Criminal libel statute upheld in anti-gay activists case

Criminal libel statute upheld in anti-gay activists case

10/09/95

KANSAS–Two anti-homosexuality activists plan to appeal a mid- July decision of the U.S. Court of Appeals in Denver (10th Cir.), which upheld a Kansas criminal defamation law against their claim that the law was unconstitutional.

The court ruled that the law, which criminalizes libel and slander, is constitutional because it requires proof of actual malice — knowledge that the information is false or reckless disregard of its truth or falsity — in cases involving matters of public concern.

The court reversed a decision by the federal District Court in Topeka, Kan. that had struck down the statute as being “facially overbroad” and had enjoined all pending criminal prosecutions under the law.

Two Topeka residents who led a campaign against homosexuality, Fred Phelps and Edward Engel, sought a federal injunction and a declaratory judgment after Phelps became the target of six criminal defamation prosecutions beginning in 1992.

The prosecution of Phelps was based on statements, typically alleging that various members of the community were homosexuals or had contracted the AIDS virus, that were made while picketing, distributing fliers, and transmitting facsimiles.

The Kansas statute makes it a misdemeanor to “maliciously” communicate false information “tending to expose another living person to public hatred, contempt or ridicule, or … to degrade and vilify the memory of one who is dead and to scandalize or provoke his living relatives and friends.”

While the court found the law to be “sufficiently ambiguous,” it ruled that it would construe the statute to require proof of actual malice in cases involving matters of public concern. (Phelps v. Hamilton; Civil Plaintiffs’ Counsel: Margie J. Phelps and Elizabeth M. Phelps, Topeka)