Jury delivers rare criminal libel conviction

From the Summer 2002 issue of The News Media & The Law, page 48.

The editor and publisher of a Kansas newspaper plan to appeal a jury verdict finding them guilty of criminal libel, a crime that has become obsolete in most states.

The Wyandotte County District Court jury on July 17 convicted Observer Publications, publisher David Carson and editor Edward H. Powers Jr. of seven counts each of misdemeanor libel.

Each count carries a maximum fine of $2,500 and a jail term of up to a year. No sentencing date has been set. Carson and Powers will ask District Judge Tracy Klinginsmith to set aside the verdict, and will appeal if the judge does not, said Carson’s attorney, Mark Birmingham.

The criminal charges concerned reports in The New Observer that Wyandotte County Unified Government Mayor Carol Marinovich and her husband, Wyandotte County District Judge Ernest Johnson, did not live in Wyandotte County, where they are required by law to live to hold their elected jobs.

The newspaper, which is published monthly in print and online, asked in its November 2000 issue: “Is gossip that Marinovich lives in Johnson County true?”

In January 2001, the newspaper admitted Marinovich did not live there. But the paper said, “We are completely convinced that ‘Mayor/CEO’ Carol Marinovich and her husband, District Court Judge Ernie Johnson maintain a home in Johnson County.”

Powers believes the criminal charges were politically motivated.

The New Observer has frequently criticized Marinovich and District Attorney Nick Tomasic, who filed the charges. Judge Klinginsmith recused Tomasic and the prosecutor’s staff from the case, finding that Tomasic had a “history of contentiousness” with the newspaper and had a “political alliance” with the mayor.

A spokesman for Tomasic referred questions to Special Prosecutor J. David Farris, whom the judge appointed to prosecute the case. Farris disagreed that his prosecution of the case was politically motivated, but conceded that there was a political history between the newspaper, Marinovich and Tomasic.

Carson and Powers were prosecuted under a state law that prohibits “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.” (Kan. Stat. Ann. § 21-4004)

Less than half of the states have a criminal defamation statute. Some of those laws have been invalidated by court decision.

The concept of imprisoning someone for speech is a throwback to the 16th century English Star Chamber, the secretive court that sat in closed session on cases involving state security.

The Star Chamber used criminal libel laws to control statements against the crown. It justified the laws by arguing that defamations caused breaches of the peace.

In the 19th century, criminal defamation laws were viewed as a protection against duels.

Under a 1964 ruling of the U.S. Supreme Court, state criminal defamation laws are unconstitutional unless they include a requirement that the state prove actual malice — knowledge of falsity or reckless disregard for the truth. (Garrison v. Louisiana)

The Kansas Legislature rewrote the criminal libel statute in 1995 to include the actual malice standard.

The Kansas Press Association will ask state lawmakers to repeal the law, said Jeff Burkhead, executive director of the press group. The law is unnecessary, and civil courts are a more appropriate forum for libel claims, he said.

“The law is archaic,” Burkhead said. “It’s government encroachment, rather than citizens taking this through the (civil) court system, which is the way we think it should be done.” (Kansas v. Carson) — MD