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Free Speech

First Circuit: Suitably Narrow Criminal Libel Law Doesn't Violate First Amendment


From Frese v. Formella, decided today by the First Circuit, in an opinion by Judge Jeffrey Howard, joined by Judges William Kayatta and Rogeriee Thompson:

New Hampshire's criminal defamation statute provides that "[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." "'[P]ublic' includes any professional or social group of which the victim of the defamation is a member." A person convicted of a class B misdemeanor faces a fine of up to $1,200. Because such charges carry no possibility of jail time, criminal defamation defendants have no right to trial by jury and are not afforded court-appointed counsel.

New Hampshire's misdemeanor enforcement process empowers police departments to prosecute defamation. In the absence of the exercise of discretionary supervisory authority by the state Attorney General or County Attorneys, municipal police departments may initiate prosecutions for misdemeanors, including criminal defamation, without prior input or approval from such prosecutors…. "The prosecution of misdemeanors by police officers is a practice that has continued in one form or another since 1791 and is still permissible under existing statutes." Private citizens may also prosecute misdemeanors in New Hampshire, so long as incarceration is not an applicable penalty. {Notably, any private citizen who commences one of these actions could be held liable for malicious prosecution if that person acted without probable cause; likewise, a police officer could be liable if the officer acted wantonly.}

Although criminal defamation is rarely prosecuted in New Hampshire, Frese has twice been charged under section 644:11. In 2012, the Hudson Police Department arrested Frese for comments about a local life coach that he posted on a Craigslist website. Frese called the coach's business a scam and accused him of, among other things, being involved in a road rage incident and distributing heroin. Without the advice of counsel, Frese pleaded guilty and was fined $1,488, of which $1,116 was conditionally suspended. Six years later, the Exeter Police Department arrested Frese for comments he had pseudonymously posted in the online comments section of a newspaper article about a retiring Exeter police officer. The comments included statements that the retiring officer was "the dirtiest[,] most corrupt cop [Frese] ha[d] ever had the displeasure of knowing" and that the officer's daughter was a prostitute….

The court held that § 644:11 was constitutional under Garrison v. Louisiana (1964):

The Supreme Court, however, has upheld the criminalizing of false speech, explaining that deliberate and recklessly false speech "do[es] not enjoy constitutional protection." Thus, the state can "impose criminal sanctions for criticism of the official conduct of public officials" so long as the statements were made with "'actual malice'—that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not."

And the court held that the law wasn't unconstitutionally vague:

A "statute authorizes an impermissible degree of enforcement discretion—and is therefore void for vagueness—where it fails to 'set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.'"

We conclude that the statute at issue here provides adequate guidelines for law enforcement, and therefore passes constitutional muster. Frese argues that the statute is unconstitutionally vague, because different persons may have "different standards for determining what is and is not defamatory." But the statute provides reasonably clear guidance—defamatory statements are those false statements that "expos[e] any … person to public hatred, contempt or ridicule." Likewise, we doubt that reasonable persons will have much difficulty in ascertaining objectively whether a false statement exposes the victim to public hatred, contempt, or ridicule, even if the public is defined to include professional and social groups to which the victim belongs. Frese offers no hypothetical example of how a factfinder might struggle unduly to determine whether a given set of facts demonstrates the requisite tendency of the false remarks. Indeed, for centuries factfinders have made such determinations.

The parties also agree that section 644:11 adopts part of New Hampshire's common law defamation standard. Under the common law, "[w]ords may be found to be defamatory if they hold the plaintiff up to contempt, hatred, scorn or ridicule, or tend to impair [the plaintiff's] standing in the community." The incorporation of common law standards provides further guidance to law enforcement about the meaning of the statute, not least because the definition of defamation under New Hampshire common law has remained relatively consistent for over one hundred years, and has been regularly analyzed by courts and applied by juries.

Additionally, common law defamation in New Hampshire is subject to objective measurement, which further protects against arbitrary enforcement. Under New Hampshire common law, liability may be imposed only if "the defamatory meaning … [is] one that could be ascribed to the words by persons of common and reasonable understanding." …

A statute is impermissibly vague for lack of notice "only if it 'prohibits … an act in terms so uncertain that persons of average intelligence would have no choice but to guess at its meaning and modes of application.'" We conclude that the statute provides sufficiently clear notice. For the reasons described above, the language clearly defines and delimits its scope, such that it gives a person of "ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." …

Frese takes issue with section 644:11's definition of "public" to include "any professional or social group," which Frese claims does not consider "how small the group or how peculiar its views." Frese argues that the statute cannot provide adequate notice because "[d]ifferent professional and social groups will often have different, sometimes conflicting, standards for what constitutes defamation." The statute, Frese argues, "incorporates each of these" potentially disparate "standards as a yardstick for criminal conviction," and as such, makes it difficult for any person to determine what conduct the statute prohibits.

We are not convinced. First, the incorporation of the common law provides safeguards against imposing criminal liability for speech that offends the views of particularly niche or idiosyncratic groups, which in turn shields against any notice problems. As discussed previously, the common law objectivity standard requires that "the defamatory meaning … [is] one that could be ascribed to the words by persons of common and reasonable understanding." And section 644:11(I)'s knowledge requirement creates additional protection.

Moreover, in order for a statute to give fair notice, it need not map out what is prohibited with "meticulous specificity." It must only "delineate[ ] its reach in words of common understanding." Thus, while there is indeed some "breadth" and "flexibility" inherent in the scope of the statute, none of Frese's arguments persuade us that a person of average intelligence would have to "to guess" at section 644:11's meaning or the scope of the conduct it prohibits….

I think this is correct as a matter of current law. For my thoughts on the survival and revival of criminal libel law, see Part D of this post.

Judge Thompson concurred, but argued that Garrison should be overruled (by the Supreme Court, of course, not the First Circuit):

Ours is a country that touts a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." That commitment may well be profound; but it is not the whole story. And lately, one needn't look far for examples of speech curtailed or, by contrast, speech that seems to be wholly divorced from the truth but goes unaddressed by the law.

When, as has been the case in this country of late, the truth often seems up for grabs and objectively accurate facts are tossed aside in favor of alternative versions that suit a given narrative, drawing the line between truths and lies—and malicious lies at that—is exceptionally tricky. But also exceptionally important. And yet, increasingly, whether and where that line should be drawn as to some speech or other speech seems to depend on who's holding the pen. The significance of all this skyrockets when criminalizing this speech is on the table….

The troubling seditious-criminal-libel historical context that underpins a law like this one is well known to First Amendment scholars, advocates, and jurists—and perhaps most deeply felt by those who've had brushes with it. I will not explicate the ins and outs of that history here—and there is a great deal of important history to digest. For today's purposes, it suffices to say these laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials. True, that is not today's American system per se. But like it or not, that is where our system's roots lie, and even in view of the rightly heightened standards we deploy when reviewing laws that restrict speech, it is remarkable that we are still confronting laws criminalizing speech at all.

Perhaps the persistence of these laws owes to society-at-large's unawareness of or ambivalence to them. It's possible many believe criminal defamation is basically off the books; Garrison can be read to have been aimed at accomplishing as much, at least from a federal standpoint, in that it nixed as unconstitutional civil and criminal penalties for truthful statements about public officials, leaving room to sanction only those statements made with actual malice (knowledge of falsity or reckless disregard for the truth). But persist they do, with many states retaining their criminal defamation laws [citing laws in Idaho, Kansas, Michigan, Minnesota, New Hampshire, North Carolina, North Dakota, Oklahoma, Utah, Virginia, and Wisconsin].

And indeed, this is remarkable. Particularly so given the current political climate in this country, with "truth" at a premium. It seems to me that if these laws were robustly enforced, dockets in these states would be positively teeming with prosecutions. That's not what happens.

Why is that? Probably because there is no readily discernible boundary between what gossip or loose talk amounts to being criminal and that which does not. Instead, the boundary emerges case by case, lying solely in the eye of the charge-bringing beholder—or the ego of the person offended or called out by the speech. And this is troubling because it underscores the simple truth that a criminal defamation law can be wielded, weaponized by a person who disagrees with whatever speech has been uttered.

{I am mindful that not all criminal defamation prosecutions will be successful, and yes, as my colleagues note, malicious prosecution might in some instances exist as a means to pursue recourse for wrongful prosecution. But the fact remains that a great deal of damage could have already been done to the person targeted by an unsuccessful (or worse, malicious) prosecution, particularly depending on what exactly was said and done in the course of that prosecution—that bell, as they say, cannot be unrung.}

To those who might disagree, it strikes me as out of touch with reality to suggest these laws are not being selectively harnessed or that these laws aren't particularly susceptible to such use and abuse. And by virtue of their very existence, criminal defamation laws deter and chill speech—indeed, their existence represents a looming threat of criminal prosecution, which of course will cause many to think twice before speaking out. This is all the more so when, as in New Hampshire, a plea deal or successful criminal defamation prosecution would show up on a background check (and remember, criminal defamation defendants have no right to trial by jury and don't get court-appointed counsel). But "[f]ining [people] or sending them to jail for criticizing public officials not only jeopardizes the free, open public discussion which our Constitution guarantees, but can wholly stifle it."

It is not lost on me that proponents of criminal defamation laws see utility in having them as an alternative to civil suits to be deployed when, for example, an alleged defamer might be what we refer to as "judgment-proof," i.e., even if a favorable verdict resulted from a civil defamation suit, the defamer wouldn't have the cash available to cover any damages that were assessed. This assumes money damages are the best relief for a victim of defamation, and I cannot abide that premise. Does it not also invite criminal prosecution of people with less means? And critically, having a criminal defamation route enables an end-run around the important constitutional restrictions imposed in civil defamation cases. And I haven't spied any requirement that, to bring a criminal prosecution, one must demonstrate the criminal charge is being pursued because a civil suit just wouldn't cut it for some legitimate reason or another. This brings me back to the reality that criminal defamation laws are all too easily wielded as a silencing threat of punishment for speech.

By my lights, criminal defamation laws—even the ones that require knowledge of the falsity of the speech—simply cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech. And so I echo the concern voiced by Justice Douglas in Garrison, a concern as valid today as it was nearly sixty years ago: "It is disquieting to know that one of [seditious libel's] instruments of destruction is abroad in the land today."

Congratulations to Samuel R.V. Garland, who represented the state in this case.