Two Wisconsin high school students were charged with criminal defamation after assembling and posting a nude photo collage of a female classmate.
After the unnamed classmate accused him of throwing a bowling ball through the front door of her home, Tyler Schultz, who previously dated the student, composed the montage using 11 photographs that she had sent to him and other students at the school via cell phone. Michael Meyer-Senty, another of her former boyfriends, later posted five copies of the collage throughout one of the school’s locker rooms.
Under Wisconsin law, criminal defamation is a Class A misdemeanor, defining defamatory matter as “anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other’s business or occupation.”
Criminal defamation statutes, which when used are often targeted at the news media, hearken back to a legal legacy that stands in stark contrast to the free speech principles embodied in the First Amendment. As a result, those that remain on the books rarely serve as the basis for criminal charges. Under the U.S. Supreme Court’s decision in Garrison v. Louisiana, a criminal defamation statute must meet the same Constitutional requirements as civil defamation, namely, falsity and fault. Falsity in particular seems like it would be a major stumbling block for the county district attorney to overcome in these circumstances as the collage does not appear to communicate any fact that is provably incorrect.