NEWS MEDIA UPDATE · TENTH CIRCUIT · Libel · May 18, 2005
Criminal defamation law upheld in Kansas cases
May 18, 2005 · A Kansas criminal defamation law is not unconstitutionally vague or overly broad because the law only punishes speech that can be proven false and is spoken with actual malice — meaning that the speaker knew it was false or recklessly disregarded whether it was true or not, a federal judge in Kansas City, Kan., ruled last week in two separate cases.
The nearly identical rulings by U.S. Chief District Judge John W. Lungstrum in two related cases arose from a 2003 mayoral election in Baxter Springs, Kan. The Baxter Springs News published a March 2003 letter-to-the-editor by local businessman Charles How and a guest editorial by columnist Ronald Thomas criticizing City Clerk Donna Wixon. How later became a mayoral candidate.
Two days after the letter and editorial ran, Wixon swore out a criminal complaint against How, Thomas and the newspaper’s publisher for violating the city’s criminal defamation ordinance. The ordinance, which is adapted from a state criminal defamation law, carries a maximum penalty of a $2,500 fine and one-year imprisonment.
The law defines criminal defamation as “communicating to a person orally, in writing, or by any other means, information, knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.”
City Attorney Robert Myers initiated prosecution in state court, but removed himself from the case citing a conflict of interest. When the city failed to appoint a special prosecutor by June 2003, the trial judge dismissed the charges, ruling that they could be brought again by a special prosecutor. Following the dismissal, Wixon and Myers announced that the charges would be brought again.
How and Thomas separately sued the city, Wixon and Myers in federal court later in 2003, alleging that the criminal defamation law was unconstitutional, and charging the defendants with abuse of process. They argued that the law violated the 14th Amendment’s due process guarantees because it was too vague for an ordinary person to understand what was prohibited, and that the law violated the First Amendment because it prohibited protected as well as unprotected speech.
Lungstrum ruled last week that the state law was not unconstitutionally vague because it only prohibits communication that is known to be false and communicated with actual malice. Lungstrom found that the additional descriptive language in the law served to narrowed its reach, not make it vague, according to the May 10 rulings.
Lungstrom also ruled that the law was not overly broad because the language of the law “insures that criminal charges will only be brought when it can be proven that the statement, whether phrased as an opinion or otherwise, is false.”
Lungstrom did not dismiss How and Thomas’ claims that they were being improperly prosecuted, and their cases will proceed on those claims.
(How v. City of Baxter Springs, Media Counsel: Sam L. Colville, Holman Hansen & Colville, Kansas City, Mo.; Thomas v. City of Baxter Springs, Media Counsel: William J. Skepnek, Skepnek Law Firm, Lawrence, Kan.) — GP