ACLU Files First Amendment Challenge to Criminal Defamation Law

CONCORD, N.H. — The American Civil Liberties Union and the ACLU of New Hampshire today 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.

“I never thought that speaking my mind would get me arrested,” Frese said. “America is the best country in the world because we have the right to free speech. Never in a million years would I think that what happened to me would happen in this country — it is utterly anti-American.”

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.

“Our client went to the internet to voice his grievances about the police only to be arrested by the police,” said Gilles Bissonnette, legal director at the ACLU of New Hampshire. “That is absurd, and a textbook example of the use and abuse of criminal defamation laws. Law enforcement should not have the power to crack down on free speech, especially when that speech is critical of law enforcement.”

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 is a relic from the days of the Star Chamber and the Sedition Act,” added Brian Hauss, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “These laws have no place in 21st-century American democracy. It’s time we toss such laws into the dustbin of history, where they belong.”

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 that if the trend continues, criminal defamation laws could become regular tools for policing online discourse.

The complaint can be found here: https://www.aclu.org/legal-document/frese-v-macdonald-complaint.

A blog post by Hauss on today’s filing can be found here: https://www.aclu.org/blog/free-speech/internet-speech/new-hampshire-police-arrested-man-being-mean-them-internet.

A map of criminal libel laws throughout the United States is available here: https://www.aclu.org/issues/free-speech/criminal-defamation