by Ed Lyon
Most people are aware that slander and libel are civil torts for which they may be sued. In 1964, the U.S. Supreme Court set the standard of proof to be “actual malice” to prevail in civil libel cases.
Many states also have laws criminalizing the act of libel. Prosecutions for acts of criminal libel occur “about 20 times per year, and often lead to convictions,” according to Professor Eugene Volokh of the University of California at Los Angeles School of Law. Criminal libel prosecutions have occurred 25 times in New Hampshire from 2009 to 2017, with two of those cases being focused on New Hampshire citizen Robert Frese.
Frese’s first run-in as a defendant in a criminal libel prosecution ended with his conviction by a guilty plea, which cost him $372 of a $1,488 fine, presumably enough to cover court costs. The remainder of the fine was suspended.
Frese’s second encounter as a defendant with the criminal libel statute began when he identified an officer who wrote him a traffic ticket as “a dirty cop,” then followed up by stating on an internet post that the town’s police chief was too cowardly to do anything but cover it up. He was promptly arrested and charged with criminal libel.
New Hampshire Assistant Attorney General Elizabeth Lahey defends the state’s criminal libel law because it requires prosecutors to prove Frese knew his statements about the traffic cop and police chief were false when he made them. This is a higher, more difficult burden of proof than the civil libel’s actual malice burden of proof. Since the cops had no basis to think Frese believed the statements he made were false, there was no prosecutable case and the charge against Frese was dropped.
The American Civil Liberties Union (“ACLU”) has filed suit on Frese’s behalf. ACLU lead counsel Brian Hauss stated that New Hampshire’s libel law and similar criminal libel laws in other states violate the First Amendment’s free speech guarantee. The criminal libel statutes’ “fundamental defect is that they’re unconstitutionally vague,” stated Hauss.
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