When Robert Frese took to the comment section of a news story about Police Chief William Shupe, he likely had no idea his accusations of corruption would earn him a misdemeanor charge — but that’s exactly what happened in Exeter, New Hampshire last year.
Robert Frese was accused of violating New Hampshire’s criminal defamation law, which makes it a misdemeanor to intentionally and falsely disparage another person. New Hampshire’s law — and others like it in 24 other states around the country — literally make it a crime to say mean things about people.
Frese was arrested after he posted comments to a Seacoast Online article about a retiring police officer. Frese had a number of issues with the officer and accused him of misconduct. He also wrote that Chief Shupe “covered up for this dirty cop.” A few weeks later, the Exeter police filed a criminal complaint against Frese. The complaint said that Frese “purposely communicated on a public website, in writing, information which he knows to be false and knows will tend to expose another person to public contempt, by posting that Chief Shupe covered up for a dirty cop.” The police ultimately dropped the charges — after the ACLU of New Hampshire spoke out against Frese’s prosecution.
But the problem extends well beyond New Hampshire: a total of 25 U.S. states currently have criminal defamation laws on the books.
Now, the ACLU is challenging such laws in federal court.
These laws have no place in modern American democracy. That’s why we filed a lawsuit Tuesday in New Hampshire federal court arguing that criminal defamation laws violate the First Amendment.
It’s important to note that a disproportionate number of criminal defamation convictions have involved politicians and law enforcement officials. This is no coincidence. Whenever people in power are given a tool to punish critics, you can bet they’ll be sorely tempted to use it. As a result, criminal defamation laws are often used to punish political speech lying at the heart of the First Amendment, just like the old seditious libel laws.
The ACLU acknowledged that free speech “does not give anyone the absolute right to spread malicious lies about their fellow citizens” but made the case that civil lawsuits are an adequate form of redress in such situations.
Criminal defamation laws, on the other hand, serve to enable — if not encourage — abuse of power by those who would tramp down on freedom of speech when it suits them.
The Exeter Police Department’s criminal complaint against Frese is a textbook example of the use and abuse of criminal defamation laws. Someone who has had a history of trouble with the police went to the internet to air his grievances, and the police department itself decided to prosecute him
This is absurd, and it’s a telling reminder of what happens when law enforcement is given the power to crack down on expression. It’s time we toss criminal defamation laws into the dustbin of history, where they belong.