Two stories from the past month. ABC News reported yesterday:
A man [J.P. Weichel] accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged [in October] with two counts of criminal libel....
The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child.
Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect. Weichel shares a child with the woman....
And from The Pueblo Chieftain a month ago:
Prosecutors this week invoked an arcane, seldom-used statute to charge a Pueblo County man for allegedly disseminating false information about someone.
Robert Ezekiel Tafoya, 51, was charged with one felony count of criminal libel, according to court records. Convictions for the offense are punishable by up to 18 months in prison for first-time offenders....
District Attorney Bill Thiebaut said Tafoya used modern technology, in this case computer programs, to alter pictures of his accuser.
“The investigation showed that the defendant pasted pictures of the face of one person onto the body of other persons and published or disseminated the pictures electronically to others,” Thiebaut said. “We believe it impeached the reputation (of his accuser) and those pictures were being used to ridicule her.” Thiebaut would not elaborate on the relationship between Tafoya and his accuser, or what the doctored photos depicted, except to say that they cast Tafoya's accuser “in a compromising position.”
For more recent items from other states, see this Reporters' Committee for Freedom of the Press page.
Colorado is one of the substantial minority of states that still has criminal libel laws. Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The Court's most recent decision about this, Garrison v. Louisiana (1964), required that in cases on matters of public concern about public figures a defendant couldn't be held liable unless the prosecution could prove that the defendant knew the statement was false, or was aware of a high probability that it was false. I'm pretty sure, given later cases, that the same would be true in cases on matters of public concern about private figures. But the Court has not gone further to hold that all criminal libel laws are per se impermissible, and it also has not spoken to what could be done when the statement is false and on a matter of purely private concern, which the statements in these cases likely qualify as being.
The Colorado Supreme Court has held that its current criminal libel statute was constitutional, at least as to statements on matters of private concern, and has even said that it was constitutional to place on the defendant the burden of proving truth. See People v. Ryan, 806 P.2d 935 (Colo. 1991). I think the court was wrong about the current statute, because the statute is unconstitutionally overbroad even as modified by the court decision: (1) It punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern — speech that, under Gertz v. Robert Welch, may not be punished — and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this.
That the burden of (dis)proof of what should be an element of the crime is upon defendant in a criminal case seems strange. That a court would uphold it as constitutional seems even stranger, except that falsity is not an element of the crime under the statute.
And it gets worse. The statute prohibits defaming the dead:It looks like a law out of the dark ages, or some alternate history fiction. Apparently the legislature hated the First Amendment, and found a very clever way to attack it by sleight of hand. Just omit an element (falsity) and shift the burden of proof by graciously permitting the crime to be justified by affirmatively disproving the missing element.
Without some constitutional issue, I'd think a state could do pretty much whatever it wanted through its legislature, and could undue if the people wanted to.
No?
I wonder how many elementary-school-age children can give an adequate definition of libel today. They don't make schools like they used to....I didn't learn what libel was until I was in high school.
learn something new every day.
Is it just me, or are we seeing more of this kind of thing lately?
As we learned in Lori Drew, everything is a criminal offense if someone wants to prosecute you!
The Colorado statute does not explicitly require falsity as an element of criminal defamation.
It places the burden of proof of truth upon defendant. Meeting that burden justifies the statute's defined act of defamation, but the defined act does not require false statements.
The prosecutor does not have to allege or prove falsity. The defendant must prove truth.
In another criminal context it would be as if the state could try someone for murder without having to produce evidence that anybody was dead. The defendant would have to prove he did not kill someone.
The example of Singapore suggests that in practice putting strict limits on libel laws even when the statement may be false is essential to liberal democracy.
I mean the basic problem is that the kinds of acts that supposedly provoke the criminal libel prosecution occur not too infrequently and generally go unprosecuted. Now while it's likely not a constitutional problem to protect only a few from this sort of libel it is an unjust application of the law. Who you are and how much pull/sympathy you can generate shouldn't determine what kind of protection from libel you get.
I mean do you think that the man prosecuted for calling the professor a sexual deviant would have been prosecuted for criminal libel if he'd called some white trash guy living in a trailer park the same thing? Even though by all objective accounts I would not be surprised if the claim was more likely to be true of the professor (I know I'm a sexual deviant in the only sense it is a factual claim rather than an insult...my sexual practices deviate from the norm in our society).
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As far as my worry about the as applied constitutionality it's the following. Given our natural human intuitions about justice and proper responses we can't help but be more likely to prosecute/convict someone who has engaged in true abusive verbal attacks on someone who then adds in a knowingly false one.
I mean c'mon if I set up a website about you that is filled with abusive and mean but true claims and added to that website a knowingly false claim about you can you really say I'm no more likely to be prosecuted than if I'd created a generally flattering website and then after some dispute added a knowingly false claim? Yet if you grant this it seems clear that as applied this sort of law is going to punish people for constitutionally protected speech.
i don't think that's necessarily true. i think we have blogs and the internet and this stuff is getting more exposure.
these defamation laws are almost as bad as canada's hate speech laws.
in neither case is truth a defense.
let's not also forget that in stories like this, the prosecutor gets all the flak. in cases where people are arrested for this stuff, it's the cops.
but it's the frigging STUPID LEGISLATURE that is responsible for stupid law.
they are the ones primarily to blame.
it is the prosecutor's job to enforce the law. even if it is stupid. it is not the legislatures job to make STUPID law. but they keep doing it.
i wouldn't be surprised if you took a list of all laws passed by citizen initiative, etc and compared them with laws passed by legislatures, if the latter group had more stupid and blatantly unconstitutional laws.
This would appear to mean that a true report that an ostensibly heterosexual famous person was actually a closeted homosexual/bisexual could be a crime in Colorado!
Larry Craig was just from the wrong state.
Nick
Norberg left a negative review on Yelp after he got into a billing dispute with chiropractor Steven Biegel. So, Biegel sued Norberg for defamation.*
Given that these are all e-publication cases, I'm surprised that there has been no discussion of 47 USC §230 and decisions like Barrett v. Rosenthal, 40 Cal. 4th 33; 146 P.3d 510; 51 Cal. Rptr. 3d 55 (Cal. 2006).
* Personally, I'd never heard of "Yelp" before.
After Gertz is whether the subject matter was a public concern still part of the inquiry, or is it all about whether the target of the speech was a public or private figure?