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‘Disinformation’ can be a crime, 1st Circuit rules

The decision upholding one state’s criminal defamation law could become a vehicle for the Supreme Court to expand free speech.

BOSTON (CN) — New Hampshire lawmakers did not run afoul of the Constitution in making it a crime to ridicule people with false statements, the First Circuit held Tuesday, but a concurring judge said it’s time for the Supreme Court to overrule its precedent in this area.

“The case could be a vehicle for the Supreme Court to revisit the doctrine of criminal defamation for the first time in more than 50 years,” said Jeffrey Hunt, a First Amendment expert at Parr Brown in Salt Lake City, Utah.

It was in 1964 that the Supreme Court held defamation can be a crime while looking at the prosecution of New Orleans District Attorney Jim Garrison for verbally attacking a number of judges. Garrison was famously portrayed by Kevin Costner in Oliver Stone’s 1991 film “JFK.”

In a concurring opinion Tuesday, however, U.S. Circuit Judge O. Rogeriee Thompson called it time to revisit that idea.

Such laws “cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech,” Thompson opined.

“These laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials,” she added. “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 … abuse.”

The ruling comes less than three months after the Department of Homeland Security disbanded its Disinformation Governance Board, which had attempted unsuccessfully to federalize the policing of false statements.

Today's case out the New Hampshire Supreme Court involves a comment posted online to a newspaper article. Robert Frese, 67, who lives in a trailer park in Exeter, accused the police officer described in the piece of being corrupt, and he said the officer's daughter was a prostitute.

After he was arrested for the comment, state law said he wasn’t entitled to a jury trial or a court-appointed lawyer. Ultimately, however, the charges were dropped. Frese and the ACLU in turn brought a lawsuit to strike down the law proscribing false statements that expose someone to “public hatred, contempt or ridicule.”

On the First Amendment issue, the First Circuit said it was bound by the Supreme Court’s 1964 precedent. The 27-page ruling by U.S. Circuit Judge Jeffrey Howard also rejects the ACLU’s claim that the law was unconstitutionally vague.

The statute “provides adequate guidelines for law enforcement,” Howard wrote. “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.”

Frese was also charged in 2012 and had to pay a $372 fine after he called someone’s life-coaching business a “scam” on Craigslist,. The police claimed there was no evidence that his statements were true, but the New Hampshire Department of Justice stepped in after the case generated local publicity. It said that, even if the statements were false, Frese shouldn’t be prosecuted if he believed they were true.

Criminal defamation laws developed as part of the “star chamber” proceedings against Henry VIII’s political enemies. In the U.S. they were originally seen as a less drastic alternative to dueling, but their popularity gradually waned due to the First Amendment and the availability of civil suits for libel.

Today 13 states still have such laws: Idaho, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia and Wisconsin. Another dozen or so states criminalize hate speech against minorities.

Michigan, Oklahoma and Virginia specifically prohibit questioning a woman’s chastity, although the fine for calling a woman a slut in Oklahoma is only $25.

In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — which the ACLU claims creates a conflict of interest when a person is accused of disparaging the police.

A common criticism of criminal defamation laws is that they’re frequently used to silence political opposition, as they were in Henry VIII’s day. A study in a Texas law review found that nearly half of such prosecutions are “basically political,” and another study of 77 cases from 1965 to 2002 found 68.8% were about public figures and matters of public concern, with cops and politicians being the most frequent complainants.

“It’s hard to square the concept of seditious criminal libel embedded in the New Hampshire statue with our modern conception of the First Amendment and its robust protections for political speech,” Hunt said.

In one recent case in Georgia, a woman was arrested and put in jail after she griped on Facebook that her husband, a sheriff, wouldn’t go out and buy Tylenol for her child who had the flu. The case was thrown out because Georgia’s criminal defamation law had previously been repealed.

According to the ACLU, prosecutions for criminal defamation are on the increase as a result of social media, which makes it easier for police and others to know who is criticizing them — a development highlighted by Thompson in her concurrence.

“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,” wrote Thompson, an Obama appointee.

“There is no readily discernible boundary between what gossip or loose talk amounts to being criminal and that which does not. … 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.”

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