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High court decision may aid criminal defamation case

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  1. Libel and Privacy

    NMU         ALABAMA         Libel         Jun 5, 2001    

High court decision may aid criminal defamation case

  • An attorney accused of defaming a candidate for lieutenant governor in a political campaign finds state law precedent to challenge antiquated criminal law.

Garfield Ivey’s appeal from a conviction for criminal defamation in Alabama may be aided by a recent state supreme court decision, according to his attorney.

Barry Ragsdale, Ivey’s attorney and law partner, said that the judicial canon struck down in Butler v. Alabama Judicial Inquiry Commission contains the same flaw as the statute under which his client was convicted: it narrowly confined permissible speech in a political campaign.

“Similar (to the Butler case’s holding), Alabama’s criminal defamation statute is facially unconstitutional because it does not contain a requirement of ‘actual malice’ and is not, therefore, narrowly tailored to serve the state’s interest in protecting against criminally defamatory statements,” Ragsdale said in a supplemental brief filed with the Alabama Supreme Court on May 31.

Ivey, an Alabama trial lawyer, was convicted in June 2000 for repeating the claims of a former prostitute that Lt. Gov. Steve Windom had used her services.

In mid-May, the state’s highest court ruled in Butler that a canon of Alabama judicial ethics was an unconstitutional restriction on speech.

In his campaign for the Republican candidate for Chief Justice of the Alabama Supreme Court, Associate Justice Harold See commented on the drug offense sentencing record of his opponent, Roy Moore. After a complaint was filed with the Alabama Judicial Inquiry Commission, See was disqualified from his court duties. He responded by seeking an injunction in federal court, challenging the constitutionality of the canons he was charged with violating.

See won the injunction, and the Commission appealed. The U.S. Court of Appeals in Atlanta (11th Circuit) then certified questions to the Alabama Supreme Court about the applicability of the canons.

The Supreme Court called one canon on campaign communications overbroad because it was not narrowly tailored to protect the integrity of the judiciary. The court held that the canon does not “provide the necessary breathing space” to survive First Amendment scrutiny.

“It is essential that judicial candidates have ‘the unfettered opportunity to make their views known,’ so that voters may intelligently evaluate the candidates’ positions on issues of vital public importance,” the court said in its ruling.

Ragsdale filed a special motion with the Alabama Supreme Court the day after the case was handed down which signifies his plan to rely on the case as authority.

In Ivey’s case, the Reporters Committee for Freedom of the Press filed a friend of the court brief with the Alabama Court of Criminal Appeals in January, arguing that criminal libel laws are antiquated remedies that usually do not survive constitutional scrutiny. Before the court heard the matter, all of judges recused themselves, and the Supreme Court then elected to take the case directly. Oral arguments in Ivey v. Alabama are scheduled for June 20.

(Butler v. Alabama Judicial Inquiry Commission; Ivey v. Alabama; Defendant’s counsel: Barry Ragsdale, Ivey & Ragsdale, Birmingham, Ala.) DB

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