Absence of malice?

From the Summer 2008 issue of The News Media & The Law, page 27.

Going to jail for refusing to reveal confidential sources may grab a reporter headlines, but criminal libel — one of journalism’s oldest menaces — is still alive and kicking.

Indeed, recent charges brought under rarely used state criminal libel statutes serve notice that the government can still resort to criminal sanctions to silence the press.

Despite a 1964 Supreme Court ruling, Garrison v. Louisiana, which overturned Louisiana’s criminal libel statute for punishing truthful statements, some states maintain laws allowing authorities to throw people behind bars for defamation.

Garrison said state criminal libel statutes are unconstitutional if they allow for prosecution of truthful statements. But until courts consider the constitutionality of each state criminal libel statute still on the books, those statutes are still good law.

In 2001 and 2002 respectively, state supreme courts overturned criminal libel laws in Alabama and Utah. And in 2003, a federal district court found Puerto Rico’s law unconstitutional.

But more recently, Colorado state courts and the U.S Supreme Court used a technical legal issue to avoid ruling on the constitutionality of Colorado’s statute. And charges brought under Wisconsin’s criminal libel law slid by unchallenged.

These laws may remain on the books because state courts may be reluctant to overrule the broadly drafted state statutes, assuming the legislation they passed is constitutional, said Ray Dall’Osto, a Wisconsin criminal lawyer who formerly served as the legal director of the Wisconsin Civil Liberties Union Foundation.

And deference to state government in the federal courts has helped keep many of these statutes around for centuries, he said.

Let illegal statutes lie

After five years of wrangling in the case, the U.S. Supreme Court this spring refused to hear a challenge to Colorado’s criminal libel law brought by blogger Thomas Mink. The Court found that Mink, whose home was searched and laptop was seized under the criminal libel law, did not have standing to sue over the statute because prosecutors never actually filed the charge against him.

Instead, the Supreme Court remanded the case back to the U.S. District Court. There, Mink’s 2003 suit was dismissed; the court held that Mink lacked standing to challenge the law prosecutors used to target satirical statements Mink made on his blog, The Howling Pig.

Mink is appealing that ruling in the U.S. Court of Appeals in Denver (10th Cir.).

What Judge Timothy M. Tymkovich found problematic in Mink’s challenge, as articulated in his Tenth Circuit opinion in Mink v. Suthers, is that “a plaintiff cannot retain standing where the prosecutor immediately concludes the statute cannot be constitutionally enforced.” In other words, Mink was not charged under the law, so he had no place to complain.

But before prosecutors “immediately” concluded the statute could not be constitutionally enforced, government authorities searched Mink’s home and took his computer.

The Reporters Committee for Freedom of the Press was one of six news organizations that filed a friend-of-the-court brief in 2005, asking the Tenth Circuit to overrule Colorado’s statute, calling it “unconstitutional on its face.”

The brief said a lower bar for standing has been used in other First Amendment cases, allowing a court to consider “the extent to which the statute itself chills protected speech.” Colorado’s statute, the brief concluded, “is precisely the type of broad-regulating speech properly subject to a facial challenge under the First Amendment.”

One court after another found otherwise — even though the Mink opinion acknowledges that prosecutors concluded the statute was unconstitutional.

David Brougham, a former prosecutor who also represents Susan Knox, the chief deputy district attorney named in Mink’s lawsuit, said he thinks the criminal libel statute is “archaic” but “has its place.”

For example, he described a 2006 case in which a college student, Davis Temple Stephenson, was sentenced to 23 years in prison for publishing false Internet posts, including ones where he pretended to be his college professor. The posts said the professor enjoyed being raped and invited others to visit her home to rape her.

Outside of an extreme scenario like Stephenson’s, Brougham said, criminal libel has become a “philosophical issue.” The statute is “not used, so what’s the big deal?”

Recent happenings

In 1989, U.S. Supreme Court Justice William Brennan, upholding the right to burn the American flag in protest in Texas v. Johnson, said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea just because society finds the idea itself offensive or disagreeable.”

But as a pair of cases filed recently under Wisconsin’s criminal libel law point out, the government may indeed prohibit — and punish — certain types of expression.

In one, a Green Bay man was arrested for posting messages on a real estate network falsely linking a realtor to the Russian mafia, according to the criminal complaint.

Kent E. Haluska was charged with five counts of defamation for the posts and for allegedly mailing defamatory letters to clients of the realtor, who is identified only as “MS”.

Prosecutors claim Haluska was behind one April 4 post on the site ActiveRain.com that said, according to the complaint, “Russians don’t shave their legs or armpits. Therefore, MS is very hairy.” Other area realtors responded to that post, calling MS a “freak.”

Another posting indicated MS was part of the Russian mafia and warned others to “watch out.” Police traced the IP address for these postings back to Haluska and arrested him in his home on May 20.

A pre-trial hearing is scheduled for August 7, according to Andy Nelesen, a reporter for the Green-Bay Press Gazette covering the case.

Another current criminal libel case in Wisconsin centers around two high school seniors who created a “naked collage” with photos of a young woman. She had sent them the pictures on her cell phone.

The Hudson High School students, Tyler J. Schultz and Michael Meyer-Senty, both 17, admitted in late June to using the photos to harm the woman. They entered a court diversion program, under which their records will be cleared if they stay out of legal trouble for a year, the St. Paul Pioneer Press reported.

Even though this type of behavior may not seem worthy of protection, said Mark Goodman, Knight Chair of Scholastic Journalism at Kent State University, any threat to expression could compromise free speech.

Goodman, who previously served as the executive director of the Student Press Law Center, said the laws are used disproportionately against those with very little power, “i.e. students.” And in most cases, he said, the people allegedly libeled are “incredibly powerful.”

Civil lawsuits fill the needs of libel victims and society as a whole, he said, even though some of those people with little power may also have no money with which to pay for such suits.

“That has never been alleged as the justification for filing criminal charges,” he said.

Ancient beginnings

Modern criminal libel law can be traced back to the 16th century English Star Chamber, which heard state security cases behind closed doors. The Star Chamber controlled defamatory statements about the monarchy by making it a crime to utter or print them.

Under these sedition laws, a truthful statement that defamed the government was considered worse than a blatantly false one because it was even more likely to erode people’s confidence in government.

In early American history, where government was liberally criticized despite English sedition laws, free speech was codified in the Bill of Rights.

Not that the First Amendment hasn’t been tested. In 1798 Congress passed the Sedition Act, punishing writings or statements against the government, in response to aggressive criticism of government officials by journalists including Benjamin Franklin Bache, grandson of the famed publisher and inventor. The government arrested and jailed Bache under the Act.

The Sedition Act expired in 1801.

In the early 1800s, however, many states enacted criminal libel laws to dissuade people from avenging slights to their reputation with guns and duels, Brougham, the lawyer in the Mink case, said. Those deadly shootouts were referenced in the Supreme Court’s Garrison decision, quoting one 19th century advocate of Louisiana’s criminal libel law: “Defamation, either real or supposed, is the cause of most of those combats which no laws have yet been able to suppress.”

By the mid-1950s, many states had adopted truth alone as a defense to criminal libel.

The Garrison opinion in 1964 noted the changing mores of modern times and questioned how such criminal libel statutes fit in a culture dedicated to preserving the First Amendment. The Court quoted the Model Penal Code of the American Law Institute, a guide to criminal sanctions across the country, 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.”

Authorities from the American Law Institute recommend states implement only “narrowly drawn statutes, designed to reach words tending to cause a breach of the peace” or “designed to reach speech especially likely to lead to public disorders,” Brennan wrote in Garrison.

However, the Model Penal Code isn’t binding on any of the states.

When the truth won’t set you free

While truth is an absolute defense in civil libel lawsuits, in some states the veracity of a statement may not offer much of a shield against criminal libel charges.

For example, Colorado’s statute says the truth is a defense to the crime except with “libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.” Because this statute is still around, it could result in arguably unlawful prosecution against truthful statements, although such a claim would be dismissed by most courts.

In the civil arena, of course, if the words are true, there’s no case.

This confusion remains despite Justice Brennan’s assessment in Garrison that the state can’t punish the publication of accurate information because the interest in “private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of the truth.”

Garrison did make clear that the Constitution does not protect “knowingly false” statements or statements “made with reckless disregard of the truth.”

Wisconsin’s defamation statute, punishable by a fine of up to $10,000 and nine months in prison, applies to defamatory statements disseminated to a third person without consent. Defamatory matter includes anything that exposes someone to ridicule, even if the statement is true.

The statute is almost never used to prosecute journalists, Dall’Osto said. But the statutes still threaten free speech. He said even cases involving Mafia ties and naked collages could be used to set precedent or be abused by irresponsible prosecutors.

“Whenever words or drawings are made the subject of a prosecution,” he said, “they are potential threats to the First Amendment.”