The Volokh Conspiracy - North Carolina Senate Bill Would Extend Criminal Libel to Online Communications:

North Carolina law now bans "Communicating libelous matter to newspapers":

If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a Class 2 misdemeanor.

A new proposal, Senate Bill 46, would extend this to electronic communications as well, though nonanonymous electronic communications would be punishable only if an apology is demanded but not promptly published:

§ 14‑47.1. Communicating libelous or slanderous material through an electronic medium.
(a) Definition. – The following definitions apply to this section:
(1) Communicate. – The term includes publishing, speaking, uttering, or conveying by words, acts, or in any other manner of a libel or slander.
(2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group.
(b) Offense. – It is unlawful for any person to communicate by transmission through an electronic medium any false, defamatory statement that is libelous or slanderous.
(c) Penalty. – A person convicted of an offense under this section is guilty of a Class 2 misdemeanor.
(d) Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received or viewed in the State.

§ 99‑10. Libel and slander transmitted through an electronic medium.
(a) Definition. – The following definitions apply to this section:
(1) Communicate or communication. – The terms include the publication, speaking, utterance, or conveyance by words, acts, or any other manner of a libel or slander.
(2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group.
(b) Request for Apology and Correction Required Before Bringing Civil or Criminal Action. – Before any action, either civil or criminal, is brought for transmitting a communication of any libelous or slanderous material through any electronic medium, the plaintiff or prosecutor shall first give the person alleged to be responsible for communicating the libelous or slanderous material at least five days to correct the libelous or slanderous material. The plaintiff or prosecutor shall request that the person alleged to be responsible for communicating the libelous or slanderous material post an apology and correct the material as provided by subsection (c) of this section. A request may be made by mailing or delivering a written request to the person alleged to be responsible for communicating the libelous or slanderous material or by placing the request at one of the locations in the electronic medium known to the plaintiff or prosecutor where the libelous or slanderous material was placed.
(c) Apology and Correction of Libelous or Slanderous Material. – To correct the libelous or slanderous material, the person alleged to be responsible for communicating the libelous or slanderous material shall, within 10 days after receiving the request as provided by subsection (b) of this section, place an apology and correction in the same location in the electronic medium as the libelous or slanderous material was placed. The person alleged to be responsible for communicating the libelous or slanderous material shall maintain the apology and correction at that location for a period similar to the time that the libelous or slanderous material was at that location, to the extent that the person can control the location and period of that placement.
(d) Effect of Communication in Good Faith and Retraction. – If at trial it appears that the material was communicated in good faith, that the falsity of the material was due to an honest mistake of the facts, that the material was communicated without prior knowledge or approval of the person who administers the facilities for the electronic medium or, if with prior knowledge or approval, that there were reasonable grounds for believing that the communications were true, and that within 10 days after the request for an apology and correction a full and fair correction, apology, and retraction were added to the proper location in the electronic medium in a position and type as prominent as the alleged libelous or slanderous material, then:
(1) If the action is a civil action, the plaintiff shall recover only actual damages.
(2) If the action is a criminal proceeding on which a verdict of guilty is rendered, then notwithstanding G.S. 15A‑1340.23, the defendant shall be fined a penny and costs, and no more.
(e) Negligence in Permitting Defamatory Communications by Others Essential to Liability of Person Administering Electronic Medium. – The person who administers or provides facilities for the electronic medium involved in the alleged libel or slander shall not be held liable for the alleged libel or slander unless the person is guilty of negligence either in allowing the material to be placed in the electronic medium or in allowing the material to remain in the electronic medium after the person became aware that the material was false and defamatory.
(f) This section shall not apply to anonymous communications.

I don't support criminal libel laws, but I should note that the Supreme Court has never held that they are unconstitutional, and the Court's precedents suggest that criminal punishment of libel — like criminal punishment of obscenity, incitement, and other unprotected categories of speech — is constitutional, so long as the government proves, beyond a reasonable doubt, that (1) the statement was a false factual assertion, and (2) that the defendant knew it was false, or was reckless about whether it was false, with recklessness being defined as subjectively knowing that there was a grave chance it was false. (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. Criminal libel prosecutions these days are very rare, but not unheard of.

Is the proposed law consistent with the First Amendment rule I set out above, and in particular with the knowledge/recklessness of falsehood prong? On the one hand, "libel" could well be read to incorporate the constitutional definition of the term. On the other, § 99‑10(d) expressly contemplates punishment even for good-faith mistakes — facially nominal punishment, but one that presumably would go on one's criminal record as a misdemeanor. I suspect that courts would try to save as much of the statute as possible by throwing out the provisions that authorize punishment for good faith mistakes but reading the rest as limited to the knowingly/recklessly false statements.

The negligence-based intermediary liability in § 99‑10(e) would not be permissible, however, because it would likely be preempted by 47 U.S.C. § 230. (Also, in criminal cases involving speech on matters of public concern, such liability would be unconstitutional when based only on negligence.)

This News & Observer blog asserts that the sponsor said "that he intended the bill to focus on civil cases and not criminal law. He said the inclusion of criminal penalties was 'an oversight.'" That's an odd oversight, given the text quoted above.

Thanks to Eric David for the pointer.

	[Eugene Volokh, February 24, 2009 at 5:38pm] Trackbacks North Carolina Senate Bill Would Extend Criminal Libel to Online Communications: North Carolina law now bans "Communicating libelous matter to newspapers": If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a Class 2 misdemeanor. A new proposal, Senate Bill 46, would extend this to electronic communications as well, though nonanonymous electronic communications would be punishable only if an apology is demanded but not promptly published: § 14‑47.1. Communicating libelous or slanderous material through an electronic medium. (a) Definition. – The following definitions apply to this section: (1) Communicate. – The term includes publishing, speaking, uttering, or conveying by words, acts, or in any other manner of a libel or slander. (2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group. (b) Offense. – It is unlawful for any person to communicate by transmission through an electronic medium any false, defamatory statement that is libelous or slanderous. (c) Penalty. – A person convicted of an offense under this section is guilty of a Class 2 misdemeanor. (d) Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received or viewed in the State. § 99‑10. Libel and slander transmitted through an electronic medium. (a) Definition. – The following definitions apply to this section: (1) Communicate or communication. – The terms include the publication, speaking, utterance, or conveyance by words, acts, or any other manner of a libel or slander. (2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group. (b) Request for Apology and Correction Required Before Bringing Civil or Criminal Action. – Before any action, either civil or criminal, is brought for transmitting a communication of any libelous or slanderous material through any electronic medium, the plaintiff or prosecutor shall first give the person alleged to be responsible for communicating the libelous or slanderous material at least five days to correct the libelous or slanderous material. The plaintiff or prosecutor shall request that the person alleged to be responsible for communicating the libelous or slanderous material post an apology and correct the material as provided by subsection (c) of this section. A request may be made by mailing or delivering a written request to the person alleged to be responsible for communicating the libelous or slanderous material or by placing the request at one of the locations in the electronic medium known to the plaintiff or prosecutor where the libelous or slanderous material was placed. (c) Apology and Correction of Libelous or Slanderous Material. – To correct the libelous or slanderous material, the person alleged to be responsible for communicating the libelous or slanderous material shall, within 10 days after receiving the request as provided by subsection (b) of this section, place an apology and correction in the same location in the electronic medium as the libelous or slanderous material was placed. The person alleged to be responsible for communicating the libelous or slanderous material shall maintain the apology and correction at that location for a period similar to the time that the libelous or slanderous material was at that location, to the extent that the person can control the location and period of that placement. (d) Effect of Communication in Good Faith and Retraction. – If at trial it appears that the material was communicated in good faith, that the falsity of the material was due to an honest mistake of the facts, that the material was communicated without prior knowledge or approval of the person who administers the facilities for the electronic medium or, if with prior knowledge or approval, that there were reasonable grounds for believing that the communications were true, and that within 10 days after the request for an apology and correction a full and fair correction, apology, and retraction were added to the proper location in the electronic medium in a position and type as prominent as the alleged libelous or slanderous material, then: (1) If the action is a civil action, the plaintiff shall recover only actual damages. (2) If the action is a criminal proceeding on which a verdict of guilty is rendered, then notwithstanding G.S. 15A‑1340.23, the defendant shall be fined a penny and costs, and no more. (e) Negligence in Permitting Defamatory Communications by Others Essential to Liability of Person Administering Electronic Medium. – The person who administers or provides facilities for the electronic medium involved in the alleged libel or slander shall not be held liable for the alleged libel or slander unless the person is guilty of negligence either in allowing the material to be placed in the electronic medium or in allowing the material to remain in the electronic medium after the person became aware that the material was false and defamatory. (f) This section shall not apply to anonymous communications. I don't support criminal libel laws, but I should note that the Supreme Court has never held that they are unconstitutional, and the Court's precedents suggest that criminal punishment of libel — like criminal punishment of obscenity, incitement, and other unprotected categories of speech — is constitutional, so long as the government proves, beyond a reasonable doubt, that (1) the statement was a false factual assertion, and (2) that the defendant knew it was false, or was reckless about whether it was false, with recklessness being defined as subjectively knowing that there was a grave chance it was false. (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. Criminal libel prosecutions these days are very rare, but not unheard of. Is the proposed law consistent with the First Amendment rule I set out above, and in particular with the knowledge/recklessness of falsehood prong? On the one hand, "libel" could well be read to incorporate the constitutional definition of the term. On the other, § 99‑10(d) expressly contemplates punishment even for good-faith mistakes — facially nominal punishment, but one that presumably would go on one's criminal record as a misdemeanor. I suspect that courts would try to save as much of the statute as possible by throwing out the provisions that authorize punishment for good faith mistakes but reading the rest as limited to the knowingly/recklessly false statements. The negligence-based intermediary liability in § 99‑10(e) would not be permissible, however, because it would likely be preempted by 47 U.S.C. § 230. (Also, in criminal cases involving speech on matters of public concern, such liability would be unconstitutional when based only on negligence.) This News & Observer blog asserts that the sponsor said "that he intended the bill to focus on civil cases and not criminal law. He said the inclusion of criminal penalties was 'an oversight.'" That's an odd oversight, given the text quoted above. Thanks to Eric David for the pointer.