This piece originally appeared in the Washington Examiner on October 12, 2023.
Criticizing public officials is practically a national pastime in America. Yet, in New Hampshire, the state with the motto of “Live Free or Die,” such a speaker risks criminal prosecution. Speakers in 16 other states do, too.
New Hampshire’s criminal libel law makes intentionally and falsely disparaging another person a misdemeanor if the communication “will tend to expose any other living person to hatred, contempt, or ridicule.” The state twice charged Robert Frese for violating this law. Frese’s most recent arrest came after he posted critical online comments about a local police chief, prompting the police to file a criminal complaint.
Although the police later dropped the charges, that’s almost beside the point: The fact that this “crime” exists at all harms the speech rights of anyone subject to it.
Represented by the American Civil Liberties Union and its state chapter, Frese sued the state’s attorney general in federal court, arguing that the law violated the First Amendment. After losing in the district and appellate courts, Frese petitioned the Supreme Court to hear his case. My organization, the Institute for Free Speech, filed an amicus brief urging the court to grant review.
Unfortunately, the court recently elected not to hear the case. This is a missed opportunity to correct a longstanding wrong.
Even though criminal libel laws are rooted in the English Star Chamber and bear a striking similarity to a portion of the heinous Alien and Sedition Acts of 1798, the Supreme Court has never ruled such laws unconstitutional. It should have taken Frese’s case and done so, removing this affront to free political speech from our legal landscape.
Government officials averse to criticism can, and do, exploit these laws to stifle unflattering speech. Yes, the standard for a conviction is high, based on the actual malice standard for civil defamation under the landmark New York Times Co. v. Sullivan case. Still, a prosecution can serve as a stiff punishment for legal speech. Hiring an attorney is expensive, and New Hampshire law doesn’t provide the indigent with an attorney for such a prosecution.
Circuit Court Judge O. Rogeriee Thompson, who felt compelled to uphold the law under Supreme Court precedent, wrote a concurring opinion warning that it was “out of touch with reality to suggest these laws are not being selectively harnessed or that these laws aren’t particularly susceptible to such use and abuse.” She noted that the decision to prosecute lies “solely in the eye of the charge-bringing beholder — or the ego of the person offended or called out by the speech.”
This vague law creates an environment that is hostile to a wide, unpredictable range of speech. Most crucially, its vagueness imperils core political speech rights. A citizen speaking out on an issue of public concern might avoid doing so, simply for fear of being prosecuted, even if the risk of prosecution in any given case is low.
Political speech is also particularly vulnerable because of the wide prosecutorial discretion these laws afford officials. The ACLU notes that authorities often use criminal defamation laws to prosecute those who have criticized public officials or government employees. The publicity of such prosecutions chills the speech of other, would-be speakers.
All those reasons make it imperative that the Supreme Court revisit the constitutionality of these laws.
In the 1966 case Ashton v. Kentucky , the court unanimously held that the common law version of criminal libel was too vague to be prosecuted, effectively eliminating common law criminal libel. But Ashton left the door open for criminal libel actions, so long as they are enacted by statute, don’t limit truth as a defense, and require “actual malice” for conviction.
It is long past time for the court to close that door.
The court in Ashton held that common law libel causes freedom of speech to suffer “under the guise of regulating conduct that is reachable by the police power.” This sound reasoning should extend to all forms of criminal defamation.
Unfortunately, the current court failed to capitalize on the opportunity to rule that such laws contradict the First Amendment by taking Frese’s case. The next time such a case makes its way to the court’s docket, I hope that the justices will end criminal libel laws for good.