After Robert Frese posted a nasty comment on Facebook about a police officer in 2018, the police received a warrant for his arrest. This is the second time in six years Frese has been charged with “criminal defamation”.
Frese doesn’t live in Russia, China, Iran, or another country known for its oppressive speech laws. He lives in New Hampshire, which criminalizes knowingly making a false statement that causes someone “to be hated, despised, or ridiculed by the public.” Although Americans often associate defamation with civil lawsuits, in which an alleged victim sues a speaker for money, many are unaware that, in some states, defamation is a Crimes can result in fines or imprisonment.
Criminal law for defamation is a relic of Britain, colonial times, and early America. The Federal Sedition Act of 1798 fines and imprisonment for those who transmit “any false, scandalous, and malicious writing or writing” against the government, and the John Adams administration used used it to prosecute dozens of critics. Federal law expired in 1801 after a critic, Thomas Jefferson, became president, but many states continue to prosecute their own libel criminal laws.
Today, New Hampshire and 13 other states still have criminal defamation laws in place. While prosecutions under these laws are rare as they were a few years ago, we have seen disturbing examples of allegations against citizens who criticize local government officials on social media. festival. Worse, those officials often have the unilateral authority to bring criminal charges of defamation.
Frese first encountered New Hampshire’s criminal defamation law in 2012, after posting comments on Craigslist accusing a local life coach of distributing drugs and operating a fraudulent business. . Local police arrested Frese and charged him with defamation and harassment. He was fined $1,488, with the majority suspended.
In the 2018 case, Frese posted under a pseudonym on the local newspaper’s Facebook page that a retired police officer was “the dirtiest corrupt cop I’ve ever been pleased to know…and the policeman.” Cowardly chief Shupe didn’t do anything about it.” The newspaper deleted that comment, but Frese published a similar comment accusing the sheriff of a cover-up. After the sheriff denied a cover-up, a detective determined that there was no evidence to support Frese’s allegations about the retired officer and filed a criminal complaint that resulted in an arrest warrant.
Although the police department dropped the complaint after state officials determined there was not enough evidence that he made statements with genuine malice, Frese asked a federal judge to confirm New Hampshire’s criminal defamation laws were unconstitutional, arguing that the threat of a third prosecution under statute chilled his speech.
Judge Joseph Laplante denied Frese’s request—not because he was particularly excited about the prospect of police arresting people for libel, but because of the U.S. Supreme Court, in the 1964 case. garrison v. Louisiana, ruled that states could “impose criminal sanctions for criticism of official conduct by public officials” provided that the government identifies the speaker who made the accusations. false claims with “genuine malice,” meaning they know the claim is false, or at least for serious entertainment. doubt its truth. This is a high standard, but even if the case ultimately fails, the mere prospect of facing arrest or forced criminal prosecution in a hostile jurisdiction can cause speech to be undermined. stagnation.
