Using criminal libel to silence online publishers

The U.S. Supreme Court ruled more than 40 years ago in Garrison v. Louisiana that state criminal libel statutes that permit prosecution for publication of truthful information violate the First Amendment. Yet, some states -- less than half but enough to cause concern for publishers -- still have these laws on the books, and in the absence of a court decision declaring them unconstitutional, they remain good law.

Lawyers familiar with the issue say traditional journalists are almost never prosecuted under these statutes, leaving online content providers and other publishers to serve as targets of allegedly defamed people who wield significant political power.  

Because of the possibility, albeit remote, of arrest and prosecution, digital journalists, particularly those who publish politically charged reports or have non-amicable relationships with powerful public officials in a particular community, are wise to research the status of criminal libel statutes in their states. These web-based authors are in a better position to protect themselves from hefty fines and even jail time if they can answer the following questions:

• Does the state in which I work have a law on the books that criminalizes the publication of truthful information?

• Has a court ever considered the statute and if so, to what effect? Did it invalidate the law? Uphold it as enforceable? Dodge the issue entirely and decide the case on other grounds?

• If a court has allowed the law to stand or never weighed in on the issue, is the statute ever enforced? How often? Under what circumstances, i.e., what was the nature of the reported information and function of its publisher? (Colorado and Wisconsin are just two states that enforce their criminal libel statutes as a means to punish certain types of expression. If you are unsure about the status of these laws in your particular state, contact the Reporters Committee for additional, specific information.)

Also important to consider is the rule that criminal libel laws are subject to the same constitutional requirements as civil libel laws. Thus, a person charged with criminal libel of a public official or figure can be found guilty only if the allegedly defamatory statement is false and made with actual malice. Despite these protections, however, a blogger or other online content provider in a state like Colorado or Wisconsin would be prudent to take some time and try to identify any community members who have influence with a prosecutor’s office and may try to exert that power if they are ever the subject of widely published reports, even wholly truthful ones.