reno v. ACLU, 521 U.S. 844, 870–71 & n.35 (1997)).

[14] Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

[15] Chaplinsky v. N.H., 315 U.S. 568, 574 (1942) (holding that a fighting words statute interpreted as limited to "words likely to cause an average addressee to fight" was not unconstitutionally vague); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (endorsing an incitement test limited to "directed to inciting or producing imminent lawless action and is likely to incite or produce such action").

[16] Williams, 552 U.S. at 306.