Attorney for Utah teen says state’s criminal-libel law unconstitutional

Friday, July 7, 2000
Ian Lake

The attorney for a Utah teen charged with criminal libel for comments
he made in cyberspace says the charges should be dropped because the law
violates the First Amendment.

Prosecutors charged Ian Lake with criminal libel for offensive content
on his Web page. Lake referred to one female classmate as a “slut” and called
the principal “the town drunk.”

On May 18, Beaver County sheriff’s deputies arrested Lake and seized
his computer. The teen spent seven days in juvenile detention in Cedar City,

Prosecutors later charged the teen with criminal libel under a law
that defines libel as “a malicious defamation … tending to impeach the
honesty, integrity, or reputation, or publish the natural defects of one who is
alive and there expose him to public hatred, contempt or ridicule.”

Rick Van Wagoner, Lake’s attorney, says he will present several lines
of defense against this prosecution.

“First of all, we will file a motion challenging the constitutionality
of the statute on its face,” he said. “Even if what he [Lake] said was
offensive and beyond the pale of decency, so to speak, the statute is
unconstitutional on its face because it doesn’t apply the correct actual malice
standard as required by the U.S. Supreme Court.”

Van Wagoner, who is taking the case as a cooperating attorney for the
American Civil Liberties Union of Utah, cites the U.S. Supreme Court’s 1964
decision in Garrison v. State of
, in which the high court struck down a state criminal
libel statute and dismissed the conviction of New Orleans Parish district
attorney Jim Garrison for his comments criticizing several criminal trial

The Louisiana criminal defamation law punished false statements about
public officials that were made with ill will. However, earlier that year, the
U.S. Supreme Court established in New York Times Co.
v. Sullivan
that even false statements about public officials
could not be subject to a civil defamation suit unless the statements were made
with actual malice or reckless disregard for the truth.

In Garrison, the U.S.
Supreme Court extended the actual malice standard set in New York Times Co. v. Sullivan to criminal libel
cases, writing: “Only those statements made with the high degree of awareness
of their probable falsity demanded by New York Times may be the subject of
either civil or criminal sanctions.”

Van Wagoner asserts that the Utah criminal libel statute applies a
malice standard of ill will or hatred rather than the constitutional standard
of reckless disregard for the truth.

He says that if the facial challenge to the statute fails, he will
argue that his client’s speech is parody, a protected form of speech that
cannot be criminally libelous.

Finally, Van Wagoner says that if the facial attack and parody defense
fail, he will contend that Lake cannot be convicted of criminal libel because
his statements were not false. “Truth is a defense to any libel action,” he

Several calls placed to the prosecutor, Beaver County District
Attorney Leo Kanell, were not returned.

A pretrial conference in the case was set for July 11. However, Van
Wagoner says he has a conflict with that date and has requested the judge
hearing the case to postpone the hearing until August 1.

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