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By Gregory C. Lisby
Professor, Georgia State University

Libel may be a private wrong or a public wrong (or perhaps both), depending on the identity of the party bringing suit and the type of remedy sought. As a private wrong, it involves an individual or small group claiming to have been defamed and suing for civil libel — also known as the tort of libel – and possibly collecting monetary damages for harm suffered. As a public wrong, on the other hand, libel involves the state criminally prosecuting a person who it believes has defamed another (including another individual, a public official, a government entity, a large group, even a deceased person). If the government proves its case beyond a reasonable doubt, the individual may possibly be imprisoned, though fines are the more likely remedy.

This was the result of the prosecution of Joseph Beauharnais by the state of Illinois in 1950 for group libel (specifically, the defamation of an ethnic group — African-American residents of that state). The U.S. Supreme Court upheld his conviction in Beauharnais v. Illinois (1952), based both upon the private right to reputation and the public right to harmony and serenity — in other words, the public’s right to be free from violence and threats that would likely lead to violence. Though not followed by lower courts today, this ruling has never officially been overturned or either of its legal rationales rejected by the Supreme Court.

In 1962, as a result of its 10-year review of criminal law in the United States, the American Law Institute completed its Model Penal Code, a statutory compilation of crimes on which most state criminal statutes are now based. The drafters did not include a provision for the crime of libel in their set of laws, because — in addition to the difficulty of determining the extent to which representative government should be able to stifle expression in a society that relies on communication to guarantee effective self-government — they concluded that criminal law should be reserved for “harmful behavior which exceptionally disturbs the community’s sense of security.”

However, two years later in Garrison v. Louisiana (1964), the U.S. Supreme Court did not rule that the crime of libel was contrary to the U.S. Constitution. Instead, it concluded that District Attorney James Garrison could not be convicted of criminal libel for statements he made about certain judges unless the state of Louisiana could prove that he made the remarks with “actual malice.” Even though it did not take the position that criminal libel was wholly unconstitutional, the Supreme Court did offer First Amendment protection to some false statements of fact, which are the basis of all defamation, because Garrison did not make his statements “with knowledge of their falsity or with reckless disregard of whether they were false or not.”

This was the exact same rule the Supreme Court had just established eight months earlier for civil libel in New York Times Co. v. Sullivan (1964). This rule has since been extended to include libel suits by public figures involved in issues of public interest or controversy, in the Supreme Court’s ruling in Curtis Publishing v. Butts/Associated Press v. Walker (1967), and to those by private individuals in Gertz v. Robert Welch, Inc. (1974), who must prove negligence to collect monetary damages. The Supreme Court has not specifically addressed the applicability of civil libel’s public figure/private individual rules in the area of criminal libel, but lower courts have generally presumed their validity.

Thus, in focusing the question on who is or is not a “public” person engaged in some sort of “official conduct” or involved in some sort of public controversy, the Supreme Court did not adopt either of two other alternatives, including focusing solely on whether there is legitimate public interest in a controversial issue affecting self-government. Nor did it conclude that whenever possible government simply should avoid exerting its immense prosecutorial power in the realm of speech — except in situations involving grave threats to community security — because of the inherent inequities of influence involved. In tort — or civil — law, opposing parties are equal before the law; in criminal law, despite the axiom that the accused is innocent until proven guilty, the government is always the more dominant (and, arguably, more intimidating) party, where even threats of prosecution result in a direct restriction on free speech, including arbitrary or discriminatory prosecutions, complaints filed solely for their publicity value, and the use of criminal law to suppress unpopular expression. Those who contend that a crime of libel has no place in American jurisprudence do not mean that the government may not prosecute solicitation or conspiracy to commit a crime, incitement to riot or acts of violence, or wartime sedition. However, they do acknowledge the reality that the fear of criminal prosecution always inhibits free speech that would otherwise be protected by the First Amendment.

The Supreme Court moved further away from the antiquated, authoritarian legal foundations of the crime of libel when it ruled in Ashton v. Kentucky (1966) that audiences are legally responsible for their reactions to speech. This shift was based in part on the First Amendment’s freedom of speech and press guarantees, which generally encourage audiences to avoid communication they do not wish to receive. It was also based on arguments made in Zechariah Chafee’s seminal 1941 book, Free Speech in the United States, in which he contends that to establish criminal liability based on the likelihood that expression will result in violence involves the evaluation of the emotional sensitivities of a particular person or group, not a legal examination of the particular statements made. In essence, in Chafee’s words, an individual should not be made into a criminal “simply because his neighbors have no self-control and cannot refrain from violence” — though the Supreme Court did recognize in Brandenburg v. Ohio (1969) that in the face of “imminent lawless action” speech may be restricted or controlled.

As a result, the only real distinction today between the use of civil and criminal libel is between those who seek to redress defamation through the awarding of compensatory damages to the one defamed and those who seek to redress defamation by punishing the defamer with a monetary fine or jail time, though the tort of libel can also achieve the punishment of the defamer through the awarding of punitive damages to the one defamed. Because of this, some have argued that civil libel, with its possibility of monetary damages — both compensatory and punitive — is thus the most satisfactory method of dealing with libel.

The impact of criminal libel, however, is felt not only by those convicted, but even by those who are threatened with prosecution and by everyone else who cannot accurately judge the legal boundaries of free speech. The two modern examples that best illustrate this point are those of Jim Fitts and Ian Lake.

In a signed, front-page newspaper editorial, Fitts accused two of his community’s elected representatives of corruption and theft, figuratively if not literally. But they did not sue him for civil libel and have a jury decide whether his remarks were defamatory under the Sullivan rule. Instead, the public officials had Fitts arrested on a charge of criminal libel. The issue in the 1988 case was not one of reputation but of power. Fitts’s accusers were South Carolina legislators who understood how the state’s criminal-justice system worked and used it to their advantage. Whether they had actually been defamed or not was irrelevant.

The warrants for his arrest were signed on a Friday morning; his bond hearing was held as the last item of business that evening. The magistrate judge chose the harshest of the bond options available and refused to hear a motion that the bond be reduced. The clerk of the court went home for the weekend before Fitts could make arrangements to pay the bond. Fitts spent two nights in jail without ever having been convicted of any crime, indicted, or even arrested based upon some “probable cause.” His emergency release was conditional — he could not even discuss what had happened to him. His subsequent indictment by the grand jury was based upon evidence developed and presented by the prosecutor and his two assistants, one a cousin and the other a nephew of the two legislators who claimed to have been defamed by Fitts. However, the charges were dropped just as it appeared public opinion was shifting in Fitts’s favor, yet after the lawmakers had won their political party’s renomination for office, which was tantamount to re-election because of the disparate strength of the two political parties in Williamsburg County at that time. A federal district court subsequently declared South Carolina’s criminal-libel statute unconstitutional in 1991. (However, as is the case in a few other states, that statute remains on the books.)

The more recent trend appears to be the use of the crime of libel to intimidate the young and politically inexperienced. Sixteen-year-old Ian Lake reacted to the taunts and harassment of his Milford (Utah) High School classmates by creating a Web site and posting a home page laced with obscenities and vulgar accusations about the principal, teachers, other school staff and various students. As a result, Lake spent seven days in juvenile detention — after having been arrested and having his computer confiscated, but also without ever having been convicted of any crime. Some have called this punitive modern attitude toward troubled teenagers a “post-Columbine hysteria,” in which anger, alienation, and offensive speech online are increasingly equated with danger, requiring community action to protect its members from possible violence. Thus, the state of Utah’s response turned a teen who had had trouble fitting in at school into a criminal suspect, before the state Supreme Court ruled in his favor in I.M.L. v. Utah (2002).

Yet a number of states and one territory still have enforceable statutes for the prosecution of the crime of libel. (See state-by-state compilation.)

The problem with the crime of libel is, first, that it is too often used as a device for punishing criticism of those who direct the conduct of government — the so-called “best men” — and, second, that it does not promote or protect speech bearing even a tangential relationship to the requirements of self-government. It instead creates a “chilling effect” that makes speakers less likely to speak or criticize government in the future.

Three factors are generally used to determine when conduct should be criminalized: 1) the enforceability of the law, 2) the effects of the law, and 3) the existence of other means to protect society against the undesirable behavior. Those who advocate the abolition of criminal libel — including this author in 2004 — contend that the second and third factors overwhelmingly support its elimination as a crime: the detrimental effects of its enforcement on freedom of speech in the United States and the existence of the tort of civil libel as an alternative to protect society against any abuse of that freedom.



10th Circuit asked to throw out Colo. criminal-libel law
Attorney for online newsletter editor who was threatened with prosecution under statute tells three-judge panel that law is so broad it can't be applied constitutionally. 01.14.06

Jury finds N.M. man didn't harass police
Juan Mata of Farmington was originally charged with criminal libel. 07.21.06

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Last system update: Thursday, May 31, 2007 | 15:20:34
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