Frese v. Formella – Challenge to New Hampshire Criminal Defamation Law

Twenty-five states have laws that make it a crime to publicly say mean things about people, with penalties ranging from fines to imprisonment. These laws violate the First Amendment and are disproportionately used against people who criticize public officials or government employees.

The ACLU represents Robert Frese, who was arrested in May 2018 for violating New Hampshire’s criminal libel law after he posted comments to a news article about a retiring Exeter Police officer. Frese wrote, “This is the dirtiest most corrupt cop I have ever had the displeasure of knowing, he has committed perjury, false charges, conspiracy, false reports to law enforcement.” After the comment was taken down at the police department’s request, Frese posted another comment saying that Exeter’s police chief “covered up for this dirty cop.”

The police dropped the charges after the ACLU of New Hampshire spoke out against Frese’s prosecution. Our lawsuit is asking a federal court to strike down the state’s criminal defamation law as unconstitutional.

The Supreme Court imposed significant restrictions on criminal defamation laws in the 1960s, but in states that still have criminal defamation laws on the books, public officials have used them to prosecute critics. For example, the editor and publisher of a small newspaper in Kansas were convicted of criminal defamation after the paper published an article suggesting that the mayor lived in another county and was therefore ineligible for public office. A Massachusetts woman was convicted of criminal defamation in New Hampshire after she claimed that a coffee shop’s employees spit in police officers’ coffee. And a Kansas man was charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem.

Freedom of speech doesn’t give anyone the absolute right to spread malicious lies about people, but civil lawsuits are fully capable of addressing the harms caused by defamation. Several states have repealed these unconstitutional laws in recent years, and the remaining ones that still have them on the books should follow suit.

In March 2023, the ACLU petitioned the Supreme Court to hear the case. The petition argues that the First Amendment does not tolerate criminal prosecution for defamation of public officials. Indeed, James Madison himself argued that criminal defamation prosecutions under the Sedition Act of 1798 violated the First Amendment and undermined American democracy. Madison’s arguments carried the day, and the Sedition Act was repealed after the election of 1800, but criminal defamation laws remain on the books in many states and continue to be invoked against those who criticize law enforcement and other public officials. The petition also argues that the common law of civil defamation is too vague for a criminal restriction on speech, and that New Hampshire’s idiosyncratic criminal procedure – which allows police officers to prosecute low-level misdemeanors without the participation of a licensed attorney – exacerbates the criminal defamation statute’s inherent potential for arbitrary or selective enforcement against those who criticize the police. However, on October 2, 2023, the Court denied the petition.