At Least About 200 Criminal Libel/Slander Prosecutions in Virginia from 2001 to 2008

I had thought that criminal libel laws, which apparently still exist in about one-third of the states, were nonetheless almost never used. But a quick search through the Westlaw criminal records database reveals about 200 criminal libel prosecutions in Virginia from 2001 until 2008. Here’s the relevant statute:

Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any female of chaste character, any words derogatory of such female’s character for virtue and chastity, or imputing to such female acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or shall use grossly insulting language to any female of good character or reputation, shall be guilty of a Class 3 misdemeanor.

The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.

I’m not sure just how the statute is used, since none of these prosecutions seem to have produced published or otherwise Westlaw-accessible opinions. I suspect that the portions limited to females are unconstitutional under the Equal Protection Clause; but even if I’m right, some prosecutors and judges might well disagree. If any of you know anything more about how the statute is used, I’d love to hear it.

Also, if you’re a law student or lawyer in Virginia, and you’re looking for an interesting law review article to write, you might want to find the records, drive around local courthouses, and see exactly how the statute is being applied. Is it mostly being used to punish people who say allegedly false things about ex-lovers? About the police, prosecutors, judges, or politicians? About local shopkeepers with whom they are having disputes?

The only other criminal libel prosecutions I could find in the CRIM-ALL database that were dated 2001 or later were 20 from Washington State, three from Florida, one from Oklahoma, one from Oregon, and one from Texas. About half of the Washington ones were under a special “slander of woman” statute that was repealed in 2005. The Texas one was for slander of a savings & loan, under a special statute barring slander of financial associations. [UPDATE: Note, of course, that CRIM-ALL includes only a subset of all prosecutions.]

Note that criminal libel statutes are probably constitutional under current First Amendment law, even as to speech about public figures on matters of public concern, if limited to reckless or knowing falsehoods. If the speech is about private figures on matters of public concern, the same limitation is probably required (since that’s what’s required even as to punitive damages in civil cases). If the speech is on matters of private concern (an ill-defined category, see pp. 47-51 of this article), it could conceivably be criminalized even if the speaker made a negligent error, or perhaps even a nonnegligent error; but I know of no caselaw on that.