After Robert Frese posted a nasty comment on Facebook about a police officer in 2018, the police obtained a warrant to arrest him. This was the second time in six years that Frese was charged with “criminal libel.”
Frese does not live in Russia, China, Iran, or another country known for oppressive speech laws. He lives in New Hampshire, which criminalizes the act of knowingly making a false statement that exposes someone “to public hatred, scorn, or ridicule.” While Americans often associate defamation with civil lawsuits, in which the alleged victim sues the speaker for money, many are unaware that in some states, defamation is a crime that can result in fines or jail time.
Criminal defamation laws are a relic of England, the colonial era, and early America. The Federal Sedition Act of 1798 imposed fines and prison terms on those who transmitted “any false, scandalous, or malicious writing or writings” against the government, and the John Adams administration used it to prosecute dozens of critics. The federal law expired in 1801 after a critic, Thomas Jefferson, became president, but many states continued to prosecute their own criminal libel laws.
Today, New Hampshire and 13 other states still have criminal defamation laws on the books. While prosecutions under these laws were rare as recently as a few years ago, we have seen disturbing examples of charges brought against citizens who criticize local government officials on social media. Worse yet, those officials often have unilateral authority to bring criminal defamation charges.
Frese had his first brush with New Hampshire’s criminal defamation law in 2012, after posting comments on Craigslist accusing a local life coach of distributing drugs and running a scam business. Local police arrested Frese and charged him with defamation and criminal harassment. He was fined $1,488, with most of it suspended.
In the 2018 case, Frese posted under a pseudonym on the local newspaper’s Facebook page that a retiring police officer was “the dirtiest, most corrupt cop I’ve ever had the displeasure to meet…and cowardly Chief Shupe did nothing.” about”. The newspaper removed that comment, but Frese posted a similar comment accusing the police chief of a cover-up. After the police chief denied the cover-up, a detective determined there was no evidence to support Frese’s allegations about the officer’s removal and filed a criminal complaint that resulted in a warrant for his arrest.
Although the police department withdrew his complaint after state officials determined there was insufficient evidence that he made the statements with genuine malice, Frese asked a federal judge to declare New Hampshire’s criminal defamation law unconstitutional, arguing that the threat of a third prosecution under the statute cools his speech.
Judge Joseph Laplante denied Frese’s request, not because he was particularly excited about the possibility of police arresting people for libel, but because the United States Supreme Court, in the 1964 case Garrison vs. Louisiana, ruled that states can “impose criminal penalties for criticizing the official conduct of public officials” as long as the government establishes that the speaker made the false statements with “actual malice,” meaning they knew the statement was false, or at least they entertained serious doubts about its veracity. This is a high bar, but even if the case ultimately fails, the mere prospect of facing arrest or being forced into criminal prosecution in a hostile jurisdiction can freeze speech.