Does It Make Sense To Have Libel Be A Criminal Offense?

from the watch-out-what-state-you're-in dept

Fri, Dec 5th 2008 5:34am — Mike Masnick

For the most part, libel is a civil issue between the person who made the libelous statements and the person harmed by those statements. However, there are some states that do have criminal libel laws on the books -- though they're rarely enforced. The state of Colorado, however, apparently is willing to use the law, and the law itself seems fairly broad. It was written over a century ago and says that "tending to blacken the memory of one who is dead" or to "expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule" counts as libel. Libel should be about making materially false statements about someone. If you're exposing the real natural defects of someone, it's difficult to see how that should be considered libel.

Either way, that law is being tested once again, as a man is being charged with criminal libel for posting disparaging messages about his ex-girlfriend (and mother of his child) and her lawyer on Craigslist. The guy says he was only venting -- but it certainly does sound like he was libelous in what he posted. The question, though, remains whether it makes sense for the lawsuit to be criminal, or a civil issue to be taken up directly between the libeled parties and the guy who posted the remarks. Making it a criminal charge seems like a waste of gov't and taxpayer resources concerning a dispute between parties who should be able to settle things via a civil lawsuit.

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Filed Under: colorado, criminal libel, libel

39 Comments

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Ajax 4Hire, 5 Dec 2008 @ 5:45am

The US Constitution, 1st amendment clearly states that
1st Amendment (1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Criminal Offense for libel sounds like it falls under the 1st amendment "freedom of speech" clause. (and BTW, it is NOT "free speech").

Oddly enough, the US Constitution 1st amendment is also used to force religious observance out of the public space; whether the public space is owned by the government or not.

also, you're a doody head! Libel that.
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hegemon13, 5 Dec 2008 @ 6:07am

Or...
"Making it a criminal charge seems like a waste of gov't and taxpayer resources concerning a dispute between parties who should be able to settle things via a civil lawsuit."

Or, they could settle it without a lawsuit at all. What a novel idea!
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Cygnus, 5 Dec 2008 @ 6:08am

It does seem odd to me that libel is a criminal offense in a jurisdiction.

However, as with any law, the law in question here is simply an expression of the values of the community that enacted the law. I can see how a community might find it useful to put the resources of the state behind the prevention of an individual's intentional harmful conduct.

Although odd to those of us in jurisdictions that don't criminalize libel, I imagine it's not much different that how non-community property state citizens feel about the eight community property states in the US.

To Ajax: the freedom of speech granted under the First Amendment is not unfettered and is subject to reasonable restriction. Consider, for example, that yelling "fire" in a movie theater is rightfully unlawful.
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Anonymous Coward, 5 Dec 2008 @ 6:13am

I can see that law making a criminal out of most anyone. After all, if you call someone and @$$hole and they aren't really an @$$hole, then you are now guilty of libel. Of course proving they are or are not an @$$hole in criminal court could be fun to watch.
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Gabriel Tane (profile), 5 Dec 2008 @ 6:19am

Re: The US Constitution, 1st amendment clearly states that
"Congress" shall make no law....

This is a state law. It would be up to the parties injured by this law to elevate the case to the supreme court to have the law ruled as unconstitutional.

For the most part, you're right tho... The law should not stop you from saying what you think. However, that's why libel and slander are usually (as Mike points out) a civil issue. The law can't stop you from lying about me to hurt my character, but I can sue you if those lies cause damage. Which is Mike's point. It's not the government's place to enforce civil morality (don't tell lies)... it's our place to do so amongst ourselves. The law should only serve to give us the structured forum to settle these injuries peacefully.
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suzerain, 5 Dec 2008 @ 6:25am

First, the post should be taken in the context that it is written by nonlawyer with little understanding of the law.

Truth is a defense to libel.

So whatever statements that are madde have have to be false. You cannot say that I committed libel is I say that you are short if you are in fact short.

In addition, the analysis has to be tempered to take in cosnideration whether the person is a public or private figure. If it is a private figure, such as appears to be the case here, there are a lot more protections in place.

I guess in some ways, simplistic statements that do not even attempt to probe whether the underlying issues in the matter are essential to this site since it guarantees debate.
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Anon, 5 Dec 2008 @ 6:37am

On the other hand
While the Colorado law seems overly broad, words can be harmful and produce more damage than a strong punch in the nose. The man who claimed to be "venting" was quite likely assaulting his former girlfriend in a way he thought he would be immune to punishment. However, in this case, it sounds like a bad law being put to use in a good cause. Better to get rid of the bad law and craft a good one. BTW, there are plenty of laws criminalize certain forms of speech.
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Overcast, 5 Dec 2008 @ 6:54am

I thought 'libel' meant you could actually prove there was 'damage' to your 'reputation' done.

For the girlfriend - who knows. For the lawyer; I'm not sure there's much that really can be done to 'damage' the reputation of a lawyer, they do that more efficiently than anyone else could themselves. -- Hey, I'm just speaking the truth.. I didn't give lawyers a bad rep.
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Droslovinia, 5 Dec 2008 @ 7:50am

Criminal?
This is one area where libel ought to be criminalized. Abuse of many sorts, including mental and verbal, is a common occurrence in domestic disputes. If you're seeking to deliberately hurt your ex in any way, there's a fairly good chance that you are committing a crime, even if you're enough of a wimp to hide behind "free speech" while doing it! Don't forget that there's also a child involved here, and what damage might this jerk be doing to him or her through these actions? You can't sue to restore a child's faith in his or her mother!

Also, there are some places where libel does not necessarily have to be false - just intentionally malicious. Even true words, when used to hurt another person, can be criminal. While civil actions might enable you to hit someone in the pocketbook, that's often not what it takes to get an abuser to stop.
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Anonymous Coward, 5 Dec 2008 @ 8:10am

In response to the headline, perhaps not...but as in any area governing individual conduct, particularly egregious acts can result in both civil and criminal liability.

For example, the act of homicide (criminal) is likewise subject to a possible cause of action based upon wrongful death (civil). Mr. OJ readily comes to mind as one of the most extreme examples. We know he was found not guilty in the criminal case, but was found liable under the civil case.
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the truth will set you free, 5 Dec 2008 @ 8:18am

Re: Criminal?
"Even true words, when used to hurt another person, can be criminal. "

Care to elaborate ?
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jury nullification, 5 Dec 2008 @ 8:22am

sticks n stones
So, some moron submits a post to craigslist.
How did the offended party become aware of said post ?

This whole story sounds almost laughable. It would be nice if people could act like adults ... oh well.

And yes, the law should be removed as it does not make any sense.
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Anonymous Coward, 5 Dec 2008 @ 8:26am

Re: sticks n stones
And understand of the the law comes from your years of..., because you have a degree in... oh...
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DT, 5 Dec 2008 @ 8:41am

Re: Re: Criminal?
Not sure if this is what he's talking about specifically, but here's an extreme example that would validate his statement.
Just because a child was the product of an unplanned conception doesn't give the parents the right to scream at that child daily (or ever), "I never wanted you, I wish you never came into my life!" It might be true, but very likely criminal.
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anymouse, 5 Dec 2008 @ 8:41am

We ain't in Colorado anymore Dorothy
Suzerain said, "Truth is a defense to libel." which would normally be the case with civil libel laws, however if you read how the Colorado law is written, it doesn't appear to matter if the statements are true or not.

"expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule"

So if I said JimBob is a Puppy Killer (lets assume JimBob is a vet, and putting 'strays' down is part of his job), what I have said is factually true. However based on the Colorado law, I have now exposed JimBob to possible public hatred, contempt, and ridicule, and I could therefore be charged with Criminal Libel, even though I have spoken the truth.

IANL, so just my .02 (.0002 adjusted for current economy)
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Anonymous Coward, 5 Dec 2008 @ 8:53am

Re: Re: sticks n stones
"And understand of the the law comes from your years of..., because you have a degree in... oh..."

I was not aware that one needed to be a lawyer in order to have an opinion about the law. When did this happen ?

As you have demonstrated, one does not need command of the english language in order to post on a blog.
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George, 5 Dec 2008 @ 9:01am

Anyone else noticed this?
Elections ad campaigns are full of Libel or at least half truthes. So how can you sue someone when our leaders and potential leaders are doing it to each other?
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George, 5 Dec 2008 @ 9:01am

Anyone else noticed this?
Elections ad campaigns are full of Libel or at least half truthes. So how can you sue someone when our leaders and potential leaders are doing it to each other?
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Anonymous Coward, 5 Dec 2008 @ 9:12am

Re: Or...
Allow me to welcome you to the 21st century... lol.
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Anonymous Coward, 5 Dec 2008 @ 9:36am

Re: Anyone else noticed this?
The law only applies to the little people.
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Anonymous Coward, 5 Dec 2008 @ 10:25am

Re: Re: Re: sticks n stones
Oh no, you attacked my typos. Scary. To have a good opinion about law I would expect some sort of study of the law or experience in it. Do you get your legal advice from wikipedia?
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Steve, 5 Dec 2008 @ 11:15am

Re: Re: The US Constitution, 1st amendment clearly states that
A state law can't take away rights granted at the federal level. I'm not familiar with Colorado's constitution, but it's also possible that the law could be found to violate that as well as the 1st amendment.

Unless a higher court rules that the law *is* constitutional first, the lowest court in the smallest town can rule that it is unconstitutional. Such a ruling would not create a binding precedent on other jurisdictions, so in this case the charges could be dismissed, and somebody else could still be convicted of similar charges in a neighboring jurisdiction. A ruling that requires the entire state to recognize the law as unconstitutional would have to come from a court with jurisdiction over the entire state. That could be a state court, or a federal court.
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Susan, 5 Dec 2008 @ 11:19am

Of course libel is criminal!
Why should a person be able to spread lies to a massive audience . . . and get away with it?! Would any of you commenters like someone to say all sorts of untruths about YOU, raising doubts in the minds of your employers, relatives, friends, acquaintances and strangers? Words are powerful--duh!--and can indeed hurt people deeply. Anyone who says otherwise and stands up for the right to say anything at any time--no matter how vulgar, hateful, inflammatory or false--needs to come out of their fog. Better yet, they should sign a release allowing everyone to spread lies about THEM on the Web. THEN we'd see them change their tune about "free speech!"
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BTR1701, 5 Dec 2008 @ 11:45am

Re: Re: The US Constitution, 1st amendment clearly states that
> This is a state law.

Doesn't matter. The 14th Amendment incorporates the states into the federa constitutional umbrella regarding violations of the Bill of Rights.

Therefore it's just as illegal for the state government to violate the 1st Amendment as it is for the federal government.
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Easily Amused, 5 Dec 2008 @ 11:46am

re: #6
It is difficult not to chuckle at someone who insults the intelligence of an author and his readers by implying that the Law is the sole domain of lawyers, and then comes up with gems of insightful speech such as:

"So whatever statements that are madde have have to be false. You cannot say that I committed libel is I say that you are short if you are in fact short."
Libel should be limited to civil action, period.
A situation (such as the above 'puppy killer' example) where someone uses a true statement to cause another person harm should be treated as harassment, not libel.
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another mike, 5 Dec 2008 @ 11:47am

right target at least
At least the girlfriend's lawyer is suing the correct target. Read: not Craigslist. Craig just provided the platform; it's like loaning someone a soapbox. If there's an issue with what's being said, take it up with the person speaking.
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BTR1701, 5 Dec 2008 @ 11:51am

Re: Prior Restraint
> the freedom of speech granted under the
> First Amendment is not unfettered and is
> subject to reasonable restriction.

There's nothing reasonable about this Colorado law's restrictions. In fact, it flies in the face of 200+ years of 1st Amendment jurisprudence. The Supreme Court ruled long ago that truth is the ultimate defense to a libel charge and that any law to the contrary violates the 1st Amendment. Well, here we have Colorado saying that it doesn't matter if what you say is true if it blackens the memory of a dead person or it exposes someone's nature defects. That alone would cause this law to fail a 1st Amendment challenge. The only reason it hasn't happened to date is that no one has bothered to pursue a case against it.

> Consider, for example, that yelling "fire" in a
> movie theater is rightfully unlawful.

No, it's not unlawful to yell "fire" in a crowded theater. If there's really a fire, it's perfectly appropriate to warn the patrons of it.

The "clear and present danger test" (to which you are referring with your theater comment) only says that the government may place prior restraint on speech when there is a clear and present danger of imminent death or serious bodily injury as a result. That's hardly the case with a person who publishes an article about someone who is long dead that casts them in an unflattering light.
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another mike, 5 Dec 2008 @ 11:53am

Re:
There's only two lawyer jokes. All the rest are true stories.
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BTR1701, 5 Dec 2008 @ 11:54am

Re: Truth
> First, the post should be taken in the context
> that it is written by nonlawyer with little
> understanding of the law. Truth is a defense
> to libel.

Not according to this Colorado law. That's what makes it unconstitutional.

Oh, and I am a lawyer.
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BTR1701, 5 Dec 2008 @ 11:57am

Re: Re: Re: Criminal?
> Just because a child was the product of
> an unplanned conception doesn't give the
> parents the right to scream at that child
> daily (or ever), "I never wanted you, I wish
> you never came into my life!" It might be
> true, but very likely criminal.

In that case, it's the constant screaming at the child that's abusive, not the actual words themselves. Screaming *anything* at a child all day is child abuse. No 1st Amendment issues there at all.
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BTR1701, 5 Dec 2008 @ 12:01pm

Re: We ain't in Colorado anymore Dorothy
> "expose the natural defects of one who is
> alive, and thereby to expose him to public
> hatred, contempt or ridicule"

> So if I said JimBob is a Puppy Killer (lets assume
> JimBob is a vet, and putting 'strays' down is
> part of his job), what I have said is factually
> true. However based on the Colorado law, I have
> now exposed JimBob to possible public hatred,
> contempt, and ridicule, and I could therefore
> be charged with Criminal Libel, even though I
> have spoken the truth.

Well, not really, since being a vet and killing puppies isn't a natural defect.

A more accurate example would be if you were Jim Bob's wife and during an acrimonious divorce you revealed that Jim Bob hasn't been able to get it up for three years. That's a natural defect that would expose him to ridicule, and according to this Colorado law, it would be criminal act to reveal it, even though it's true.
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Easily Amused, 5 Dec 2008 @ 12:03pm

re: #23
Susan- you should try reading about the difference between being charged with a criminal offense, and a civil lawsuit.
No one here is advocating the right to say anything about anyone, anywhere, without repercussions.
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BTR1701, 5 Dec 2008 @ 12:03pm

Re: Of course libel is criminal!
> Why should a person be able to spread lies to
> a massive audience

On the other hand, why should someone be arrested for saying something that's true?
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known coward, 5 Dec 2008 @ 12:20pm

Re:
but according to the statue, truthiness or not does not apply, From the sited post in the article:

"Colorado's libel statute, dating to the 19th century, allows criminal prosecution for speech "tending to blacken the memory of one who is dead" or to "expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule."

if someone is a scalewag, and is called such, it still will "blacken his name" (which is a fairly racist concept if you think about it). So i do not think the truth is a defense here.
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nasch, 5 Dec 2008 @ 1:15pm

Re:
Actually according to that law, you would be guilty of libel if they *are* an @$$hole. Exposing their natural defects.
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Anonymous Coward, 5 Dec 2008 @ 1:17pm

Re: Re: Re: Re: sticks n stones
"Oh no, you attacked my typos. Scary. To have a good opinion about law I would expect some sort of study of the law or experience in it. Do you get your legal advice from wikipedia?"

Sorry to have scared you, but it was funny.
Where do they get people to serve on a jury ? Should they only select those that have studied law or have experience in the field ? Or should people not have any opinion about any law in order to serve on a jury ?
Please help me, I'm so confused.
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Anonymous Coward, 5 Dec 2008 @ 1:47pm

Re: Re: Re: Criminal?
Strangely that's covered under domestic abuse laws in the state of Iowa, and not under lible laws.
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Mark Jones, 17 Dec 2008 @ 11:14am

Libel a criminal offense
Attacking another person with a knife, gun, bomb or other weapon is a criminal offense, as it should be. Using words can be every bit as damaging. The malicious or reckless use of words can destroy a person's reputation, career, health and very life.

Spreading defamatory comment can be as vicious a crime as savaging a person with a carving knife and leaving him for dead on the ground. This form of abuse is often hidden from view, but that does not take away from its perniciousness. Consequently, it should most definitely be part of the criminal code of law.

If there were no criminal protection against assault, battery and murder with a weapon, there would still be public outcry and action against it. On the other hand, murderers who use words are well aware that they may do so in total security and with no fear of any reprisal whatever.
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pops, 29 Dec 2008 @ 1:53am

Re: Re: Truth
what if you post on craigslist rant and raves and mention a name and employer, but nothing said is false or incriminating, just that they have a fat ass
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