Criminal libel as political tactic

From the Spring 2001 issue of The News Media & The Law, page 17.

Perhaps the most threatening problem with criminal defamation prosecutions is that those who hold political power can use the laws to silence critics or punish defeated opponents for their campaign statements.

“The presence of politics in a criminal case is like the proverbial elephant in the living room,” a lawyer wrote in a recent Alabama criminal libel appeal. “Everybody sees it and everybody knows it’s there, but nobody really wants to talk about it.”

In a study of criminal defamation convictions, Arkansas law professor and former state supreme court judge Robert B. Leflar argued that nearly half of the cases from 1920 to 1956 “can be classified as basically political.

“Out of the 110 (criminal defamation cases), at least 44 grew out of or were parts of political controversies,” Leflar wrote. “Even the cases that arose out of political contests were usually more private than public, in the sense that there appeared to be little reason for much public interest in most of them when they were brought into court, usually some time after the political contests out of which they arose were ended.”

Leflar expounded the facts of dozens of cases. A Wisconsin labor leader was prosecuted for statements made against a police investigator. A Boston newspaper editor was prosecuted for a political cartoon showing the former mayor as a prisoner. A Texas political candidate was prosecuted for stating that his opponent had falsified his age to escape registration for the draft. A California citizen was prosecuted for accusing a political candidate of various crimes.

“Commonest among the political cases were those in which prosecutions were filed against an unsuccessful political candidate or his supporters for statements made during the campaign, now ended, concerning his now successful opponent,” Leflar said of the political prosecutions.

Leflar appears almost prescient in predicting the effect of politics on cases. Politics is the likely motive behind, or at least played a large part in three of the present prosecutions in Alabama, Kansas and Wisconsin.

In Alabama, the case centered around the prosecution’s suggestion that lawyer Garfield Ivey was motivated to defame Lieutentant Governor candidate Steve Windom so that Windom would not be elected. Windom, this theory goes, was favorably disposed to reforming the tort system in Alabama, something which Ivey, as a member of the Alabama Trial Lawyers Association, would not want to see.

“The facts of the case, involving not only alleged ‘dirty tricks’ during the election campaign for lieutenant governor, but also, according to the State’s theory of the case, the ongoing battle over the single most contentious political issue of the last few years — tort reform — guaranteed that the present case could never really be divorced from politics,” Ivey’s attorney, Barry Ragsdale, said.

Windom also was able to use the new political clout of his office to get the attorney general to appoint a special prosecutor to the case after a Mobile County grand jury failed to indict Ivey.

In Kansas, the accused editor and publisher run a newspaper that is devoted almost entirely to attacking Kansas City Mayor Carol Marinovich and the local prosecutor, Nick Tomasic. The paper’s language is imbued with a heavy dose of rhetoric and hyperbole. The articles often were punctuated with rhetorical questions and exclamations. The repeated, inflammatory entreaties to oust Marinovich and Tomasic are adequately summed up in one recent quote from the paper: “How long will you suffer two dime-store dictators?”

Recent headlines proclaim “Who’s lying? Marinovich or official documents?”, “The Marinovich — Tomasic Conspiracy…Have they gone too far…and shown their hand?”, and “Moneychangers are in the temple.”

Powers also says the prosecution is the result of his earlier backing a different candidate for district attorney.

In Wisconsin, the prosecution of Carlton Lord was instigated after he wrote a letter to the editor about activities in a local town board election. Eleven months after the entire town board was reelected, one board member brought the matter to the local prosecutor’s attention. The charges soon followed.

Leflar argued in conclusion that defamation should not be a crime because civil defamation statutes were adequate to remedy what was a private, not a public, problem. — DB