First Circuit Trims First Amendment, Upholds New Hampshire’s Criminal Defamation Law
It's 2022 and somehow nearly half the nation still has some form of criminal defamation law on the books. This is a holdover from the days before the US went independent - laws that allowed (usually) the government to treat speech it didn't like as a criminal act.
Once the First Amendment went into effect, criminally prosecuting people for things they say should have been a concept relegated to the pre-Revolutionary past. Instead, the laws that remain in place are there because either they're unused or no one has challenged the constitutionality of the laws.
Where they do remain in place, they're often abused. And this abuse is most often perpetrated by government employees. This just makes sense. Government employees tend to know which laws they can misuse and most citizens assume the proper venue for libel allegations is in civil court.
The First Amendment still applies to defenses against criminal libel allegations, but the threat of prosecution (even if never pursued) is generally far more effective than the threat of a civil lawsuit, which requires the person making allegations to foot their own bill for litigation. When the government decides to use criminal defamation laws, it has access to theoretically unlimited funds obtained from taxpayers. That makes this the preferred route when government employees are offended by something someone says, since it's not their own finances on the line if they're wrong.
New Hampshire, one of the original colonies and first beneficiaries of constitutional rights and amendments, still has a criminal defamation law on the books. This law was used by law enforcement officials (namely, Exeter Police Chief William Shupe), who took exception to New Hampshire resident Robert Frese making social media posts and comments suggesting the police chief was corrupt" for covering up" for dirty Exeter police officers. Shupe's allegedly non-corrupt cops arrested Frese. The charges were ultimately dropped but Frese decided to challenge the constitutionality of the law, considering he'd now been arrested twice for supposedly violating it.
As of late last year, it appeared Frese's challenge would be successful. Oral arguments at the First Circuit Court of Appeals appeared to be going Frese's way, with judges suggesting the law's wording created a subjective standard for alleging violations, rather than an objective standard. In addition, as the ACLU pointed out in its contribution to Frese's challenge, the law violated other rights by making it far more difficult to defend against these charges by removing access to court-appointed attorneys and eliminating jury trials.
Unfortunately, those early impressions were misleading. The First Circuit Appeals Court has ruled [PDF] that the state's criminal defamation is constitutional, even if it does lend itself to abuse by public officials who are mad about online stuff.
This is the upshot of that decision:
Mindful of the Supreme Court's guidance that the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]" we conclude that Frese's allegations fall short of asserting viable constitutional claims.
Knowingly false statements are not protected by the First Amendment. But that's something normally handled in civil courts. Should false statements be considered a criminal act? Probably not, but the Appeals Court (very reluctantly, especially in the concurrence) says the state is still constitutionally sound since it only targets unprotected speech.
That limitation (citing Supreme Court precedent) means Frese's First Amendment challenge fails. The law, however, also allows cops to act as judge and jury, bringing misdemeanor charges without having to involve any level of judicial review and without the intervention of prosecutors. That the Exeter PD ultimately dropped the second set of charges under this statute doesn't appear to matter. Frese's Fourteenth Amendment claims are also foreclosed by the wording of the statute, which the Appeals Court says is narrow enough to survive constitutional scrutiny.
[W]e 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.
The court's end conclusion is this: the law may be easy to abuse but it probably wasn't abused here, at least in terms of Frese's first criminal charge. And with the second set of charges being dropped because they weren't supported under the wording of the statute, the law is still constitutionally valid.
Assuming Frese's 2018 prosecution to have been brought without reasonable cause to believe that Frese knew that his speech had been false, then it was certainly wrongful, as implied by its dismissal. But that wrong had little, if anything, to do with what Frese claims is the statute's vagueness. Certainly knowing" an assertion to be false is not a vague element. Nor, for the foregoing reasons, do we think that a reasonable person has much difficulty in ascertaining whether speech subjects a living person to public hatred, contempt, or ridicule and what a professional or social group" is in this context.
Judge Thompson's concurrence agrees with the majority but raises questions about the law itself, which the Appeals Court says it cannot find unconstitutional. This is the biggest question:
Can the continued existence of speech-chilling criminal defamation laws be reconciled with the democratic ideals of the First Amendment?
Probably not, says Judge Thompson, pointing out where these laws go wrong: their genesis in laws hundreds of years old that criminalized criticizing the ruling party.
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, see Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir. 2011), abrogated on other grounds by Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021), it is remarkable that we are still confronting laws criminalizing speech at all.
That's why this law should be kicked to the curb. Unfortunately, as composed and utilized by the state of New Hampshire, the Appeals Court can't find anything to rule it unconstitutional. The state should take the law off the books, especially considering its roots in preventing criticism of the government. But without a ruling telling it to ditch the criminal defamation law, there's nothing compelling the state government to delete it from the statutes. That task would require representatives to recognize it's in the public's best interests and act accordingly. And while some may be willing, it's unlikely there's an overwhelming majority of legislators willing to strike abusive laws from the books.
The laws persist. And they should generate plenty of criminal complaints. But they don't. And there's a good reason why they don't: they're most often deployed by savvy government officials who don't like what people have said about them.
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.
Speech will be stifled. That's a given everywhere these laws are still in place. And it will always lead to abuse because the entire point of the law is to silence people.
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.
That's the danger of leaving this law intact. But without a judicially sound reason to pull the plug on it, the Appeals Court is forced to find in favor of the state and the law it should have ditched decades ago.