Amicus brief in Ivey v. Alabama
Arguing that an Alabama court should rule that an outdated criminal libel statute is unconstitutional.
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OF CRIMINAL APPEALS
BRIEF FOR AMICUS CURIAE IN SUPPORT OF APPELLANT Appearing pro hac vice:
Gregg P. Leslie, Esq. Local counsel:
Gilbert E. Johnston, Jr. TABLE OF AUTHORITIES INTEREST OF AMICUS CURIAE INTRODUCTION ARGUMENTS I. Criminal libel statutes have become ineffective and virtually obsolete in modern American society. A. History of criminal defamation in the U.S. B. Overview of current criminal defamation law in the United States. CONCLUSION Cases Tollett v. United States, 485 F. 2d 1087 (8th Cir. 1973) 2, 11 De Libellis Famosis, 77 Eng. Rep. 250 (1606) 3 People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804) 3 Garrison v. Louisiana, 379 U.S. 64, 69, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964) 4, 13, 14, 22, 23 Beal v. The State, 99 Ala. 234, 13 So. 783 (Ala. 1892) 8, 17 Riley v. The State, 132 Ala. 13, 31 So. 731 (Ala. 1902) 8, 17 Brooke v. The State, 154 Ala. 53, 58, 45 So. 622 (1908) 9 Krasner v. State, 248 Ala. 12, 26 So. 2d 526 (Ala. 1946) 9, 18 Gottschalk v. State, 575 P. 2d 289, 294 (Alaska 1978) 10, 15, 19 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) 10, 11, 12 Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) 11 Hustler v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L. Ed. 2d 41 (1988) 12, 13 Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 18 L. Ed. 2d 1094 (1967) 13 Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L. Ed. 2d 469 (1966) 14 Weston v. State, 258 Ark. 707, 528 S.W. 2d 412 (Ark. 1975) 15, 20 Eberle v. Municipal Court of Los Angeles District, 55 Cal. App. 3d 423, 127 Cal. Rptr. 594 (Cal. App. 1976) 16, 20 Nevada Press Assn. v. Del Papa, CV-S-98-00991-JBR (D. Nev. 1998) 16 Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (Pa. 1970) 16, 20 Fitts v. Kolb, 779 F. Supp. 1502 (D. S.C. 1991) 16, 18, 20, 21 State v. Powell, 114 N.M. 395, 839 P.2d 139 (N.M. Ct. App. 1992) 21, 22 People v. Ryan, 806 P.2d 935 (Colo. 1991) 22 Statutes 1991 Cal. Stat. 186 § 1 6 Ala. Code § 4107 (1876) 8 Ala. Code § 3771 (1886) 8 Ala. Code § 3773 (1886) 8 Ala. Code § 5065 (1896) 8 Ala. Code § 7340 (1907) 8 Ala. Code § 4923 (1923) 8 Ala. Code, Tit. 14 § 350 (1940) 8 Ala. Code § 13-6-203 (1975) 8 Ala. Code § 13A-11-163 (2000) 8, 10, 17 Other John Kelly, Criminal Libel and Free Speech, 6 Kan. L. Rev. 295 (1958) 3 Note, Constitutionality of the Law of Criminal Libel, 52 Colum. L. Rev. 521 (1952) 3 Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 924 (1963) 4 Libel Defense Resource Center - 50-State Survey (1999-2000) 6 "Criminal Libel Charges Dropped in South Carolina," New York Times, p. 46 (July 2, 1988) 6 "Publishers Charged with Criminal Libel," The News Media & the Law, p. 2 (Spring 1990) 6 "Libel Charges Will Stand Against Milford Student," The Deseret News, p. B4 (Dec. 6, 2000) 7 "Teen Seeking Dismissal of Libel Suit; Legal Ledger Growing Over Youth's Web site," The Salt Lake Tribune, p. D1 (Nov. 29, 2000) 7 Jennifer Farrell, "Parody Web site: offensive or illegal?" St. Petersburg Times/Hernando Times, p. 1 (Dec. 18, 2000) 7 Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Texas L.Rev. 984, 985-86 (1956) 7, 10, 11 The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the free speech, free press rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. Amicus curiae's interest in this case is in preserving the right of journalists to gather news and publish without threat of criminal defamation penalty. Amicus curiae sees the Alabama criminal defamation law as a serious threat to constitutionally protected news gathering and publishing activities. Thus, amicus curiae submits this brief in support of the appellant's argument that Ala. Code § 13A-11-163 violates constitutional requirements under the First Amendment of the U.S. Constitution. Criminal defamation law was originally established to punish those, who by their words, inspired a breach of the peace. The law was developed to prevent duels and other clashes over statements that were in many cases true. As the use of civil defamation has increased, criminal defamation laws have fallen into disuse. Many states' laws were judicially struck down as unconstitutional, legislatively repealed or both. Those statutes that remain are either unused or capriciously enforced, largely against unpopular voices or political also-rans. The U.S. Supreme Court has ruled that criminal defamation actions require that the plaintiff prove the defendant's statements about public officials or figures were made with actual malice. The Court struck down the Louisiana statute for its lack of an actual malice element, as have many other state courts. Amicus asks the court in the instant case to rule Ala. Code § 13A-11-163 unconstitutional for its lack of an actual malice requirement. Because to judicially reconstruct the statute by interpreting "malice" as the constitutionally required "actual malice" would be tantamount to judicial legislation, amicus requests that the court - like many other states - refuse to do so. Finally, even if the court decides the statute is facially constitutional, Ala. Code § 13A-11-163 is unconstitutional as applied to the appellant, who made statements on a matter of public interest involving a public official. ARGUMENTS I. Criminal libel statutes have become ineffective and virtually obsolete in modern American society. Criminal defamation law has strayed far from its original function of protecting against duels and breaches of the peace. The notion that persons can be imprisoned for speech is completely antithetic to current law and the public conscience, which encourages a robust discussion on matters of public interest. Modern criminal defamation statutes, which protect personal reputation and not public order, are either obsolete or ineffective and trivial in light of modern tort law. A. History of criminal defamation in the U.S. To put amicus's arguments in context, it is helpful to examine the history of criminal defamation law, which one court, in Tollett v. United States, 485 F.2d 1087, 1094 (8th Cir. 1973), has called an "ignominious history." Criminal libel is notoriously intertwined with the history of governmental attempts to suppress criticism. The law of criminal libel is the product of 16th century innovations in the English Star Chamber, which premised its law on the notion that defamations caused breaches of the peace. Because true statements were at least as likely to cause breaches of the peace as false ones, criminal defamation law then punished both true and false statements. Thus the rationale for criminal libel, according to De Libellis Famosis, 77 Eng. Rep. 250, 251 (1606), was that "libels, regardless of what actual damage results to the reputation of the defamed, may be penalized by the state because they tend to create breaches of the peace when the defamed or his friends undertake to revenge themselves on the defamer." So went the saying, "the greater the truth, the greater the libel." John Kelly, Criminal Libel and Free Speech, 6 Kan. L. Rev. 295, 297 (1958). It wasn't until 1842 that evidence of truth was admissible in England. In the United States, truth was apparently always admissible, if not a defense, to a charge of libel. John Peter Zenger, who was famously charged with seditiously libeling the governor of New York, won an acquittal when his counsel argued to the jury they should be allowed to decide the case as if the allegedly defamatory statements were true. Note, Constitutionality of the Law of Criminal Libel, 52 Colum. L. Rev. 521, 523-24 (1952). Several early state constitutions and even the Alien and Sedition Act of 1798, which was widely believed to be an unconstitutional limitation on speech, recognized the admissibility of the truth of the statement. Truth of the defamatory statement began to be seen as substantive evidence after Alexander Hamilton defended printer Harry Croswell in a prosecution for allegedly libeling Thomas Jefferson. People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804). By the mid-1950s, truth alone as a defense was written into 27 state statutes or constitutions and the "breach of peace" requirement had mostly been removed.(1) Criminal defamation laws, which had been put in place to avoid the "chivalrous satisfaction" of duels, had begun eroding as early as the1800s. "Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that '. . . under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation." Garrison v. Louisiana, 379 U.S. 64, 69, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964) (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 924 (1963)). When the Model Penal Code was drafted in 1961, the drafters were loath to include a general criminal defamation section: It goes without saying that penal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit. Usually we reserve the criminal law for harmful behavior which exceptionally disturbs the community's sense of security . . . It seems evident that personal calumny falls in neither of these classes in the U.S.A., that it is therefore inappropriate for penal control, and that this probably accounts for the paucity of prosecutions and the near desuetude of private criminal libel legislation in this country. . . Garrison v. Louisiana, 379 U.S. at 69-70 (quoting Model Penal Code, Tent. Draft No. 13, 1961, § 250.7, Comments, at 44). B. Overview of current criminal defamation law in the United States. Less than half of the states have a criminal defamation statute of any fashion remaining on the books.(2) Some of those statutes that remain have been completely invalidated by court decision;(3) others - Colorado, Georgia, Illinois, Kansas, and Louisiana - have been judicially limited to apply differently to statements about public figures and officials than to statements about private persons. (4) Finally, some states have had their criminal defamation statutes both judicially invalidated, then later repealed.(5) There are several other states that never had a criminal defamation statute, but punished criminal defamation at common law; these states - Delaware, Kentucky, Maryland, Massachusetts, Rhode Island, Vermont and West Virginia - have not had a prosecution in the last 35 years. See Libel Defense Resource Center 50-State Survey 1999-2000. Many of the legislative repealing efforts came in the 1970s, but some were more recent. Indicative of the feeling of many of the legislatures are the comments of the California legislature upon repeal of its criminal slander statute: The Legislature finds and declares that every person has the right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution. The Legislature finds and declares that the continued existence of vague laws on the books is an invitation to their unconstitutional use, at the peril of civil liberties. 1991 Cal. Stat. 186 § 1. Application of the criminal defamation laws on the books has fallen off to near disuse. However, criminal defamation laws have been unfairly and unevenly applied to acts of the media, even in the last dozen years. In 1988, the editor of a weekly newspaper in South Carolina was indicted for libeling two state legislators. Although the charges were later dropped, the editor spent two nights in jail and was ordered by the magistrate upon his release not to publish any further derogatory articles about the legislators. See "Criminal Libel Charges Dropped in South Carolina," New York Times, p. 46 (July 2, 1988). In 1990, the publisher of a small Florida newspaper was charged with criminal libel after publishing an advertisement that claimed a police officer was unfit for his job. See "Publishers Charged with Criminal Libel," The News Media & the Law, p. 2 (Spring 1990). Arguably, as the proliferation of the Internet continues and more persons become home publishers, we may see more cases like the current one in Utah where a high school student was charged with criminal libel for an allegedly defamatory Web site he created. See "Libel Charges Will Stand Against Milford Student," The Deseret News, p. B4 (Dec. 6, 2000); "Teen Seeking Dismissal of Libel Suit; Legal Ledger Growing Over Youth's Web site," The Salt Lake Tribune, p. D1 (Nov. 29, 2000). An investigation was recently underway for a similar Web site in Florida. See Jennifer Farrell, "Parody Web site: offensive or illegal?" St. Petersburg Times/Hernando Times, p. 1 (Dec. 18, 2000). Most relevant to the case at bar, however, is the application of criminal defamation statutes in the United States to political contest losers. Noted legal scholar Robert A. Leflar noted in 1956 that half the cases from 1920 on can be classified as basically political. . . . Commonest among the political cases were those in which prosecutions were filed against an unsuccessful political candidate or his supporters for statements made during a campaign, now ended, concerning his now successful opponent. Of the same sort were prosecutions of persons, who feeling aggrieved, made disagreeable statements about persons firmly entrenched in public office or power. One may suspect that in such cases the law was being used by the successful personage or his friends as a means of punishing their less potent enemies Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Texas L.Rev. 984, 985-86 (1956). The fact that those holding political power have access to prosecutorial authority makes criminal defamation an especially dangerous political weapon. It invites uneven application of the law depending on the momentary sways in political power and places political also-rans at the mercy of election victors. C. History of criminal defamation in Alabama. Alabama has had a criminal defamation statute at least since 1876. The 1876 Alabama Code punished criminal defamation in Alabama against [a]ny person who writes, prints, or speaks of and concerning any female, falsely and maliciously imputing to her a want of chastity; and any person who speaks, writes, or prints, of and concerning another, any accusation, falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude. . . Ala. Code § 4107 (1876). In 1886, libel was made a separate crime; it required only a publication of a libel and a breach of the peace. Ala. Code § 3771 (1886). However, the crime of defamation has remained virtually unchanged since its original enactment; the only changes were change of the word "female" to "woman" in 1886, and the removal of the"maliciously" requirement in reference to a charge of imputing a lack of virtue to a woman in 1907. Ala. Code § 3773 (1886); Ala. Code § 5065 (1896); Ala. Code § 7340 (1907); Ala. Code § 4923 (1923); Ala. Code, Tit. 14 § 350 (1940); Ala. Code § 13-6-203 (1975). Although the statute has been renumbered not one word of the statute was changed. Ala. Code § 13A-11-163 (2000). Alabama case law - like that of the rest of the nation - clearly demonstrates how the definition of malice refers to common law malice. Although a prosecutor in a defamation case did not need to prove malice because it could be inferred from the nature of the statement, it was clear that "maliciously" was intended to mean "ill-will or hatred towards the person against whom the accusation was made or a purpose to injure him." Beal v. The State, 99 Ala. 234, 235, 13 So. 783 (Ala. 1892). It was not "essential to conviction that the utterance should have been intentionally wrong or reckless." Riley v. The State, 132 Ala. 13, 31 So. 731 (Ala. 1902). Under the criminal libel statute, a statement need not have been proven false for a conviction to stand. Brooke v. The State, 154 Ala. 53, 58, 45 So. 622 (1908). In 1946, the Alabama Supreme Court had a chance to review the requirements of the then-existing criminal libel statute. Krasner v. State, 248 Ala. 12, 26 So. 2d 526 (Ala. 1946). The court there held that the statute did not require that a statement be false for a conviction to stand, although evidence of truthfulness should be admitted as evidence "when such evidence will tend to negative malice and the intent to defame." Id. at 528. The court also ruled that evidence that the defendant had received advice of counsel before making the allegedly defamatory statement was relevant in a finding of malice. Most importantly, the court implicitly defined malice as common law malice, that is, ill will on the part of the defendant. D. Criminal defamation laws have become ineffective and virtually obsolete in light of the history of criminal defamation law and other legal remedies currently available. The function of criminal law is maintenance of an acceptable minimum of good order in society. Those few criminal laws that punished a breach of the peace upheld that goal as a rationale. Now, the overwhelming majority of defamation statues that remain on the books do little more than provide a separate remedy for those who believe themselves wronged, most often those who hold political power and seek to silence dissenting voices. Thus criminal defamation statutes seek a public enforcement for what is a private - not a public - ill. The prosecution of a person for criminal defamation may also provide an early and free litmus test for a potential civil plaintiff. If the conviction is successful, evidence of the defendant's conviction would then be admissible in a subsequent civil case. Functionally, the state cannot point to any deterring effect of the criminal libel statute that is not met by a civil defamation cause of action. In fact, a criminal defamation prosecution has significant social costs: the high costs of investigating, arresting, and litigating criminal defamation cases and the capricious manner in which such cases are prosecuted. One court has said, "One evil of a vague statute is that it creates the potential for arbitrary, uneven and selective enforcement. Nowhere is this more evident than in the area of criminal defamation, which is committed many times each day. . . " Gottschalk v. State, 575 P. 2d 289, 294 (Alaska 1978). That there are so many civil defamation suits brought in the United States in a given year and so few criminal defamation prosecutions, is further evidence of the arbitrary manner in which criminal defamation statutes are applied. In fact, in light of the minor penalties associated with criminal defamation convictions as compared to potential civil damages, criminal laws are less likely to be effective than civil damages awards. Leflar concluded in his 1956 article that criminal defamation laws had little to no effect, primarily because the statutes were infrequently applied and the penalties were minor. He also noted that in all criminal defense cases since 1920, "civil remedies would have been as available as the criminal prosecution was. . . " Leflar, 34 Texas L. Rev. at 1025. The penalty in the Alabama statute, for example, is $500 and six months imprisonment. Ala. Code § 13A-11-163 (2000). Moreover, because of the disuse into which criminal defamation prosecutions have fallen, the statutes have not been challenged and consequently the speech protections afforded civil torts have not yet been extended to the criminal provisions. Libel protections have increased since the landmark U.S. Supreme Court case New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed. 2d 686 (1964), such as by requiring greater proof of libel plaintiffs to survive summary judgment. See e.g. Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This case is just one in a series of U.S. Supreme Court cases expanding the constitutional protections afforded speech, whereas only two criminal defamation cases have made it to the Court in the last 37 years. Further, as the criminal defamation statutes have fallen into disuse, other civil remedies have been applied more liberally to cases where speech rights were abused, such as the more prolific use of the civil defamation laws and other torts such as interference with business relations. Others have suggested that criminal libel was unnecessary in light of a private cause of action for defamation: Thomas Jefferson wrote to his attorney general saying that he wished no prosecution against a [libel] contemnor, then added: While a full range is proper for action by individuals, either private or public, for slanders affecting them, I would wish much to see the experiment tried of getting along without public prosecutions for libels. I believe we can do it. Patience and well-doing, instead of punishment, if it can be found sufficiently efficacious, would be a happy change in the instruments of government. Leflar, 34 Tex. L. Rev. at 1035 (quoting Letter to Levi Lincoln, March 24, 1802, quoted in 9 Ford, The Works of Thomas Jefferson 357 (Fed. ed. 1905)). The Eighth Circuit in Tollett has even noted that "a strong argument may be made that there remains little constitutional vitality to criminal libel laws." Tollett v. U.S., 485 F.2d at 1094. Amicus respectfully requests that the court follow the urging of Leflar and Jefferson and acknowledge the lack of social value to a continued criminal defamation law in Alabama by striking down Ala. Code § 13A-11-163. II. Alabama code § 13A-11-163 is unconstitutional because it does not provide the actual malice standard for statements involving public officials. A. The New York Times Co. v. Sullivan and Garrison v. Louisiana require that actual malice be proven in criminal defamation cases involving statements involving public officials. In 1964, the Supreme Court issued the landmark decision New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed. 2d 686 (1964). In that opinion that Supreme Court created a qualified privilege to protect defamatory statements relating to the official conduct of a public official. In the case, the Montgomery, Alabama police commissioner sued the newspaper, alleging that he had been libeled by statements in a full-page advertisement in the Times. The U.S. Supreme Court reversed a finding of liability and ruled that the Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80. The Court was clearly concerned about the chilling effect that libel had on free speech. In adopting the actual malice standard, the Court recognized "a 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." Id. at 270. That underlying adherence to open speech was emphasized in Hustler v. Falwell, which held that public officials and figures must prove actual malice to recover for the tort of intentional infliction of emotional distress: At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "The freedom to speak one's mind is not only an aspect of individual liberty -- and thus a good unto itself -- but also is essential to the common quest for truth and the vitality of society as a whole." We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. Hustler v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L. Ed. 2d 41 (1988) (citation omitted). The standard established in Sullivan has not been limited to defamation actions brought by public officials. The actual malice requirement was later extended to public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 18 L. Ed. 2d 1094 (1967). The same year that Sullivan was decided, the U.S. Supreme Court also decided Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L. Ed. 2d 125 (1964), a challenge to Louisiana's criminal defamation statute. The District Attorney of Orleans Parish, Louisiana, held a press conference where he made statements disparaging the judicial conduct of the eight judges of the Criminal District Court of the Parish. He was tried and convicted of criminal defamation under the Louisiana code. The Court found that "[w]here criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations." Id. at 67. The Court ruled that the twin requirements under Sullivan, truth as a complete defense and that defendant's statement be made with actual malice, were also necessary for a constitutionally valid criminal defamation statute: Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since ". . . erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive'. . . ," only those false statements made with the high degree of awareness of their probable falsity demanded by [Sullivan] may be the subject of either civil or criminal sanctions. Id. at 74 (citation omitted). The Court held that the prosecutor's statements involved a matter of public interest because "anything which might touch on an official's fitness for office is relevant," and therefore were covered under the constitutional protections. Id. at 77. The court found the Louisiana statute defined malice as common law malice, as adjudged by Louisiana court decisions prior to Garrison. [W]e hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials. . . . The statute is also unconstitutional as interpreted to cover false statements against public officials. Id. The only U.S. Supreme Court case since Garrison to take up the constitutionality of criminal defamation laws was Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L. Ed. 2d 469 (1966). The Court examined the Kentucky criminal defamation law, which derived from the common law. The Court emphasized that where laws impinge on First Amendment rights, "we look even more closely lest, under the guise of regulating conduct that is reachable by police power, freedom of speech or of the press suffer." Id. at 200. The Court held that the Kentucky law violated the Constitution because its elements were so vague as to leave the actual standard wide open. Specifically, the Court was concerned that what conduct would constitute a breach of the peace was undefined. B. Like other state criminal defamation statutes that have been struck down, Alabama Code § 13A-11-163 does not have an actual malice requirement and therefore is facially unconstitutional. Although the U.S. Supreme Court has not taken up the constitutionality of any other state statutes, numerous state courts have ruled on the issue. No state court has ruled post-Garrison that a criminal defamation statute that lacks an actual malice requirement is constitutional for statements of public interest involving a public official or figure. Although the states' statutes in each of the following cases may differ somewhat from the Alabama defamation statute, the holding in each is directly relevant to how the Court in the case at bar should rule on § 13A-11-163. In Gottschalk v. State, 575 P.2d 289 (Alaska 1978), the Supreme Court of Alaska ruled that A.S. 11.15.310 was unconstitutional because it "limited truth as a defense to situations where publication was made with good motives and for justifiable ends" and because it did not provide that conviction could only be had if the statement was made with actual malice, it was unconstitutional on its face. Id. at 292. The state's effort to rescue the statute in this case and others by requesting a judicial interpretation of the statute incorporating Garrison provisions is discussed below. In Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (Ark. 1975), the Supreme Court of Arkansas struck down the state criminal defamation statute because it failed to prohibit punishment for truthful criticism. Also the statute failed to prohibit punishment for false statements regarding public officials unless made with actual malice. "Nowhere in the Arkansas criminal libel statute is there any exception for criticism of a public official." Id. at 712-13. In Eberle v. Municipal Court of Los Angeles District, 55 Cal. App. 3d 423, 127 Cal. Rptr. 594 (Cal. App. 1976), a Court of Appeal of California panel struck down the criminal defamation statutes because they lacked the appropriate definition of actual malice, including an unconstitutional presumption of malice if no justifiable motive is shown for the making of the injurious publication. The court looked to a separate section of the criminal code for a definition of "maliciously," the phrase contained in the statute, and found that it did not mean actual malice. In Nevada Press Assn. v. Del Papa, CV-S-98-00991-JBR (D. Nev. 1998) (attached), the U.S. District Court of Nevada signed off on an agreement between the Nevada Press Association and the Attorney General with regard to the Nevada criminal defamation statute. Judge Johnnie Rawlinson issued a final judgment stating that the law was unconstitutionally overbroad and violated the First Amendment by providing punishment for the publication of truthful statements. In Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (Pa. 1970), the Supreme Court of Pennsylvania held the Pennsylvania criminal libel statute unconstitutional because it did not provide for truth being an absolute defense and there was no recognition of the actual malice requirement from Garrison. The court also held the "negligence" standard spelled out in the state statute was inappropriate under a constitutional analysis. In Fitts v. Kolb, 779 F. Supp. 1502 (D. S.C. 1991), the court was called on to review the South Carolina criminal libel statute, which contained the term "malicious intent." The court refused to find that the term was sufficiently ambiguous to allow for an interpretation consistent with actual malice. Citing both South Carolina case law and the date of the statute's enactment, the court refused to rule that the term was constitutionally sufficient. Alabama Code § 13A-11-163 provides: Any person who writes, prints or speaks of and concerning any woman, falsely imputing to her a want of chastity; and any person who speaks, writes or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony or any other indictable offense involving moral turpitude shall, on conviction, be punished by fine not exceeding $500.00 and imprisonment in the county jail, or sentenced to hard labor for the county, not exceeding six months, one or both, at the discretion of the jury. Ala. Code § 13A-11-163 (2000). The statute lacks an actual malice requirement. Although the statute requires that the statement be made "maliciously," the cases below demonstrate that it is beyond question that this term has been interpreted by Alabama courts - like the Louisiana state court decisions referred to in Garrison - to mean common law malice. Moreover, the date of enactment of the statute suggests that the court intended the definition to mean common law malice, not actual malice. Hence the statute is unconstitutional on its face. In Beal v. The State, 99 Ala. 234, 13 So. 783 (Ala. 1892), the Alabama Supreme Court discusses whether the statute requires the state prove both falsity and maliciousness. In deciding that the state need not prove falsity and maliciousness, that these elements may be inferred from the statement, the court refers to maliciousness as "ill-will or hatred toward the person against whom the accusation was made." Id. at 235. In a separate case, Riley v. The State, 132 Ala. 13, 31 So. 731 (Ala. 1902), the Alabama Supreme Court held it was not "essential to conviction that the utterance should have been intentionally wrong or reckless," a requirement that would have brought the statutory requirements much closer to those in Garrison. Third, in Krasner v. State, 248 Ala. 12, 26 So. 2d 526 (Ala. 1946), the Alabama Supreme Court's references to malice make it abundantly clear that common law malice is the intended meaning of the statute. The court's ultimate decision was that evidence of a defendant's consultation with an attorney was proof that he acted in good faith. The court's repeated references to 33 American Jurisprudence and 37 Corpus Juris are to sections that discuss malice as meaning bad faith. See 33 Am. Jur. § 267, p. 251; 37 Am. Jur. § 699, p. 155 ("Where absence of malice on the part of defendant becomes material to the issue, any competent evidence legitimately tending to show that he made the publication in good faith under belief in its truth is admissible. The testimony of accused on his own behalf as to his motives may be admissible...") The court in Krasner uses the phrase "good faith" three times, and in particular in association with "absence of malice." Finally, the timing of the enactment of the statute casts serious doubt the notion that "maliciously" could mean actual malice. As discussed above, the statute was enacted in 1876 and remains - at least as far as the provision enforced against appellant - unchanged since that time. As the court in Fitts v. Kolb stated, "[b]ecause the criminal libel statute was initially adopted in 1912, it is likely that the term 'malicious intent' was intended to adopt the common law malice standard in place at that time." Simply put, the actual malice requirement was not in effect for the criminal defamation statute in Alabama in 1876 or at any time since then. Amicus urges the court to hold Ala. Code § 13A-11-163 unconstitutional on its face. C. The Court may not invade the legislative function by finding an actual malice requirement in the statute. The state will likely argue, as it did at the trial level, that the court should simply interpret the statute's terms as if they comported with the necessary First Amendment elements under Garrison. However, undergoing such a statutory reconstruction is tantamount to judicial legislation and would be wholly inappropriate under our constitutional requirement for separation of powers. Where the definition of a term is clear, the court may not attach a separate meaning to the term. The state decisions discussed below appropriately refused to accede to a state request for judicial re-drafting. In Gottschalk v. State, 575 P.2d 289 (Alaska 1978) the state reminded the court that when possible, statutes should be construed in a manner consistent with constitutional requirements and asked it to read into the statute constitutionally appropriate elements. The court refused and said it "would be stepping over the line of interpretation and engaging in legislation" to do so. "[I]t would be improper for us to engage in the radical reconstruction necessary to save [the statute] from unconstitutionality. . ." Id. at 296. The Gottschalk court also noted that more than a mere interpretation of "malice" to mean "actual malice" would be required. If we were to engage in the process of narrowing suggested by the State, after striking [the truth as partial defense statute] we would then have to decide whether [the defamation statute] should be limited to cases of private defamation or should apply to defamation of public officials, public figures or concerning public issues; whether truth should be an absolute or a conditional defense to private defamation; and, whether a private false defamation which is neither knowingly nor recklessly false should be criminal. The variety of these choices underscores the essentially legislative nature of the task of bringing our defamation statutes within constitutional bounds. Id. at 296 n. 18. The court in Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (Ark. 1975) also refused to engage in legislative activity by construing the unconstitutional statute in accordance with Garrison provisions. "While this Court must strive to uphold the constitutionality of a statute, it may not read words into a statute to save its constitutionality." Id. at 713. The California court in Eberle v. Municipal Court of Los Angeles District, 55 Cal. App. 3d 423, 127 Cal. Rptr. 594 (Cal. App. 1976) also refused to reinterpret the offending statute. The excision of the objectionable portions of the California criminal libel statutes as mandated by [Sullivan] and Garrison, as hereinbefore discussed, requires a wholesale rewriting, and any attempt at draftsmanship on our part would transgress both the legislative intent and the judicial function. It would constitute a flagrant breach of the doctrine of separation of powers. This we refuse to do. Id. at 433. The court in Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (Pa. 1970) provided some of the strongest language yet regarding a prosecutor's suggestion that the statute simply be interpreted in accordance with the constitutional requirements. The Commonwealth urges us to in effect re-draft the criminal libel statutes in accordance with First Amendment requirements. To accede this request would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation. [citations omitted]. Nor can we perceive any possible means of merely severing out the invalid portions of the statutes, for not only must the legislative body have intended the statute or section to be separable, but also the act must be capable of separation in fact. Id. at 338. As the court in Fitts v. Kolb, 779 F. Supp. 1502 (D. S.C. 1991) pointed out, the "five state supreme courts that have reviewed the constitutionality of criminal libel statutes around the country have all refused to judicially limit them to meet federal constitutional requirements." Id. at 1511. The court also noted that the multitude of interpretations involved in a judicial re-crafting of the statute also stand as a bar to a judicial narrowing of the statute. The court noted that courts may more appropriately modify actions that are based on common law, not statutory law. Finally, the court held that judicial interpretation was inappropriate because it would have to do more than simply interpret "malicious intent" to mean actual malice, it would "have to make wholesale revisions in the statute to provide separately for public and private figures." Id. (quoting Gottschalk). It would likewise be inappropriate for the Court here to radically re-draft the unconstitutional statute to meet the constitutional requirements set out in Garrison. The court would be engaging in judicial legislating that clearly crosses separation of powers lines established by the constitution. The court would have to do more than simply interpret the word "maliciously" from the statute to mean actual malice; it would have to conduct a wholesale revision of the statute to provide separately for public and private figures in order to comply with constitutional requirements. Such a revision oversteps judicial bounds. D. Even if the court does not hold the statute unconstitutional on its face, Ala. Code § 13A-11-163 is unconstitutional as applied because appellant's statements involved matters of public interest. Several state courts have held their criminal defamation statutes to be unconstitutional as applied to statements of public interest. If the court is unpersuaded that the Alabama criminal defamation statute is not facially unconstitutional, it is certainly unconstitutional as applied to statements of public interest involving public officials or figures, as in the case at bar. In State v. Powell, 114 N.M. 395, 839 P.2d 139 (N.M. Ct. App. 1992), the court examined the New Mexico criminal libel statute, enacted prior to Garrison, which provided a statutory definition of "malicious" contrary to actual malice. In Powell, as with the state court cases cited above, the court refused to engage in the sort of judicial legislation that prosecutors, eager to keep criminal defamation statutes, are wont to encourage. The court said the statute was unconstitutional because it did not contain a proper requirement for actual malice: "When a criminal libel statute does not require proof of actual malice, the Constitution prohibits prosecution under the statute of public statements that involve matters of public concern." Id. at 405. Without explanation or analysis, the court did not rule the statute unconstitutional on its face, only ruling that the defendant, who made public statements on a matter of public interest, could not be prosecuted under it. The Colorado Supreme Court issued a similar ruling in People v. Ryan, 806 P.2d 935 (Colo. 1991). The case involved a defendant who was charged with criminal libel under Colorado statute after he posted fictitious "wanted" posters in the trailer park of a woman he had formerly dated. In deciding not to rule the statute facially unconstitutional, the Colorado court pointed out that "[i]n Garrison, however, the Court specifically noted that its development of the [Sullivan] rule in no way impacted the area of purely private libels." Id. at 938. The court reasoned that private individuals have less opportunity to defend themselves from public libels. Therefore, the court ruled, "it is inappropriate to require that defamatory false statements must be made with 'actual malice' in situations such as the present case, where one private person disseminates defamatory statements about another private individual in the victim's community." Id. at 939. In this case, Ala. Code § 13A-11-163 would certainly be unconstitutional as applied to the appellant and all others who make public statements on matters of public interest. Appellant allegedly made public statements about a matter of public interest. Public interest is to be considered broadly, especially in cases involving a public official. The Garrison court declared that any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The [Sullivan] rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character. Garrison v. Louisiana, 379 U.S. at 77. Because appellant allegedly made public statements about a matter of high public interest, Ala. Code § 13A-11-163 is unconstitutional as applied to his actions. Ala. Code § 13A-11-163 is facially unconstitutional because it fails to provide an actual malice requirement for public statements on matters of public interest. Amicus respectfully requests that this Court strike down the statute as facially unconstitutional; alternatively, amicus respectfully requests that it be struck down as unconstitutional as applied to appellant. Respectfully submitted this 15th day of January, 2001.
FOOTNOTES: 1. Note, Constitutionality of the Law of Criminal Libel, 52 Colum. L. Rev. 521, 525 n. 35 (1952). The Note also pointed out that 11 other states made truth alone a justification of most criminal defenses or required falsity as an element of the crime, Id. at 525 n. 36, while seven other states only provided that defendant could admit evidence of truth. Id. at 525 n. 37. Three states had no provisions on the subject. Id. at 525 n. 38. The breach of peace requirement was necessary in only two states: Alabama and Virginia. Id. at 526 n. 41. 2. Ala. Rev. Stat. § 13A-11-163; Colo. Rev. Stat. § 18-13-105; Fla. Stat. ch. 836.01-836.11; Ga. Code Ann. § 16-11-40; Idaho Code § 18-4801-18-4809; Kan. Stat. Ann. § 21-4004; La. Rev. Stat. Ann. § 14:47; Mich. Comp. Laws § 750.370; Minn. Stat. § 609.765; Miss. Code Ann. § 97-3-55; Mont. Code Ann. § 13-35-234; Nev. Rev. Stat. § 200.510; N. H. Rev. Stat. Ann. § 644:11; N.M. Stat. Ann. § 30-11-1; N.C. Gen. Stat. § 14-47; N.D. Cent. Code § 12.1-15-01; Ohio Rev. Code 2739 et seq; Okla. Stat. tit. 21 §§ 771-781; Pa. Stat. tit. 18 § 4412; S.C. Code Ann. § 16-7-150; Utah Code Ann. § 76-9-501 et seq; Va. Code Ann. § 18.2-417; Wash Rev. Code 9.58.010; Wis. Stats § 942.01. 3. Boydstun v. State, 249 So. 2d 411 (Miss. 1971); Nevada Press Ass'n v. Del Papa, CV-S-98-00991 (D. Nev. 1998); State v. Powell, 839 P. 2d 139, 114 N.M. 395 (N.M. App. 1992); Commonwealth v. Armao, 446 Pa. 325, 286 A. 2d 626 (1972); Fitts v. Kolb, 779 F. Supp. 1502 (1991). 4. Colo. Rev. Stat. § 18-13-105; People v. Ryan, 806 P. 2d 935 (Colo. 1971); Ga. Code Ann. § 16-11-40; Williamson v. State, 249 Ga. 851, 295 S.E. 2d 305 (Ga. Ct. App. 1982); Ill. Rev. Stat. 1981, ch. 38, par. 27-1; People v. Heinrich, 104 Ill. 2d 137, 470 N.E. 2d 966 (Ill. 1984) appeal dismissed by 471 U.S. 1011, 85 L. Ed. 2d 294, 105 S. Ct. 2010 (1985); Kan. Stat. Ann. § 21-4004; Phelps v. Hamilton, 59 F. 3d 1058 (10th Cir. 1995); La. Rev. Stat. Ann.§ 14:47; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L. Ed. 2d 125 (1964); State v. Defley, 395 So. 2d 759 (La. 1981). 5. Gottschalk v. State, 575 P.2d 289 (Alaska 1978); 1978 Alaska L. Ch. 166 § 21 (repealing Alaska Stat. § 11-15.310); Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (Ark. 1975); Ark. Code Ann. § 41-2401 has been repealed; Eberle v. Mun. Court for Los Angeles Judicial Dist., 55 Cal. App. 3d 423, 127 Cal. Rptr. 594 (Cal. Ct. App. 1976); 1986 Cal. Stat. 141 § 1 (repealing Cal. Pen. Code § 248-57); 1991 Cal. Stat. 186 § 2 (repealing Cal. Pen. Code § 258-60); State v. Anonymous, 6 Conn. Cir. 751, 360 A.2d 909 (Conn. Cir. Ct. 1976); 1969 Conn. Pub. Acts 828 § 214 (repealing Conn. Gen. Stat. § 53-169).
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