Antiquated libel statute declared unconstitutional

From the Summer 2001 issue of The News Media & The Law, page 14.

The Alabama Supreme Court struck down the state criminal defamation statute as unconstitutional on July 6, ruling 8-1 that the statute did not conform to guidelines set by the U.S. Supreme Court.

“The 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 [v. Sullivan],” 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 for Freedom of the Press, which filed a friend of the court brief in the case, applauded the decision.

“The decision is a victory for free speech in the state of Alabama,” Lucy Dalglish, executive director of the Reporters Committee, said. “The court agreed with our arguments at every turn.”

In a case that resembled the plot of a John Grisham novel, Garfield Ivey, an officer of the state trial lawyers’ association, was convicted 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 was a client and physically abused her. Ivey and the trial lawyers’ association had supported Windom’s opponent in the election. Myers, who was soon thereafter jailed on a probation revocation, recanted her story from jail and was released.

Ivey’s role in Myers’ story aroused the attention of law enforcement. After a Mobile County grand jury failed to bring criminal charges, the newly elected Lt. Gov. Windom asked the state attorney general to appoint a special prosecutor. That special prosecutor, Tommy Chapman, presented the case against Ivey to a specially empaneled grand jury, which elected to bring charges in early 1999. Ivey was convicted of criminal defamation in June 2000.

Ivey appealed to the Alabama Court of Criminal Appeals, but the entire court recused itself after it received all of the briefs in the case earlier this year. The Alabama Supreme Court then accepted the matter and heard oral arguments on June 20.

The state high court held the 125-year-old statute, section 13A-11-163, was unconstitutional because it lacked a requirement of “actual malice,” that is, a knowledge of falsity of a statement or making a statement with a reckless disregard of the truth. The U.S. Supreme Court established the actual malice standard for cases involving public officials in 1964 in New York Times v. Sullivan. The requirement was extended to criminal defamation cases later that year in Garrison v. Louisiana. The Alabama statute at issue required only that the statement be made “falsely and maliciously.”

“Section 13A-11-163 does not on its face state that ‘actual malice,’ as the term is defined in New York Times and Garrison, is required in a prosecution for criminal defamation when the alleged victim is a public official or public figure,” Lyons wrote. “No Alabama caselaw has determined ‘actual malice’ to be the standard in a prosecution for criminal defamation.”

The court refused to follow Chapman’s suggestion that “falsely and maliciously” meant the same as “actual malice.”

“The terms ‘actual malice’ and ‘maliciously’ are not interchangeable,” Lyons said. Lyons also pointed to an Alabama case from 1893 that implicitly defined “maliciously” as “ill-will or hatred towards the person against whom the accusation was made, or a purpose to injure him.”

Chapman argued that the statute was “reenacted” in 1980 as part of a renumbering to the state’s criminal statutes and therefore enjoyed a presumption of validity because it followed the U.S. Supreme Court cases. The court disagreed and pointed to the first part of the statute, which allowed punishment for speaking or writing “of and concerning any woman, falsely imputing to her a want of chastity.”

“The fact that in reenacting the criminal defamation statute the Legislature retained this unconstitutional gender-based provision rebuts any presumption that the Legislature intended to comply with the United States Supreme Court precedents,” Lyons said.

The court also pointed out that the Alabama legislature was perfectly capable of drafting a statute that contained the actual malice requirement as required by New York Times and Garrison; the statutory section dealing with punitive damages in a civil action alleging libel contains a correct definition of actual malice.

The court refused to construe “maliciously” to mean “actual malice.” The court said that to do so would require several decisions that “would constitute judicial legislation and would thus violate the separation of powers doctrine.”

The court also cast a suspicious eye on any use of criminal statutes to punish defamatory speech. Lyons noted that criminal defamation statutes are often wielded as swords by victors in political campaigns against their defeated foes. Ivey’s attorney, Barry Ragsdale, argued that such a scenario took place in this case.

“This case is a glaring example of an abuse of power, where the entire machinery of the State of Alabama was used for personal and political gain by a politician,” Ivey said after the opinion was released. “This was a case that should have never been brought, and that was brought in spite of the law and the facts. We must all work diligently to ensure that this never happens again.”

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, in Kansas City, Kan., are currently being prosecuted for violating the Kansas criminal defamation statute. (See NM&L, Spring 2001). In 1988, publisher Jim Fitts was jailed and indicted under the South Carolina statute, which was later ruled unconstitutional. (See NM&L, Summer 1988)

“I don’t think that the Reporters Committee’s involvement in this case as a friend of the court should be understated,” Ragsdale said. The attorney felt that the news media in the state “was afraid to take a stand in this case for fear of inviting the wrath of a politically powerful lieutenant governor who had already proved that he would go to great lengths to punish his critics.” — DB