On December 18, 2018, the American Civil Liberties Union and the ACLU of New Hampshire filed a federal lawsuit challenging New Hampshire’s criminal defamation law, which makes it a misdemeanor to intentionally and falsely disparage another person. The lawsuit was filed on behalf of Robert Frese, a resident of Exeter who has twice been arrested and charged with criminal defamation under the law.
Frese’s second arrest under the law happened in May, after he posted comments to a Seacoast Online article about a retiring police officer, accusing the officer of misconduct. He also wrote that Exeter Police Chief William Shupe “covered up for this dirty cop.” A few weeks later, the Exeter police filed a criminal complaint against Frese. The police complaint stated Frese “purposely communicated on a public website, in writing, information which he knows to be false and knows will tend to expose another person to public contempt, by posting that Chief Shupe covered up for a dirty cop.” The police ultimately dropped the charges.
The lawsuit argues that New Hampshire’s criminal libel law — and laws like it across the nation — violate the First Amendment, give the public far too little guidance on what may constitute a crime, and give law enforcement far too much discretion in deciding whom to prosecute. The complaint also states that such laws are unnecessary when civil lawsuits are fully capable of addressing the harms caused by defamation.
The Supreme Court imposed significant restrictions on criminal defamation laws in the 1960s, and a few justices signaled that criminal defamation should be abolished entirely. The court recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Despite this, the laws remain on the books in 25 states and the U.S. Virgin Islands. Penalties can range from $500 to $10,000 and/or 10 years in jail for certain offenses. Criminal convictions also carry collateral penalties, including potential immigration consequences and ineligibility for housing and employment opportunities.
Criminal defamation laws are disproportionately used against people who criticize public officials or government employees. One study identified 23 criminal defamation prosecutions or threatened prosecutions for the period from 1990–2002, 12 of which were deemed “political” and 20 of which involved public figures or issues of public controversy. Examples include a Kansas newspaper editor and publisher arrested, prosecuted, and fined for suggesting in a local paper that the county mayor lives in another county and a Kansas man charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem.
Prosecutions under criminal defamation laws are also increasing with the rise of online speech. The ACLU argues in this lawsuit that if the trend continues, criminal defamation laws could become regular tools for policing online discourse.