After Robert Friese He posted a nasty comment on Facebook about a police officer in 2018, the police got an arrest warrant. It was the second time in six years that Friese had been charged with “criminal defamation”.
Fariz does not live in Russia, China, Iran or any other country notorious for its repressive speech laws. He lives in New Hampshire, where it is a crime to knowingly make a false statement exposing someone to “public hatred, contempt, or ridicule.” While Americans commonly associate defamation with civil lawsuits, in which an alleged victim sues the speaker for money, many don’t realize that, in some states, defamation is a crime that can result in fines or a prison sentence.
Criminal defamation laws are a relic of England, colonial times, and early America. The Federal Sedition Act of 1798 imposed fines and imprisonment for those who transmitted “any false, scandalous, and malicious writings or writings” against the government, and the John Adams administration used it to prosecute scores of critics. Federal law ended in 1801 after critic Thomas Jefferson became president, but many states continued to sue with their own criminal libel laws.
Today, New Hampshire and 13 other states still have criminal defamation laws on the books. While prosecutions under these laws were rare as recently as a few years ago, we have seen disturbing examples of charges brought against citizens who criticize local government officials on social media. Even worse, these officials often have unilateral power to bring charges of criminal defamation.
Freese had his first run-in with New Hampshire criminal defamation law in 2012, after he posted comments on Craigslist accusing the local life coach of distributing drugs and running a scam business. Local police arrested Freese and charged him with defamation and criminal harassment. He was fined $1,488 with most of it suspended.
In a 2018 issue, Freese posted pseudonymously on the local newspaper’s Facebook page that a retired police officer was “the dirtiest, most corrupt cop he ever had the satisfaction of knowing…and the cowardly chief Shoppe did nothing about it.” The newspaper deleted that comment, but Friese posted a similar comment accusing the police chief of a cover-up. After the police chief denied a cover-up, a detective determined there was no evidence to support Friese’s claims about the retired officer and filed a criminal complaint, which resulted in an arrest warrant.
Although the police department dropped its complaint after state officials determined there was insufficient evidence that he made the remarks with actual malice, Friese asked a federal judge to deem New Hampshire’s criminal libel statute unconstitutional, arguing that the threat of a third prosecution under the law His goosebumps.
Judge Joseph Laplante denied Friese’s motion — not because he was particularly excited by the prospect of police arresting people for libel, but because the US Supreme Court, in a 1964 case Garrison v. Louisiana, ruling that states can “impose criminal penalties for criticism of official conduct of public officials” provided the government can prove that the speaker made the false statements with “genuine malice,” meaning they knew the statement was false, or at least considered serious doubts about its truth. That’s a high bar, but even if the case ultimately fails, the mere prospect of facing arrest or coercion through a criminal trial in a hostile jurisdiction can freeze speech.