Federal Court Rules ACLU Challenge to Criminal Libel Law Can Proceed

CONCORD, N.H. — A federal court today ruled that the American Civil Liberties Union’s constitutional challenge to New Hampshire’s criminal defamation law can proceed. The law 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 under the law.

In its decision, the court concluded that the ACLU’s challenge can proceed because the New Hampshire law “arguably fails to provide ‘people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ and what speech is acceptable.” The court added that there were sufficient allegations that the criminal defamation law “may be prone to arbitrary enforcement.”

“Law enforcement officials have long abused defamation laws to silence their critics,” said Brian Hauss, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Criminal libel laws have no place in a modern American democracy, especially when civil lawsuits are fully capable of addressing the harms caused by defamation.”

Frese was arrested after posting comments online accusing a police officer of misconduct. The police ultimately dropped the charges.

“I never thought that speaking my mind would get me arrested,” Frese said. “America is the best country in the world because we have the right to free speech. Never in a million years would I think that what happened to me would happen in this country — it is utterly anti-American.”

The ACLU’s lawsuit argues that New Hampshire’s criminal libel law — and laws like it across the nation — violate the Due Process Clause and the First Amendment, give the public far too little guidance on what may constitute a crime, and give law enforcement far too much discretion in deciding whom to prosecute. The case will now proceed to discovery.

“Our client went to the internet to voice his grievances about the police only to be arrested by the police,” said Gilles Bissonnette, legal director at the ACLU of New Hampshire. “That is absurd, and a textbook example of the use and abuse of criminal defamation laws. Law enforcement should not have the power to crack down on free speech, especially when that speech is critical of law enforcement. We look forward to further advancing these arguments in this case.”

Criminal defamation laws remain on the books in over 20 states. 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.

The ruling is here: https://www.aclu.org/legal-document/frese-v-macdonald-order-denying-state-motion-dismiss.

A blog post by Hauss on the case is here: https://www.aclu.org/blog/free-speech/internet-speech/new-hampshire-police-arrested-man-being-mean-them-internet.

A map of criminal libels laws throughout the United States is here: https://www.aclu.org/issues/free-speech/criminal-defamation.