Alabama Supreme Court declares criminal libel statute unconstitutional

The Reporters Committee for Freedom of the Press hailed a decision by the Alabama Supreme Court declaring the state criminal defamation statute unconstitutional. The court ruled 8-1 on July 6 that the statute did not conform to guidelines set up by the U.S. Supreme Court.

Garfield Ivey, an officer of the state trial lawyers’ association, was convicted in June 2000 of defaming Steve Windom, now the Alabama lieutenant governor. The prosecution alleged that Ivey was part of a plot to defeat Windom in the November 1998 lieutenant governor race by paying a former prostitute, Melissa Myers, to claim that Windom had been a client of hers and had physically abused her.

“We are very pleased that the Alabama Supreme Court specifically recognized that criminal libel statutes traditionally have been used to squelch speech in political campaigns,” said Lucy Dalglish, executive director of the Reporters Committee. “This political misuse of a statute was exactly what the late Justice William Brennan was referring to when he spoke in New York Times v. Sullivan of the need for political speech to be ‘uninhibited, robust and wide-open.'”

The Reporters Committee filed a friend of the court brief in the case, Ivey v. State of Alabama, arguing that the statute was unconstitutional because it was an antiquated law that lacked an actual malice requirement. The U.S. Supreme Court first required actual malice in civil defamation cases in New York Times v. Sullivan in 1964. The Supreme Court extended that requirement to criminal defamation cases later that year in Garrison v. Louisiana.

The Alabama Supreme Court was clearly receptive to the arguments in the friend of the court brief, citing many of the same passages as the Reporters Committee. In striking down the 125-year-old statute because it lacked an actual malice requirement, the court refused to construe the statute’s phrase “maliciously” to mean “actual malice.”

“[T]he United States Supreme Court has held that criminal defamation statutes such as ours must require a showing of ‘actual malice,’ as defined in New York Times,” Justice Champ Lyons said in the opinion. “Alabama’s criminal defamation statute requires no such showing, and this Court, without overstepping its constitutional limitations, cannot construe the statute as if ‘actual malice’ were a requirement.”

The Reporters Committee became involved in the case because criminal defamation statutes, although rarely used, are a threat to journalists across the country. Journalists Edward Powers and David Carson, publishers of The New Observer, a small newspaper in Kansas City, Kan., are currently being prosecuted for violating the Kansas criminal defamation statute. In 1988, newspaper publisher Jim Fitts was jailed and indicted under the South Carolina statute, which was later ruled unconstitutional.

“I don’t think that the Reporters Committee’s involvement in this case as a friend of the court should be understated. … [they] saw the bigger picture, involving critical First Amendment freedoms,” Barry Ragsdale, attorney for the defendant, said.