Criminal libel: a bad idea in a free society

Friday, February 17, 2012

Saying something untrue about a person may cost you later in court — but in about two dozen states it can land you in jail, too.

Libel lawsuits today in the U.S. almost always involve a civil case brought by one person against another, seeking compensation for damages suffered for an alleged false claim or statement. Truth almost always provides legal protection to the speaker or writer, and without proof of malicious intent or reckless disregard for the truth, few claims prevail.

But the continued existence in a number of states of “criminal libel” statutes raises the centuries-old specter of fines or even a prison term for writers or speakers found liable for damaging remarks.

Criminal prosecution for defamation extends back to Star Chamber’s secret activities in England in the early 1500s, when it was used — even for true statements — to punish insults to noble egos or opposition to royal policies.

Later, such disputes were moved into open courts and touted as positive alternatives to duels over matters of personal honor.

In Colorado, GOP State Sen. Greg Brophy has proposed repeal of his state’s 19th century criminal-libel statute, telling the Associated Press that the law “tramples on the First Amendment rights of people to write and or post online things that they want to post.”

A state Senate committee approved the measure Feb. 14 in a first step toward passage.

Critics say anachronistic laws such as criminal libel often use colorful but imprecise language that fails to meet modern constitutional tests. The Colorado law, for example, provides for prosecution of anyone for “any statement … tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation, or expose the natural defects, of one who is alive.”

Laws in other states have aspects that are out-of-date in today’s world, such as provisions focusing on insults to women or that base violations on vague ideas such as authoring remarks that cause a “general breach of the peace.”

Such laws could empower a government official in a vendetta against news operations, or those seeking to silence a blogger or punish a political opponent. The mere threat of a criminal charge carries a chilling effect regardless of the relative difficulty in winning a libel action of any kind.

An AP report cited two criminal-libel prosecutions in Colorado in the past two years. In one, a man faced 18 months in prison for sexually charged comments he posted about an ex-girlfriend. The charge was later reduced to harassment. In the second case, a university student faced the threat of criminal charges for creating a satirical blog about a professor. At one point, police searched the student’s home and seized his computer. Ultimately, no charges were filed and the student obtained a $425,000 settlement against the prosecutor who had signed off on the search warrant.

The law surrounding defamation — as with issues like cyberbullying and copyright protection for music — has not fully caught up with the challenges and promises of the Internet Age. Some argue that given the relative ease of widely spreading a falsehood online about someone, a criminal charge offers an effective means of punishing those with few assets to pay a civil court judgment.

But the legal point of a defamation lawsuit is lawful compensation for damages, not punishment.  Jailing a writer or imposing a criminal conviction on a speaker as a means of holding him or her accountable to the truth has no place in a society based on the vigorous exchange of strongly held views and committed to the marketplace of ideas.

Civil lawsuits offer the restoration of reputation, and in most cases compensation for losses, to victims whose reputations have been sullied unfairly.

Criminal-libel laws belong in our history texts, not in our law books.

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