News.com 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."
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.
The definition of crimial libel in Oklahoma is 21 Okla. Stat. § 771 (2005 OSCN)
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.
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?
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
The Delaware supreme court is about to hear a case on discovery standards for web-based civil libel of a politician.
Link.
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.