Fifth Circuit Affirms Just Hours After Oral Argument: Criminal Libel Arrest for Criticizing Police Officer …

was unconstitutional.

Here's a slightly edited version of my post on the decision below, which the Fifth Circuit affirmed last week without a detailed opinion, on the afternoon of the day the case was argued. (My First Amendment Amicus Brief Clinic students Valentino Gorospe, Katarina Rusinas, and Asim Zaidi and I filed an amicus brief supporting plaintiff, who ultimately prevailed.) Plaintiff is represented by William Most and Hope Phelps of Most & Associates.

[* * *]

Louisiana's criminal libel law was repealed in 2021, but even before that it had been held unconstitutional as to prosecutions for libels of public officials, and more broadly as to prosecutions for libels on matters of public concern. Judge Jane Triche Milazzo's opinion in Rogers v. Smith (E.D. La.) held that an arrest for allegedly libeling a police officer violated the Fourth Amendment (and also allowed a First Amendment retaliation claim and some other claims to move forward):

This case arises out of the arrest of Plaintiff Jerry Rogers for criminal defamation. Defendants are St. Tammany Parish Sheriff Randy Smith, Chief Danny Culpeper, and Sergeant Keith Canizaro in their individual and official capacities. Plaintiff alleges that he worked for the St. Tammany Parish Sheriff's Office ("STPSO") from 1998 to 2009 before leaving for other employment. On July 14, 2017, Nanette Krentel was murdered in St. Tammany Parish, and her murder remains unsolved. Plaintiff followed the news coverage of the murder investigation and, based on his personal experience, became critical of some of the actions taken by the STPSO. He began communicating with Krentel's family members by email about his concerns. Specifically, Plaintiff was critical of the lead investigator, Detective Daniel Buckner.

At some point, the STPSO became aware of the emails and began investigating their source. Plaintiff alleges that upon discovering that Plaintiff was the author of the emails, the STPSO sought the advice from the district attorney's office ("the DA") and was advised that Louisiana's criminal defamation law, Louisiana Revised Statutes § 14:47, had been declared unconstitutional as to public officials and therefore charges against Plaintiff would be unconstitutional. Despite this, Defendants arrested Plaintiff for criminal defamation anyway.

On September 16, 2019, Canizaro was granted an arrest warrant for Plaintiff for violation of Louisiana Revised Statutes § 14:47. In the affidavit for the arrest warrant, Canizaro certified that Rogers's emails referred to the lead investigator as "clueless," provided false information regarding the investigator's experience and ability, and made derogatory remarks about him and others. Plaintiff alleges that the affidavit also stated falsely that Krentel's family requested assistance in identifying the author of the emails. The affidavit did not include the DA's admonition.

Plaintiff was arrested on September 16, 2019 and released on bail the same day. Ultimately, the Louisiana Department of Justice declined to prosecute the criminal charge against him….

Defendants admit that Louisiana's criminal defamation statute has been held unconstitutional in the context of criticism of the official conduct of public officials. Garrison v. State of La. (1964) ("[W]e hold that the Louisiana [criminal defamation] statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials."); State v. Snyder (La. 1972) ("We hold R.S. 14:47, 48, and 49 to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals who are engaged in public affairs."). They argue, however, that because the defamed party in this case was STPSO Deputy Detective Buckner—who they argue is not a public official—the case law declaring the statute unconstitutional is inapplicable and the right was not clearly established….

[But] both the Louisiana Supreme Court and the Fifth Circuit have held that a police officer is a public official. Defendants suggest that because there is no case directly addressing whether a police officer is a public official in the context of Louisiana's criminal defamation statute, then the constitutional right was not clearly established. The Supreme Court has held, however, that there need not be "a case directly on point." Rather, "existing precedent must have placed the statutory or constitutional question beyond debate." Here, it is well-settled in Louisiana law both that a police officer is a public official and that Louisiana's criminal defamation statute is unconstitutional as applied to public officials. Indeed, prior to its repeal in 2021, the law was included in the Unconstitutional Statutes Biennial Report to the Legislature in 2016, 2018, and 2020….

In addition, Plaintiff also presents evidence that the DA specifically told Defendants that a police officer is a public official and that Plaintiff's arrest would be unconstitutional. In his deposition, Defendant Culpeper admitted that he was specifically told by the DA's office that it would be unconstitutional to arrest Plaintiff. STPSO Captain Gaudet likewise testified that the decision to arrest Plaintiff was made after being informed that the criminal defamation statute was unconstitutional by the DA's office.

Finally, issuance of a warrant does not guarantee qualified immunity where "on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue." This Court finds that no reasonable officer could have believed that probable cause existed where the unconstitutionality of Louisiana's criminal defamation statute as applied to public officials has long been clearly established and where the officers had been specifically warned that the arrest would be unconstitutional….

Notably, the warrant application for Plaintiff's arrest omitted key information when it failed to advise the judge regarding the DA's position that the arrest would be unconstitutional. Both the judge and Sheriff Smith testified that the information provided by the DA should have been included in the affidavit in support of the arrest warrant. Accordingly, the fact that Defendants arrested Plaintiff pursuant to a warrant does not protect them from liability….

Plaintiff correctly argues that there was no probable cause for his arrest. Accordingly, Plaintiff is entitled to summary judgment on his false arrest and false imprisonment claims under both federal and state law.

Note that a properly crafted criminal libel law, for instance one limited to knowing lies or statements made knowing that they are very likely false (tracking the "actual malice" standard applicable in civil cases), would likely be constitutional, even applied to speech about government officials. But Louisiana law had never been revised to comply with the First Amendment rules set forth starting with New York Times v. Sullivan, and had thus been invalidated as unconstitutionally overbroad, at least as to speech about public officials or speech on matters of public concern.