A renaissance in speech crime prosecutions
States encroach on free speech when enforcing outdated criminal libel laws
From the Spring 2001 issue of The News Media & The Law, page 14.
By Dan Bischof
A relatively unused type of criminal statute is enjoying new life in a handful of states as prosecutors try to put people in jail for speaking.
People in Kansas, Utah and Wisconsin have been charged with criminal defamation, and defendants in Minnesota and Alabama have been convicted. And in some states, legislators have introduced bills that make lies told during political campaigns criminal acts.
“Throwing someone in jail for speaking is misplaced punishment,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “The appropriate way to proceed against false speech is to seek civil damages.”
Most criminal defamation statutes were adopted in the 19th century and have fallen into disuse. Fewer than half the states have criminal defamation laws on the books today. Many of the remaining states have not enforced the statutes in decades because they are out of step with current thinking. The Alabama law, for example, has a provision that punishes people for falsely imputing that a woman lacks chastity. In many cases the statutes have also been either struck down by state courts as unconstitutional or eliminated by state legislatures.
Many times, the targets of prosecutors’ charges are their political opponents. Journalists also get their share of charges filed against them. In 1988, for example, the editor of a weekly newspaper in South Carolina was indicted for libeling two state legislators. Although the charges were later dropped, the editor spent two nights in jail and was ordered by a magistrate upon his release not to publish any further derogatory articles about the legislators.
In 1990, the publisher of a small Florida newspaper was charged with criminal libel after publishing an advertisement that claimed a police officer was unfit for his job. Hiram E. “Dan” Daniels, publisher of the Eagle Lake, Fla., Eagle was charged under an obscure section of the Florida criminal defamation statute that requires that publications give the true name of a person who has been accused in print of immoral conduct. Defamation charges were dropped, however, when the publisher printed the officer’s correct name, acknowledged that he had violated the law and promised to obey it in the future.
Kansas
In the most recent case against journalists, a Kansas City prosecutor charged a local newspaper editor and publisher with criminal defamation for statements made in The New Observer in Wyandotte County.
Edward H. Powers Jr., editor, and David Carson, publisher, were charged with 10 counts of criminal defamation. Eight of the counts were for the statements they made suggesting the local mayor, Carol Marinovich, and her husband were not Wyandotte County residents.
The paper, which is published monthly in print and online, questioned in its November 2000 issue whether Marinovich lived at an address other than where she reported.
In January, the paper apologized to a resident who lived at the address that the paper said belonged to the mayor. The New Observer, however, repeated its belief that Marinovich and her husband had a home in another county and defended the story by stating that “two separate sources gave us logical, internally consistent information that Mr. and Mrs. Marinovich’s long-secret home was located at the address we reported.”
The New Observer has been harshly critical of Marinovich and Nick Tomasic, the prosecutor who brought the charges. Powers claimed the charges were politically motivated and stem from his articles and support for Tomasic’s opponent in a previous prosecutor election.
“Tomasic thought (the charges) would shut us up,” Powers said. “It’s egregious what they’ve done.”
At their first court appearance on April 10, the pair pleaded not guilty. Their next court date is set for July.
A federal appeals court upheld the constitutionality of the Kansas statute in 1995, even though the statute at the time lacked a requirement that a jury find the speaker acted with actual malice, an element required by the U.S. Supreme Court. The statute was later amended to expressly include an actual malice requirement.
Although other recent cases have not been aimed at journalists, the sting of criminal defamation laws may be felt by journalists in the future.
Minnesota
A Worthington man was convicted of defaming his neighbor, a dentist, in March by making phone calls to the state dental board alleging that the dentist was intoxicated while treating patients.
A jury convicted Jerry Obermoller for calling the Minnesota Board of Dentistry and posing as patients complaining that Dr. Bruce Larson treated patients apparently while under the influence of alcohol.
Obermoller did not argue that the statute was unconstitutional, said Bob Franklin, who covered the case for the Minneapolis Star-Tribune. Obermoller’s attorney, Michael Hanson, did not return phone calls seeking comment about the case.
Obermoller was scheduled for sentencing on April 24. Prosecutor Kenneth Kohler said Hanson told him he plans to appeal the conviction.
Alabama
In Alabama, Garfield Ivey, an officer of the state trial lawyers’ association, was convicted of defaming Steve Windom, who became lieutenant governor. In a case that sounds like the jacket blurb of a John Grisham novel, the prosecution alleged that Ivey was part of a plot to defeat Windom in the November 1998 election by paying a former prostitute to allege that Windom had used her services and physically abused her.
In Alabama, the case against Ivey was presented to a Mobile County grand jury. When that grand jury returned a “no bill,” and charges were not brought, the then-newly elected lieutenant governor asked the state attorney general to appoint a special prosecutor. That special prosecutor presented the case to a specially empaneled grand jury, which elected to bring charges in early 1999. Ivey was convicted of criminal defamation in June 2000.
The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief with the Alabama court in January arguing that the statute is unconstitutional because it lacks an actual malice requirement and because criminal defamation laws are “antithetic to current law and the public conscience, which encourages a robust discussion on matters of public interest.”
But after the Alabama Court of Criminal Appeals accepted all of the briefs, all the justices on the court recused themselves. The court then asked the Alabama Supreme Court to accept the case directly or appoint a special court.
“The last step was we joined the state’s request that the Alabama Supreme Court take the case and that’s the last we’ve heard. It’s been over a month now,” Ivey’s attorney and law partner Barry Ragsdale said in April.
Utah
Ian Lake, a former student at Milford High School in Milford City, posted on the Internet what The Salt Lake Tribune described as “an obscenity-laced home page.” On the Web site, Lake referred to several female classmates as “sluts,” called the principal “the town drunk,” and questioned the work ethic and competency of other school faculty.
Lake, then 16, spent seven days in juvenile detention following his arrest in May 2000. The site has since been pulled.
In December, Beaver County Juvenile Court Judge Joseph Jackson denied the 17-year-old defendant’s motion to dismiss, but certified the issue of whether the law infringed on the First Amendment to the appeals court.
Stephen Clark of the ACLU, who represents Lake with Salt Lake attorney Rick Van Wagoner, said the Utah Court of Appeals is considering whether to hear the constitutional challenge.
“It’s just a question now of whether the court of appeals will let us take it up at this point or whether we need to wait until after trial,” Clark said.
In addition to the criminal prosecution, Lake’s former principal sued him last August for libel. The civil case was settled in March when Lake and the principal agreed to drop claims against each other.
Wisconsin
In Fredonia, Carlton R. Lord was charged in March with violating a state law that prohibits making false statements about political candidates. Lord’s crime was defined as “false representation affecting an election,” which requires the prosecutor to prove the defendant made a representation that was false, that he knew it to be false, and that the statement affected a candidate.
The statute was drafted in 1973 and based on a law enacted in 1911. Gordon Baldwin, emeritus professor of law at University of Wisconsin-Madison, said the statute was probably unconstitutional.
“It certainly deals with political speech, which enjoys the highest degree of protection,” Baldwin said. “Secondly, it’s not tied to any kind of libel or defamation; it’s simply tied to arguments of falsehood, and I think it’s pretty clear that the rhetoric of the First Amendment protects political speech even if it is untrue.”
Baldwin said that when he served on the state elections board in the early 1990s, citizens called the statute to the board’s attention.
“We always — with some amusement — finessed it by saying, ‘go see the district attorney.’ No district attorney applied it until about two weeks ago,” Baldwin said.
“I cannot find that it’s ever been used, so that’s made it a little more difficult concerning whether we can find any way to challenge it,” said John Krejci, who represented Lord. “We’re starting from square one.”
According to Krejci, the Ozaukee County attorney’s theory was that Lord, in a letter to the editor two weeks before a local election, accused two town board members of voting to allocate funds involving a town annexation. He then gave an interview in which he told a reporter that he knew the statements in the letter were false.
“It appears to me that those statements can be interpreted as, ‘I now know they are false,'” Krejci said.
The Wisconsin statute bears a resemblance to bills recently introduced in Oklahoma and Iowa.
Oklahoma
Oklahoma state Sen. Jeff Rabon (D-Hugo) introduced a bill in the legislature in February that would penalize as misdemeanors any false statements made during political campaigns about election issues.
The bill makes it unlawful to prepare, disseminate or broadcast false “paid political advertising, campaign material, or a letter to a newspaper editor” when the person knows it is false or communicates with a reckless disregard for the truth.
The offensive material must relate to the “personal or political character, voting record, or acts of the candidate, or relate to the effect of a ballot measure; and (be) designed to elect, injure, promote, or defeat a candidate or to promote or defeat a ballot measure.”
The bill excepts “news items or editorial comments by the news media,” but does not define those terms. The bill also makes it a misdemeanor to falsely attribute endorsement of a ballot measure or candidate to a party committee or an individual.
Rabon said he was motivated to introduce the bill by professions, such as the insurance profession, which hold members to high ethical standards.
“Now, when there is so much on the line with political campaigns and you have political advocacy groups putting together voter guides, sometimes those guides are absolutely, blatantly false. This win-at-all-cost attitude has caused a serious problem in the ethics and the standards of elections today,” Rabon said. “It seems to me that this profession ought to have some level of accountability, the same level of accountability and standards that other professions have.”
However, Rabon admitted that the bill could be used against people who were not professional politicians.
“If you are going to go public with a letter to the editor, with a pamphlet, with a scandal sheet, whatever you want to call it, you’d better have your facts straight,” he said.
Rabon said his bill was necessary because civil defamation was “extremely difficult to prove.”
Iowa
An Iowa bill makes lying in campaign materials a crime: “A person shall not be a sponsor of any published material on behalf of or in opposition to any candidate or ballot issue that contains any assertion, representation, or statement of fact, including, but not limited to, information concerning a candidate’s prior public record, which the sponsor knows to be untrue, deceptive, or misleading.”
The bill passed the Iowa House on March 28 and was pending before the state Senate in late April.