As we’ve noted multiple times here at Techdirt, criminal defamation laws are unconstitutional, outdated, and almost exclusively used by law enforcement agencies to punish their critics. The ACLU — along with a victim of New Hampshire’s terrible criminal defamation law — is hoping to have this law struck down as unconstitutional.
Despite the law being clearly unconstitutional and its history of use in the state showing it has mainly been used by cops to go after critics, the state’s Attorney General is spending taxpayers’ money to defend a law that provides zero benefit to taxpayers.
The problems inherent in an abusable law like this are only made worse in New Hampshire, where law enforcement officers are not only allowed to arrest people, but also initiate prosecution for misdemeanor charges like this one. The state also does not respect the right to counsel in misdemeanor cases, leaving it up to defendants without the means to hire a lawyer to defend themselves against charges brought by cops who are now acting as prosecutors.
The state claims the law is perfectly fine and that Bob Frese — the man arrested and prosecuted by Exeter police officers for saying Exeter cops were “dirty” and were being covered up for by their “corrupt” chief — has no grounds to sue the law out of existence. The court disagrees, finding plenty that’s disagreeable about the law itself and its use by police officers to punish critics. (via NHPR)
As the court notes in its denial [PDF] of the state’s motion to dismiss, Frese has already twice been subjected to arrest and prosecution under this law.
In 2012, the Hudson Police Department interviewed Frese after a local life coach complained about comments Frese posted on the online platform Craigslist. In those posts, Frese repeatedly called the coaching business a scam and claimed the coach had been charged with distributing heroin. The Hudson Police Department ultimately charged Frese with harassment and criminal defamation and obtained an arrest warrant signed by a justice of the peace. Frese, without counsel, pleaded guilty to the charges and was fined $1,488, with $1,116 suspended on the condition he stay in good behavior for two years.
More recently, in 2018, the Exeter Police Department arrested and charged Frese with criminal defamation after he pseudonymously posted comments on the Exeter News-Letter’s Facebook page concerning a retiring Exeter police officer. In his first comment, Frese, under the pseudonym “Bob William,” stated that the retiring officer was “the dirtiest most corrupt cop that I have ever had the displeasure of knowing . . . and the coward Chief Shupe did nothing about it.” The Exeter News-Letter removed this comment at the police department’s request. After the comment was deleted, Frese submitted a second comment under the pseudonym “Bob Exeter” stating: “The coward Chief Shupe did nothing about it and covered up for this dirty cop. This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people . . . .”
The second prosecution of Frese was terminated after the state’s Civil Rights Division determined the officers had no probable cause to arrest him due to a lack of “actual malice” in Frese’s online comments. It’s this second arrest that forms the basis for Frese’s lawsuit, which seeks a permanent injunction against enforcement of the law.
The state argued Frese had no standing to sue, because he did not state he intends to… um… keep violating the law, I guess. In other words, the AG says Frese has nothing to fear from the state since he hasn’t said he’s just going to keep making defamatory statements. The court says Frese’s intent isn’t the issue here. It’s that Frese has already been baselessly arrested and charged for criticizing law enforcement. Since he intends to keep criticizing law enforcement, he has established a credible fear that he’ll be arrested and prosecuted again for future criticism.
[T]he criminal defamation statute “arguably . . . proscribe[s]” Frese’s intended future conduct… The criminal defamation statute sweeps broadly, carving out no exceptions for speech concerning law enforcement or other public officials. […] The Exeter Police Department already commenced a criminal defamation action against Frese in 2018 when he commented that “Officer Shupe did nothing” and covered up “the dirtiest most corrupt cop that [Frese] ever had the displeasure of knowing.” Although the department eventually followed the advice of the State’s Civil Rights Division in terminating the prosecution, Frese was nonetheless arrested and, for a time, prosecuted.
Defamatory statements, by definition, must be false. The AG says all Frese has to do is not lie. Again, this is beside the point. Law enforcement officers have the power to decide what’s true or false under the law, which allows them to arrest and prosecute people who officers only believe are lying. Since there’s almost no adversarial process involved, cops acting as judges and juries make the call on the truthfulness of people’s statements. Not intending to violate the law doesn’t matter since cops get to assume intent whenever they find criticism they don’t like.
Even if Frese does not plan in the future “to lie or recklessly disregard the veracity of his speech,” see id. at 156, his complaint sufficiently alleges that the State’s prosecutorial arms, which include non-attorney police officers, retain overly broad discretion to determine whether an individual knew his speech to be true or false. Like the SBA List plaintiff, Frese’s insistence that his 2018 comments were true did not prevent Exeter police officials from filing a criminal complaint against him or prevent a Circuit Court judge from finding probable cause to arrest Frese based on the police’s filings. Accordingly, Frese has demonstrated that his intended future conduct is “arguably . . . proscribed by the statute.”
The court also says the law itself may be unconstitutionally vague. First, the definition of the forbidden act is little more than a recitation of the definition of the term “defamation” with “any statement that would hold another up to public hatred, contempt or ridicule” attached to the end of it. There isn’t enough detail in the law to provide guidance to citizens on how they can avoid violating it. Worse, since cops are also prosecutors in misdemeanor cases — acting without guidance from actual prosecutors — they get to decide what violates the vague law, which obviously leads to the type of thing seen here: the punishment of law enforcement critics by the law enforcement agency being criticized.
Frese alleges that, “[o]n information and belief, individuals throughout New Hampshire routinely violate the criminal defamation statute, but [he] was arrested and prosecuted because he criticized law enforcement officials.” As clarified by his objection, Frese urges this court infer that because the statute “gives law enforcement far too much discretion in deciding whom to prosecute,” the motivation to prosecute criminal defamation is often political.
The court isn’t willing yet to decide whether or not the law is unconstitutional. But it will allow Frese’s lawsuit to proceed. And the court’s closing statement suggests the law isn’t going to make the constitutional cut.
Although some criminal defamation prosecutions may collapse on close scrutiny, as was the case with Frese in 2018, this fact does not negate the risk of an excessively discretionary scenario created by the statutory language challenged here. Frese’s encounters with prosecutions under the statute highlight several of these risks. As such, the discretion afforded to police departments to prosecute misdemeanors, taken together with the criminal defamation statute’s sweeping language, may produce more unpredictability and arbitrariness than the Fourteenth Amendment’s Due Process Clause permits.
The state will continue fighting Frese in court, even though there’s really no compelling reason the law should remain on the books. It’s the sunk cost fallacy in action, but with other people’s money. This law doesn’t need defending. This law needs to die. Defamation should be handled in civil courts, not by cops who are also judges and juries.
Read more: techdirt.com