The crime of speaking ill of your betters

Sunday, November 6, 2005

In 17th Century England, it was a capital offense even to imagine the death of the king. Equally harsh punishment awaited those who criticized their rulers.

In today’s America, we have discarded the idea of royal infallibility, but there remain in our law vestiges of that early English policy toward speaking ill of our betters. And though the act of criticism may not be a capital offense, it certainly can be a criminal one in more than 20 states.

In fact, such laws are dusted off and applied with alarming regularity for a nation that prides itself on settling differences over speech in civil court rather than criminal court — with the government as impartial referee rather than prosecutor.

The latest American to run afoul of a criminal-libel law is Juan Mata, who was sentenced to a year in jail last month in a New Mexico court. Although the judge suspended the prison sentence, Mata was ordered to pay $114 in court costs and perform 50 hours of community service.

What exactly was Mata’s crime? After an argument with police over a traffic stop in November of 2002, Mata began picketing the police station in Farmington, carrying signs accusing one officer of being a liar. Later, he called for an investigation of the officer. In December 2004, he filed a civil lawsuit claiming harassment by the officer. Two months later, the local prosecutor charged him with criminal libel, harassment and stalking.

Such prosecutions are not as uncommon as we would like to think.

  • After University of Northern Colorado student Thomas Mink posted a doctored photo of a UNC professor on his Web page, the professor complained to Greeley police, who then went to Mink’s home and confiscated the computer used by the student and his mother. Shortly thereafter, a federal judge issued a restraining order preventing the district attorney from threatening Mink with the criminal-libel law. Mink’s legal challenge to the Colorado law will be heard early next year in the 10th U.S. Circuit Court of Appeals.

  • Since 2002, there have been three different criminal-libel prosecutions in Kansas, two of them involving newspapers and criticism of public officials.

  • In 2003, the Utah Supreme Court struck down an 1878 criminal-libel statute in a case involving the prosecution of a high school student who had posted disparaging remarks about his principal and fellow students on his Web page. But a 1973 criminal-libel law remains on the books in Utah.

  • Since 1964, when the U.S. Supreme Court reversed a criminal-libel conviction in Louisiana (Garrison v. Louisiana) there have been 77 threatened criminal-libel prosecutions in the United States, according to a 2003 study by the Media Law Resource Center. More than 65% of these cases targeted speech about public officials or issues of public concern, the report stated. In most cases, prosecutions were based on complaints from law enforcement officers and elected officials.

    In a separate study of criminal libel, Gregory Lisby at Georgia State University reported the documentation of 600 such cases that reached the appeals court level from 1797 through 1996. There is no way to know how many times during that period American citizens were threatened with criminal-libel prosecution, or how many times charges were filed then dropped, or how many cases were dismissed after reaching court.

    Lisby’s report listed 23 states, the District of Columbia and the Virgin Islands as having criminal-libel statutes still on the books.* In addition to criminalizing defamation of the living, many of these laws criminalize defamation of the dead or of financial institutions, insurance companies and corporations. Some include name-calling or “fighting words” and accusations of fornication or lack of chastity as criminal offenses.

    Defenders of such laws insist that they are needed to ensure public order and government stability. If those rationales ever had any validity, they no longer do. Instead, criminal-libel laws are a pernicious assault on our First Amendment principles.

    They invite comparison to insult laws drawn to protect despots in other parts of the world.

    They allow local authorities to search homes and seize property and to arrest and jail those accused — before they appear in court to defend their words.

    They silence or intimidate other citizens, journalists and commentators who may have facts or opinions to share about those accused of criminal libel.

    They put defendants at a distinct disadvantage in court, where they face, not the individual allegedly defamed, but the government as prosecutor and the taxpayer as underwriter.

    When it comes to public discourse, the threat of criminal prosecution for speaking our minds is as chilling as the prosecution itself, especially when there are other, more democratic, remedies for defamatory comments.

    Rather than tapping into an official connection to bring charges, private citizens who feel they have been defamed should go to civil court, where they not only get to air their grievances but may receive compensation for damage to their reputations. Rather than throw their critics in jail, public officials should engage them in debate.

    As long as criminal-libel laws remain on the books, the discourse and dissent that enlivens democracy, ensures government accountability and preserves individual liberty remains in danger.

    Criminal libel traces its origins to the English monarchy’s Privy Council and the Court of the Star Chamber. To have it still lurking in the laws of the United States is a grievous affront to our democratic traditions.

    * Arkansas, Colorado, District of Columbia, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Louisiana, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Virgin Islands, Virginia, Washington, Wisconsin.

    Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:

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