U.S. Supreme Court Declines to Hear First Amendment Challenge to Criminal Defamation Law

WASHINGTON – The U.S. Supreme Court today declined the American Civil Liberties Union and the ACLU of New Hampshire’s petition for review of New Hampshire’s criminal defamation law, which makes it a misdemeanor to intentionally and falsely disparage another person. The lawsuit was filed on behalf of Robert Frese, a resident of Exeter who has twice been arrested and charged with criminal defamation, most recently for criticizing his town’s police chief.

“We’re disappointed the court declined to hear this important case. Criminal defamation laws are easily susceptible to abuse, as demonstrated by Mr. Frese’s arrest for stating that his local police chief covered up for a dirty cop,” said Brian Hauss, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “These prosecutions are incompatible with American democracy and they violate the First Amendment, as James Madison recognized more than two centuries ago.”

The lawsuit argued that New Hampshire’s criminal libel law — and laws like it across the nation — violate the First Amendment by authorizing law enforcement officers and other public officials to criminally prosecute their critics. The petition also stated that such laws are unnecessary when civil lawsuits are fully capable of addressing the harms caused by defamation.

The Supreme Court imposed significant restrictions on criminal defamation laws in the 1960s, and several justices signaled that criminal defamation should be abolished entirely. The court recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Despite this, generally applicable criminal defamation laws remain on the books in 14 states and the U.S. Virgin Islands. Penalties can range from $500 to $10,000 and/or 10 years in jail for certain offenses. Criminal convictions also carry collateral penalties, including potential immigration consequences and ineligibility for housing and employment opportunities.

Criminal defamation laws continue to be invoked to prosecute people who criticize law enforcement and other public officials, and prosecutions under criminal defamation laws are increasing with the rise of online speech. The remaining criminal defamation laws should be dismantled, so that Americans can freely speak their minds without fear of arrest or prosecution for offending a public official.