Critics question constitutionality of criminal libel laws

From the Winter 2003 issue of The News Media & The Law, page 36.

By Wendy Tannenbaum

Recent events in the area of criminal libel have spurred public debate over whether or not statutes that punish speech should exist at all. Because many criminal libel laws were created to prevent duels — back in the day when such events were prevalent — critics say they serve no purpose in today’s society and often are abused by prosecutors for political purposes.

In Kansas, following the prosecution of a newspaper editor and publisher, state lawmakers are pushing legislation that would repeal that state’s criminal libel statute, which makes knowingly spreading false information about a person illegal.

David W. Carson and Edward H. Powers Jr., who produce the The New Observer, were fined $3,500 each in November 2002 for accusing a mayor and a judge of unlawfully residing outside Wyandotte County.

The case is on appeal to the Kansas Supreme Court in Topeka. (Kansas v. Carson)

Hearings on the repeal movement were held Jan. 21, with advocates from both sides of the debate appearing before the Kansas Senate Judiciary Committee.

Edward Seaton, editor-in-chief of The Manhattan Mercury and former president of the Inter American Press Association, told the committee that criminal defamation laws are “the hallmark of closed societies around the world.”

He called the Kansas law an embarrassment to the state and the country.

“Those of us who believe in democracy and campaign for free expression are frequently in the position of urging other countries to repeal their criminal defamation laws,” Seaton said. “The principal argument made to these governments is that enlightened societies simply do not imprison people for what they write. In societies governed by the rule of law rather than the whims of political strongmen, attacks on public officials are not met by arresting journalists.”

The Kansas case received national and international attention because it yielded the first American conviction of a member of the news media for criminal libel since 1974. Since the prosecution, the Kansas Press Association has received more inquiries about criminal libel than any other issue, according to executive director Jeff Burkhead.

He said most local journalists were unaware, before the case was brought, that Kansas even had a criminal libel provision.

Fewer than half the states have criminal defamation statutes. Some of those laws, though still on the books, have been invalidated by court decisions.

In Utah, a Beaver County prosecutor in January dropped criminal defamation charges against a high school student who posted offensive statements on his Web site, after the teen was unsuccessfully prosecuted under another criminal libel law that was found unconstitutional.

In 2000, teenager Ian Lake maintained a Web site on which he made offensive statements about classmates and school officials. He called the then-principal of his school a “town drunk” and referred to some female students as “sluts.” He also accused the principal of sleeping with a school secretary.

Some of the individuals Lake offended sued him. Those claims were settled in civil court.

County prosecutor Leo Kanell brought criminal charges against the teen, but those charges were dismissed in November, when the Utah Supreme Court declared the state’s 1876 statute, under which he was charged, unconstitutional.

Editorials in The Salt Lake Tribune and Utah’s Daily Herald railed against the use of an ancient law to punish mere insults. Media advocates hailed the Utah court’s decision to invalidate the old statute.

“We are pleased that the court has thrown out this anachronistic and unconstitutional law,” said Janelle Eurick, American Civil Liberties Union of Utah legal director, after the first prosecution failed. “While perhaps offensive, Ian’s statements are not criminal, and the overzealous prosecution of this young man reflects precisely the kind of heavy-handed censorship the First Amendment forbids.”

Nevertheless, despite a failed first attempt, Kanell brought new charges against Lake under a more recent criminal defamation statute in November. The newer statute was thought to lack the constitutional problems found in the earlier law.

But before he could complete the second prosecution, Kanell, an elected official, was voted out of office.

His replacement, Von J. Christiansen, announced in January that the second set of charges would be dropped. He told the court that in light of the high court’s decision, he did not intend to pursue another criminal defamation charge.

“Criminal prosecution of speech is a dangerous notion,” said media attorney Jeffrey Hunt. “In this case, the high school principal targeted by Mr. Lake’s speech obtained his remedy through the filing of a civil defamation action against Mr. Lake. The principal has since moved on . . . and there was simply no public purpose served by pursuing the prosecution.” (Utah v. Lake)

“Ultimate threat to democracy”

Based on the cases in Kansas and Utah, media advocates and legal experts have criticized laws that punish people for speech, calling the statutes outdated and undemocratic.

“These statutes were originally designed as a means of keeping the peace, and were unconcerned with the truth of statements and wrongful reputational harm,” Hunt said. “As First Amendment jurisprudence has developed and continued to recognize the importance of public dialogue, even on contentious issues, the notion that speech restrictions should be used as a means of keeping the peace has become outdated.”

“Coupled with the rise of civil defamation law as a means to provide a remedy for reputational harm and to deter defamatory statements, there is no longer any social need for criminal penalties based on speech,” Hunt said.

Steven McAllister, constitutional scholar and Dean of the University of Kansas School of Law, called criminal libel statutes one of the “ultimate threats to society.”

“How can any legislature or prosecutor or judge develop consistent, clear standards for what is acceptable and what is not in this context? That is the fundamental problem,” McAllister said. “Some speech is definitely horrible, offensive, inappropriate and so forth. But to make it criminal is contrary to the ‘marketplace of ideas’ notion that runs throughout much First Amendment jurisprudence.”

McAllister says criminal libel laws raise special problems if invoked to prosecute critical statements made about public officials, as in the Kansas case.

Indeed, many recent criminal libel prosecutions have had political underpinnings.

In a 2001 case in Alabama, the prosecution suggested that lawyer Garfield Ivey was motivated to defame lieutenant governor candidate Steve Windom so that Windom would not be elected. The case against Ivey ended only after the Alabama Supreme Court found the law unconstitutional. (Alabama v. Ivey)

Murrel Bland, owner and editor of two independent weekly newspapers in Kansas, believes that most criminal libel cases — including the one on appeal in his state — are instigated for political reasons by officials whose administrations have been criticized or questioned.

Testifying at the Kansas Senate hearing, Bland said he has been the subject of offensive, and possibly libelous, statements. He told the committee that he has been “the target of lies” in the very paper produced by the Kansas defendants, Powers and Carson.

Yet, Bland is a staunch supporter of the freedom of the press and believes strongly that the Kansas statute should be repealed. He told the Kansas lawmakers that criminal defamation laws should be removed entirely from the legal landscape.

“People should not be prosecuted for what they may think, believe or write,” Bland testified. “Short of advocating violence, people should be able to express their views, regardless of who they are.”

Bland, like many free speech advocates, believes that disputes over offending statements should be resolved in civil suits, not in a criminal court.

Unconstitutional?

But are criminal libel laws fundamentally unconstitutional?

Many state laws have been struck down because they do not comport with First Amendment standards set forth by the U.S. Supreme Court.

In recent months, two criminal libel laws were rejected by courts for failing to incorporate the “actual malice” standard that was set out in the 1964 Supreme Court case New York Times v. Sullivan.

Under Sullivan, and cases following it, a person cannot be liable for libel of a public figure unless he acts with “actual malice,” defined as knowledge of or reckless disregard for the truth of the statements made.

The seminal Supreme Court case on criminal defamation, Garrison v. Louisiana, said that criminal statutes must comply with the standards the Court set out in Sullivan. The Court did not say that criminal libel is per se unconstitutional, but it did suggest that the area of libel was “inappropriate for penal control.”

The 1876 statute invalidated in Utah in November failed the Sullivan test because it did not require proof of “actual malice.”

The U.S. Court of Appeals in Boston (1st Cir.) struck down a similarly inadequate Puerto Rico law in January.

“The skepticism of government and the importance of the right to freely criticize it are concepts with both deep roots in American history and continuing importance,” the appeals court wrote in its opinion. A law limiting speech about government officials that does not incorporate basic First Amendment standards like the “actual malice” requirement is “constitutionally deficient.” (Mangual v. Rotger-Sabat)

But whether or not a criminal law that does have “actual malice” as an element can be declared unconstitutional is not clear.

The Supreme Court has not addressed the constitutionality of criminal libel statutes since the Garrison case was decided in 1964.

Utah attorney Hunt, who recently did a study of criminal libel laws in America, sees at least three arguments against their unconstitutionality.

“First, in general, the notion that a person can be jailed for speech is antithetical to the First Amendment, particularly where no public danger from the speech has been demonstrated,” Hunt said. “The state’s interest in criminal regulation is extremely low,” especially since there is always the option of suing a libel defendant in civil court.

“Second, there may be vagueness and overbreadth problems with any such statute,” given the complexity of the issues involved in a libel case, Hunt said.

A criminal law that does not clearly lay out what is outlawed violates the Constitution, under the legal doctrines of “vagueness” and “overbreadth.” Libel laws require courts to make a number of difficult determinations, including who is a public figure and whether a particular statement is fact or opinion. The complexities of these issues makes libel much more suited to the civil context — where the stakes are lower — than to criminal court, Hunt said.

Finally, scholars cite the idea that the public and the press will be afraid to speak out if they are faced with the possibility of punishment as the fundamental problem with allowing criminal libel in America.

Whereas the fear of civil litigation may cause some speech not to enter the United States’ “marketplace of ideas,” criminal punishment is a far bigger muzzle, advocates say.

“A society cannot be free if it criminalizes insulting government officials and institutions,” Seaton testified before the Kansas Senate committee. “If what is written is unpleasant or unfounded, the remedy should be to redress the harm caused to the reputation of the claimant, not to punish the defendant.”

“The risk that legitimate public discourse will be stifled by [criminal libel] laws far outweighs the minimal state interest in preventing what is essentially a private harm with a private remedy,” Hunt said.