The Volokh Conspiracy

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Free Speech

Criminal Libel Law, Partly Coming Back in Washington State in Harassment Order Cases

When a judge hearing a protection order petition thinks the defendant is engaged in "harassment," which can include two or more statements the judge thinks is libelous, the judge can effectively criminalize future libels of the plaintiff by the defendant.


A new Washington statute related to protection orders, which will become effective July 1, provides:

In issuing any type of protection order, other than an extreme risk protection order, the court shall have broad discretion to grant such relief as the court deems proper, including … an order restricting the respondent from … making harassing or libelous communications about the petitioner to third parties, or making false reports to investigative agencies.

These orders are likely to become quite common, because they will be listed as a possible box to check on the standard Petition for Protection Order form (p. 5, item M). And their effect (as to the "libelous communications" part) will be basically the same as a mini-criminal-libel law, for the particular covered speakers speaking about the particular covered plaintiffs: Violating the ban on "libelous communications" would be "a gross misdemeanor."

Moreover, the injunctions can easily be triggered simply by a judge's finding that defendant has made two or more libelous statements about the plaintiff, entirely apart from allegations of, for instance, domestic violence or indeed any other kind of violence. Such injunctions (long-term or temporary) are authorized whenever a judge concludes, by a preponderance of the evidence, that defendant's speech was (among other things) "unlawful harassment" or "stalking" (now renamed "cyber harassment"). "Unlawful harassment" is defined to mean

  1. "knowing and willful course of conduct" ("a series of acts over a period of time, however short, evidencing a continuity of purpose" but excluding "constitutionally protected speech")
  2. "directed at a specific person"
  3. "that seriously alarms, annoys, harasses, or is detrimental to such person," and
  4. "that serves no legitimate or lawful purpose," if
  5. it "would cause a reasonable person to suffer substantial emotional distress," and
  6. "actually cause[s] substantial emotional distress to the petitioner."

All these elements would be routinely satisfied by repeated false libelous statements said with "actual malice" (i.e., knowledge or recklessness as to their falsity). Likewise, they might well qualify as "cyber harassment," defined as

  1. "with intent to harass or intimidate any other person,"
  2. "and under circumstances not constituting telephone harassment,"
  3. "mak[ing] an electronic communication"
  4. "to that person or a third party"
  5. "anonymously or repeatedly."

Now criminal libel laws don't violate the First Amendment, if they are limited to knowingly (or perhaps recklessly) false statements that damage reputation. I think the injunctions issued under this statute may well be constitutional, too, though the matter isn't free from doubt (see Part II and, as to preliminary injunctions, p. 117 n.194, of my Anti-Libel Injunctions article).

And perhaps it might even be a good idea, even if one thinks criminal libel law generally isn't: Like with traditional criminal libel law, a person wouldn't be criminally punished for his speech unless a criminal jury finds beyond a reasonable doubt that the statement was indeed "libelous." But unlike with traditional libel law, speakers' speech isn't criminalized until the judge finds at least a couple of past incidents of libel (even if just by a preponderance of the evidence, sometimes in a hearing where the defendant isn't present), and the speaker is notified that the injunction has issued; only then will the speaker be potentially prosecutable for future libels.

In any event, though, I think it's worth noting that, after many decades in which criminal libel prosecutions had become rarer and rarer (indeed, had been thought by some to have basically vanished), criminal libel law has survived and is indeed being revived, as I discussed last year. And I think this stems in part from the Internet making it easy for judgment-proof speakers—who aren't deterred by the risk of civil damages, but who might be deterred by the risk of criminal punishment—to engage in libel.

(Note that the prohibition on harassing communications might be unconstitutional, for reasons I've discussed here and here, but here I focus on the prohibition on libelous communications.)