Criminal Libel and Web Sites: reports:

Oklahoma prosecutors will soon weigh whether to take up criminal charges against a former mayoral candidate accused of libeling a longtime state politician on his Web forum.

In a police report filed Aug. 16, former state senator and convicted felon Gene Stipe charged that Harold King had published false information about Stipe and his family on his Web forum, the McAlester Watercooler, said Capt. Darrell Miller of the McAlester, Okla., police force. The nature of the information was not disclosed. . . .

Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The government would have to prove, beyond a reasonable doubt, that the statement was false, and that the defendant knew it was false, or at least knew there was a substantial chance it was false and didn't adequately investigate that possibility. (This at least would be the rule for statements on matters of public concern.) The Court's most recent decision about this, Garrison v. Louisiana (1964), basically required this sort of proof, but did not go further and suggest that all criminal libel laws are per se impermissible. The article goes on to say that "[A]ccording to a 2003 study by the Media Law Resource Center[, a] total of eight suits -- or about 10 percent of all criminal libel cases [presumably over the last few decades] -- have involved Web postings by nonprofessional media. In half of those Web cases, including the three most recent ones, the charges were dropped. One of those recent cases led to a Utah criminal libel law being declared unconstitutional."

akiva eisenberg (mail):
Intriguing. Treasonous speech is constitutionally protected (with no tests for truth, malice, etc., for obvious reasons), libel is not.
8.23.2005 4:57pm
Eugene Volokh (www):
The theory is that false statements of fact lack constitutional value. Opinions, including ones that are intended to help the enemy, may be quite valuable, for instance if they contain criticisms of the government that even loyal citizens may find useful and important.

The difficulty as to libel law, it seems to me, is with risk of error: Judges and juries may erroneously conclude that something is false when it's actually true (or is opinion). Speakers may be deterred from saying things that they think are true (and thus constitutionally valuable) for fear that either they might be mistaken, or future judges and juries will be mistaken. The protection for innocent falsehoods (i.e., ones where the speaker doesn't know the statement is false or highly likely to be false) is supposed to diminish that risk, and the resulting deterrence on protected speech. But, either as to civil liability or criminal punishment, it doesn't eliminate the risk.
8.23.2005 5:47pm
John Jenkins (mail):
I'm not sure that's right. Prof. Volokh would know, but to the extent speech could constitute "giving aid and comfort to the enemy" it might be unprotected.

The definition of crimial libel in Oklahoma is
[A] false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.
21 Okla. Stat. § 771 (2005 OSCN)

A privileged publication is one made:

First. In any legislative or judicial proceeding or any other proceeding authorized by law;

Second. In the proper discharge of an official duty.

Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.

In all cases of publication of matter not privileged under this section, malice shall be presumed from the publication; unless the fact and the testimony rebut the same. No publication which, under this section, would be privileged, shall be punishable as libel.
21 Okla. Stat. § 772 (OSCN 2005).

That creates a presumption of what seems to be an element of the crime, which if I recall criminal law correctly is constitutionally impermissible. Each element must be proven beyond a reasonable doubt. That doesn't make the first statute unconstitutional, though.

Interestingly, the statutes criminalizing libel in Oklahoma date to the 1910 criminal code. Criminal libel is punushed as a misdemeanor with not more than one year in jail and a fine of not more than $1000.00. 21 Okla. Stat. § 773 (OSCN 2005). Incidentally, by statute a conviction for criminal libel means that one "shall also be civilly liable to the party injured." Id. Since the burden is higher at the criminal trial, that only makes sense as a matter of res judicata.
8.23.2005 6:00pm
Chris Cotner (mail):
It might not matter whether you can prosecute for criminal libel, as former Senator Gene Stipe is, how shall I put it . . . a heavyweight in that area of the state. If Senator Stipe wants the man prosecuted, he will be prosecuted, and if Senatory Stipe wants a guilt verdict . . .
8.23.2005 6:14pm
akiva eisenberg (mail):
Prof. Volokh:
Based on your comment, it appears that an effective defense against libel would be to preface every statement with, "In my opinion...." (Or, in webese, IMHO). However, in my amateur reading of Mr. Jenkins cite of the Oklahoma statute I did not notice an exemption for (potentially valuable) opinion.

Note that those who are responsible for defining criminal behavior tend to create a privilege for themselves, as per the aformentioned citation. As usual.

From an ethical perspective, why is libel protected in judicial proceedings?
8.23.2005 6:15pm
IANAL, but I'd imagine one is protected from libel in judicial proceedings so as to encourage the giving of testimony by relieving witnesses from the fear of being sued for what they testify to. Sure, truth is a defense, but it still costs money to defend yourself. If witnesses could be sued for what they say in a trial, it would be significantly tougher to get witnesses to testify, I'd bet.
8.23.2005 6:54pm
John Jenkins (mail):
Statements in the form of "in my opinion, X" should be protected because they are necessarily not false, unless you're lying about your opinion. But there is a difference between, "In my opinion X is a low-down dirty snake," which doesn't really make a factual claim, and "In my opinion X robbed Y," which does assert the factual claim that X robbed Y.

Potection for judicial proceedings might come up in criminal cases where an attorney will argue someone other than his client (perhaps someone specific who might otherwise have a libel claim) committed the crime therefore the attorney's client could not have. If the other person were later exonterated (or the client convicted) we wouldn't want the attorney prosecuted for zealously defending the attorney's client
8.23.2005 7:35pm
Mary Katherine Day-Petrano (mail):
Well, it seems to me that things said in a judicial proceedinhg that would be defemation, or at least are malicious and false, would be punishable as perjury in most cases. The rest would seem to include allegations made on information and belief, for example, or as stated in the above post. Maybe I'm wrong, but that is just my common sense observation.
8.23.2005 7:48pm
arbitraryaardvark (mail) (www):
The statute, if I've read it right, says 'false or malicious', whereas under Sullivan it needs to be both, at least where as here it's a public figure. Is this curable by interpreting "or" as "and", or would the statute need to be struck down?
The Delaware supreme court is about to hear a case on discovery standards for web-based civil libel of a politician.
8.23.2005 10:42pm
John Jenkins (mail):
It's a rule of construction that a statute will be read to be constitutional if such an interpretation is possible. Since malice in libel includes falsity, Oklahoma courts will probably read it as superfluous repetition. Since the Supreme Court is bound by a state court's gloss on a statute, that would make it not unconstitutional unless the Court decides to go ahead and rule that criminal libel is unconstitutional as such.

There might be a split standard here, though. The story indicates that the published material was about Stipe and his family. Even if Stipe is a public figure (and thus you have to meet higher standard), does his status extend to his family? That seems like a fact-intensive inquiry to me, but it might be the case that there are multiple counts and the standard of proof is different as to each one.

I don't even know if these charges will actually be filed (as of right now a search of Oklahoma District Court filings does not turn up a case against King). I sure hope smarter heads prevail, but D.A.s in Oklahoma aren't known for their spine or their good sense.
8.23.2005 11:04pm