New Hampshire Sued Over Criminal Defamation Law Abused To Arrest Law Enforcement Critic

from the if-I-had-a-hammer,-I'd-swing-at-the-public dept

Criminal defamation laws are stupid. But they're more than stupid: they're harmful. Plenty of entire countries still have them. But those countries don't have a First Amendment. With the First Amendment in place, it makes little sense to criminalize speech that can be handled through civil litigation. Nevertheless, these outdated laws are still on the books. In some cases, courts have already found them unconstitutional, but legislators seem unwilling to remove laws that are only ever abused by the government.

Due to this combination of laziness and self-interest, half the country still allows the government to arrest people for engaging in alleged defamation. One of those 25 states is New Hampshire, where the ACLU is now working to have the law ruled unconstitutional.

The case stems from the arrest of New Hampshire resident Robert Frese. Frese was hauled in by Exeter cops for calling the Exeter police chief "corrupt" and saying that he had "covered up" for dirty Exeter cops. The arrest of Frese for criticizing Exeter law enforcement did nothing to undermine either of his claims. If anything, it just made Exeter cops look dirtier and Police Chief William Shupe look more corrupt.

The criminal defamation charges ended up being dropped by the prosecutor, who found the charge wasn't worth pursuing. That ended this criminal prosecution under the stupid state law, but it didn't get rid the stupid state law that allowed Police Chief Shupe to retaliate against Frese in the first place.

That's where the ACLU comes in. Suing on behalf of Frese (and New Hampshire residents in general), the ACLU points out in its lawsuit [PDF] that criminal defamation laws are mainly used by government officials to shut down criticism or otherwise punish members of the public.

Nationally, criminal defamation charges are disproportionately filed against people who criticize public officials or government employees, especially law enforcement officers. 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. George C. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. L. & Pol’y 433, 467 (2004) (citing Russell Hickey, A Compendium of U.S. Criminal Libel Prosecutions: 1990-2002, Libel Defense Resource Center Bull., Mar. 27, 2002, at 97)). Another study, focusing on Wisconsin, found that 39 percent of criminal defamation prosecutions involved either public officeholders or government employees, including numerous charges of sexual misconduct by law enforcement and probation officers. David Pritchard, Rethinking Criminal Libel: An Empirical Study, 14 Comm. L. & Pol’y 303, 327– 33 (2009).

More specific examples can be found at the ACLU's website:

The editor and publisher of a small newspaper in Kansas were convicted of criminal defamation after the paper published an article suggesting that the mayor lived in another county and was therefore ineligible for public office. A Massachusetts woman was convicted of criminal defamation in New Hampshire after she claimed that a coffee shop’s employees spit in police officers’ coffee. And a Kansas man was charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem…

Keeping an obviously-unconstitutional law on the books gives government more hammers to deploy against pesky nails who won't keep their heads down. Citizens -- who rarely have the power to remove laws from the books -- continue to be the victims of bad lawmaking and the bad lawmakers who benefit from them.

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Filed Under: 1st amendment, criminal defamation, criminal defamation law, defamation, free speech, new hampshire
Companies: aclu


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  1. icon
    That Anonymous Coward (profile), 26 Dec 2018 @ 2:55pm

    Petty people shouldn't be elected into office.

    link to this | view in thread ]

  2. icon
    Killercool (profile), 26 Dec 2018 @ 3:39pm

    Re:

    ...You do know there would be, like, five politicians left, right?

    Not saying that's a bad thing, just pointing it out.

    link to this | view in thread ]

  3. identicon
    Anonymous Coward, 26 Dec 2018 @ 3:54pm

    Re: Re:

    5? that many? really?

    I find it hilarious when people say "ah but if you couldn't make a vast profit / be corrupt then business people wouldn't seek political power".

    GOOD. those type of scum shouldn't BE in power, since they're self-serving.

    I'd rather have someone that doesn't know the job in office that has to learn as they go, than someone that knows what they SHOULD be doing, but just steals as much as they can before taking a cushy job with Comcast etc.

    i.e. Ajit Pai.

    link to this | view in thread ]

  4. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 Dec 2018 @ 5:41pm

    Section 230 emptied my sister, burned down my copyrights, pirated my bank account and raped my house.

    Russians would never gave been able to illegally publish my self-help books in YouTube viral videos if it wasn't for Section 230.

    link to this | view in thread ]

  5. identicon
    Anonymous Coward, 26 Dec 2018 @ 7:11pm

    Re:

    And then Section 13 came along, and everything was right with the internet once again!

    link to this | view in thread ]

  6. identicon
    DOlz, 26 Dec 2018 @ 7:58pm

    Isn’t New Hampshire’s state motto "Live Free or Die”? Guess it’s an irony free state.

    link to this | view in thread ]

  7. identicon
    Anonymous Coward, 26 Dec 2018 @ 9:22pm

    Re: all you’ve ever been

    You can’t even fail properly.

    link to this | view in thread ]

  8. identicon
    Smartassicus the Roman, 26 Dec 2018 @ 9:33pm

    Justa Thought I Thunk

    Two words: Jar head.

    link to this | view in thread ]

  9. icon
    That One Guy (profile), 26 Dec 2018 @ 11:16pm

    Re: Re: all you’ve ever been

    I'm almost positive that that was someone mocking one of our resident trolls rather than the troll in question, but as I took it as troll baiting I at least flagged it anyway.

    link to this | view in thread ]

  10. identicon
    Anonymous Coward, 26 Dec 2018 @ 11:59pm

    Re: Re: Re: all you’ve ever been

    You mean that wasn't John Smith?

    Could've fooled me...

    link to this | view in thread ]

  11. identicon
    Anonymous Coward, 27 Dec 2018 @ 5:24am

    Of course, cops used to say "it's just the internet" or "turn off your computer" to people who had similar concerns.

    link to this | view in thread ]

  12. identicon
    Anonymous Coward, 27 Dec 2018 @ 7:43am

    Re: Re: Re:

    Or - we could have someone in office that both does not know what he is doing and is a grifter - double plus good!

    link to this | view in thread ]

  13. identicon
    Anonymous Coward, 27 Dec 2018 @ 7:44am

    Re:

    Or they just want you to die?

    link to this | view in thread ]

  14. identicon
    David, 27 Dec 2018 @ 9:26am

    Re: Re: Re: Re:

    Or - we could have someone in office that both does not know what he is doing and is a grifter - double plus good!

    Let's stick to hypotheticals. No point in gratuitous risk-taking.

    link to this | view in thread ]


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