BOSTON (CN) — A man who was arrested for calling his local police chief a “coward” on Facebook provoked a sharp debate Thursday in the First Circuit over his claim that New Hampshire’s criminal defamation law is unconstitutionally vague.
The law makes it a crime to knowingly say something false that will subject someone to “hatred, contempt or ridicule” within the person’s “professional or social group.”
“How is law enforcement supposed to determine what would subject a person to hatred, contempt or ridicule?” U.S. Circuit Judge O. Rogeriee Thompson asked the parties assembled at the Boston courthouse this morning. “It’s odd in this political environment that that’s the standard.”
Assistant Attorney General Samuel Garland replied that it’s an “objective” standard because it’s based on “what a reasonable person would believe, not some hypersensitive person.”
But Thompson, an Obama appointee, had other questions. “What’s a social group?” she asked. “What are the boundaries of that?”
It’s “a group that a person would typically socialize with,” Garland answered, a response that didn’t seem to particularly impress the judges.
Chief U.S. Circuit Judge Jeffrey Howard noted that, under New Hampshire law, a group can qualify if it’s “respectable.” He asked, “Does ‘respectable’ have a definition?”
“I’m not sure,” Garland admitted. He suggested a Rotary Club or a church group.
“Doesn’t that give elevated protection to ‘recognized’ social groups and not others?” Thompson shot back.
But U.S. Circuit Judge William Kayatta seemed unimpressed. He described “hatred, contempt or ridicule” as “a classic 200-year-old formulation” of defamation and said that “if two of my neighbors hear something and think less of me, well, that’s my social group.”
The plaintiff in the case, Robert Frese, 66, lives in a trailer park in Exeter, New Hampshire. This is his second brush with the state’s criminal defamation law; in 2012 he was charged with calling someone’s life coaching business a “scam” on Craigslist, for which he was fined $372.
In 2016 Frese was charged with smashing the rear window of a neighbor’s SUV. He received a suspended sentence, but if he had been convicted on the new charge of calling the police chief a coward, the suspension could have been revoked and he could have been sent to prison.
The idea of criminal defamation developed as part of the “star chamber” proceedings against Henry VIII’s political enemies. In the U.S. it was originally seen as a less drastic alternative to dueling, but its popularity gradually waned due to the First Amendment and the availability of civil suits for libel.
Today 13 states still have criminal defamation 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.
Frese’s latest dustup began when he posted on a local newspaper’s Facebook page that Exeter Police Chief William Shupe was a “coward” who was “covering up for a dirty cop.”
The Exeter police arrested him, saying Frese broke the law because there was no evidence that his statement was true. But after the case generated local publicity, the New Hampshire Department of Justice stepped in and said the cops had used the wrong standard and that even if the statement were false, Frese shouldn’t be prosecuted if he believed it was true.
After the charges were dropped, Frese and the ACLU brought a lawsuit seeking to have the law struck down altogether. The ACLU also claimed that the law violated the First Amendment, but the judges focused solely on the vagueness issue.
In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — circumstances that the ACLU claims creates a conflict of interest when the person is being prosecuted for disparaging the police. Defendants also don’t get a court-appointed attorney or a jury trial.
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.
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.
In 1964 the Supreme Court upheld Louisiana’s criminal defamation law in a case where District Attorney Jim Garrison verbally attacked a number of judges. Garrison was famously portrayed by Kevin Costner in Oliver Stone’s 1991 film “JFK.”
In that case, the Supreme Court said truth should be a defense and that prosecutions for criticizing public officials require proving actual malice or reckless disregard of the truth. The ACLU claims that decision should be overruled, although it also says the New Hampshire law is unconstitutional in any event.
“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’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 added.
But Kayatta, an Obama appointee, seemed to think the two could be squared. He pointed out that a defendant “can only be guilty if he purposely communicates knowing it will cause ridicule. If he tells the jury he didn’t think it would result in ridicule, he gets off.” Kayatta also noted that if the police misuse the law, they can be sued for malicious prosecution.
But the ACLU’s attorney, Brian Hauss, countered that police “can always claim someone had knowledge.” And “in practice, with a poor defendant," Hauss continued, "the natural response is to plead guilty. There’s a power imbalance, especially with no jury trial.”
Hauss noted that in one case, a woman was convicted of defamation simply for claiming in court that a police search was illegal. The defamation charge “just got railroaded through,” he said.
By the end of the argument Garland sensed that the panel was divided and proposed a compromise. “If you’re not sure” what the words in the law mean, he suggested, “don’t just strike down the statute. Instead ask the New Hampshire Supreme Court to define those terms.”
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