The Volokh Conspiracy

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N.H.'s Criminal Libel Law Upheld, Vagueness Challenge Rejected

A federal court had earlier denied the state's motion to dismiss the challenge; but now it has granted a renewed motion.


In Frese v. MacDonald, the ACLU of New Hampshire is challenging New Hampshire's criminal libel statute, which provides,

A person is guilty of a class B misdemeanor [punishable by a fine of up to about $1500] 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.

Because of the limited punishments that can be imposed, "[c]riminal defamation defendants are not entitled to a trial by jury" and "state law does not afford indigent criminal defamation defendants the right to court-appointed counsel." "Municipal police departments in New Hampshire have been empowered since colonial times to initiate prosecutions for misdemeanors like criminal defamation without input or approval from a state-employed and legally trained prosecutor." "[O]ver the past ten years, approximately 25 defendants [have apparently been] charged under the criminal defamation statute."

In Garrison v. Louisiana (1964) and Herbert v. Lando (1979), the Supreme Court stated that suitably narrow criminal libel laws (basically, ones that are limited to knowing lies) are constitutionally permissible; but about a year ago, Judge Joseph N. Laplante (D.N.H.) held that the New Hampshire statute was unconstitutionally vague. The law didn't sufficiently clearly define what would "tend to expose [a] person to public hatred, contempt or ridicule," and provides too much opportunity for arbitrary enforcement.

But Tuesday, Judge Laplante changed his mind (correctly, I believe):

[T]he criminal defamation statute adopts part of the common law standard for civil defamation—a discernable, normative standard which New Hampshire courts have consistently construed, and New Hampshire juries have regularly applied, for over one hundred years…. The adoption of the common law defamation standard does much to rein in any alleged vagueness of the criminal defamation statute by giving persons of ordinary intelligence a familiar standard of conduct by which to abide…. Moreover, narrowing constructions of the common law defamation standard applied by the New Hampshire courts, as well as the federal courts, add additional precision and guidance to prevent enforcement of the criminal defamation statute in a generally arbitrary or discriminatory way….

Previously, the State failed to demonstrate that Frese's allegations did not pass muster under Rule 12(b) based on the arguments and case authority it had presented in its first motion to dismiss. At that time, the State focused on the criminal defamation statute's scienter requirement rather than the statute's standard for defamation; asserted, without support, that the statute had "no phrases or terms like 'defamatory'" that might require definition; and submitted no case authority that directly refuted Frese's argument that criminal defamation, as defined by the statute, rested largely on subjective assessments of the speech in question.

The court found the State's showing to be lacking—a position validated by the State's recent and better-supported filings—and thus declined to rule that the criminal defamation statute was not constitutionally vague as a matter of law. Possibly distracted by its busy criminal trial calendar, as well as its concerns about what the discovery process would reveal about New Hampshire's unique police-staffed prosecutions of unrepresented defendants in the context of criminal defamation, the court perhaps should have done more on its own to discover the arguments now made and the authorities now cited by the State.

This is no longer the case. Applying the principles articulated above to Frese's amended allegations, Frese's allegations cannot sustain a void-for-vagueness or overbreadth claim.

I expect that the plaintiff, ably represented by the ACLU of New Hampshire, will appeal to the First Circuit (though I think that court should affirm, agreeing that the criminal libel statute is constitutional).