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Newspaper editor, publisher get fines and probation for criminal libel

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  1. Libel and Privacy

    NMU         KANSAS         Libel         Dec 4, 2002    

Newspaper editor, publisher get fines and probation for criminal libel

  • Two Kansas newsmen will appeal their conviction and challenge the constitutionality of the state’s criminal libel law.

A Kansas trial court judge handed down sentences of fines and probation for the editor and publisher of a local newspaper Nov. 27 after they were convicted earlier this year of criminal libel, a crime that has become obsolete in most states.

David W. Carson and Edward H. Powers Jr., who produce the Kansas City-based newspaper The New Observer, were fined $3,500 each. Judge Tracy Klinginsmith, of the Jackson County District Court, also sentenced the newspaper’s publisher and editor to unsupervised probation for one year.

The judge suspended all but $700 of the fines for each defendant, pending an appeal in the case.

Powers, a disbarred attorney, said the prosecution was “politically motivated.” The criminal charges against him and Carson concerned reports 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 legally required 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?”

The New Observer has repeatedly been critical of public officials in the state.

In announcing the sentences, Klinginsmith reportedly said the case was a “test case” and hinted that a higher court would have to decide the validity of the statute once the defendants appeal.

The judge recognized that the reports in question concerned political speech but said the Kansas law made no exception for such speech. Political speech is generally considered the “core,” or most protected, form of First Amendment speech.

Carson and Powers plan to appeal their conviction on several grounds, including juror misconduct, prosecutorial misconduct and unconstitutionality of the statute.

Fewer than half the 50 states have criminal libel statutes, and prosecutions for speech are rare. Just weeks before the Kansas sentencing, the Utah Supreme Court struck down an outdated criminal libel statute in that state.

The Kansas Supreme Court could eventually decide the constitutionality of its own criminal libel law if Powers and Carson continue their appeal.

Powers recognized that he and Carson are reluctant “guinea pigs,” who are testing the criminal libel law. They have 10 business days to file a notice of appeal in the case.

(Kansas v. Carson; Media counsel: Mark Birmingham, Kansas City, Kan., for David Carson; Douglas J. Patterson, Leawood, Kan., for Edward Powers and Observer Publications) WT

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