Criminal defamation laws are 19th century holdover

From the Spring 2001 issue of The News Media & The Law, page 15.

Modern criminal defamation laws sprung up centuries ago as a way to combat the problem of breaches of the peace, such as the “chivalrous satisfaction” men got from duels. The history of criminal libel also is notoriously intertwined with government attempts to suppress criticism.

This history, which one federal district court has called “ignominious,” demonstrates how slowly laws change. The law governing criminal prosecutions for libel in England today was enacted in 1792. Many of the U.S. state laws were initially enacted in the early to mid-1800s.

Modern criminal libel law is the product of 16th century innovations in the English Star Chamber, the secretive court that sat in closed session on cases involving state security. The Star Chamber needed a more effective method than civil defamation laws to control statements about the crown. Such control, one legal scholar said, was “an effect of overwhelming importance in an age when the peace and security of the state was manifestly precarious and when printing and the great intellectual movement of which it was one symptom had made political writings take on a new and vital importance.”

The Star Chamber also premised its law on the notion that defamations breached the peace. The common belief that true statements were at least as likely to cause breaches of the peace as false ones led to the criminal punishment of both true and false statements.

In a case of libel against the deceased Archbishop of Canterbury and a living bishop in 1609, the Star Chamber used the ancient Roman code that punished certain defamations because of their anonymous character and scandalous nature. Of the case, Sir Edward Coke wrote that the Star Chamber ruled that “although libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends (as a consequence) to quarrels and breach of the peace, and may be the cause of the shedding of blood and great inconvenience.”

So went the saying, “the greater the truth, the greater the libel.”

Libels against a magistrate or other public person, the Star Chamber reasoned, should be subject to an even greater penalty because “it concerns not only the breach of the peace, but also the scandal of the Government.”

In the United States, truth was apparently always admissible, if not as a defense, as evidence to a charge of libel. John Peter Zenger, who was famously charged with seditiously libeling the governor of New York in 1735, won an acquittal after his attorney argued that the jury should be allowed to decide the case as if the allegedly defamatory statements were true.

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 a substantive defense after Alexander Hamilton defended printer Harry Croswell in a prosecution for allegedly libeling Thomas Jefferson in 1803. A Massachusetts court followed this precedent in 1808. But it wasn’t until the 1820s that states’ legislatures adopted the requirement that truth be a defense. 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.

When the Model Penal Code was written in 1961, the drafters were reluctant 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,” the drafters said in a tentative draft. “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.”

In 1964, the U.S. Supreme Court dealt a blow to many criminal libel statutes across the nation with its decision in Garrison v. Louisiana. In Garrison, the court heard a Louisiana state case in which a district attorney blamed a large backlog of pending criminal cases to the laziness of local judges and suggested that the judges hampered his ability to enforce vice laws by refusing to authorize investigation expenses.

The controversial prosecutor, Jim Garrison, was tried and convicted for libel. A unanimous Supreme Court reversed the conviction, holding the Louisiana statute unconstitutional because it lacked a requirement that the state prove “actual malice” — knowledge of falsity or reckless disregard for the truth — and because it did not make the statement’s truth a defense.

But underlying the court’s decision was perhaps an acknowledgment that punishing libel as a crime had become contrary to modern law. Although the court did not rule that all criminal defamation statutes were unconstitutional, its tone and rhetoric point in that direction.

“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,” Justice William J. Brennan said in Garrison.

After the Garrison decision, many state legislatures repealed their criminal defamation statutes. In others, state courts struck down the laws as unconstitutional for the same reasons the court gave in Garrison.

“It’s a real threat to free speech if you make it too easy to win these cases,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “It would stifle speech, particularly in the context of a political campaign.”

Of the states that still have criminal defamation laws on the books, only Kansas has a statute that has survived a court attack, even though it then lacked an express actual malice requirement. In Phelps v. Hamilton, the U.S. Court of Appeals in Denver (10th Cir.) read an actual malice requirement into the statute even though one didn’t exist after ruling that the legislature, which enacted the statute after Garrison, must have intended to include one.

Many of the remaining criminal defamation statutes across the country are considered to be suspect, but because so few cases are brought, there are few opportunities to challenge the statutes.

But with new cases popping up across the nation, perhaps such opportunities have arrived. — DB