The American Civil Liberties Union of New Hampshire is appealing a federal court judge’s decision to dismiss its lawsuit seeking to strike down the state’s criminal defamation law as unconstitutional.
The ACLU filed the appeal last week in the U.S. First Court of Appeals in Boston, Massachusetts on behalf of Robert Frese, an Exeter man who was arrested on the charge after criticizing the town’s police chief.
The ACLU is requesting a federal appellate court to remand its lawsuit against the New Hampshire attorney general’s office back to New Hampshire District Court. The lawsuit lists current state Attorney General John Formella as the defendant.
The ACLU has argued New Hampshire’s criminal defamation law is unconstitutional under the First and Fourteenth Amendments.
“Criminal defamation is a relic from the days of the Star Chamber and the Sedition Act,” said Gilles Bissonnette, legal director of ACLU-NH. “New Hampshire’s law, and those like it, have no place in a 21st century American democracy. We are hopeful that the First Circuit will reverse so we can continue this case challenging this statute – a statute that should be tossed into the dustbin of history, where it belongs.”
The Court of Appeals is not obligated to take the case.
Why was the case dismissed?
New Hampshire District Court Judge Joseph Laplante dismissed the case against the state attorney general in January because he said overturning the law would have gone against U.S. Supreme Court precedent, which upheld criminal libel penalties under the Garrison v. Louisiana case.
Laplante also sided with the state, ruling Frese’s claim the criminal defamation law is unconstitutionally vague was invalid. The judge noted in his Jan. 12 ruling that Frese did not sufficiently argue how the law fails to set “a discernible standard that would prevent selective or discriminatory enforcement.”
In its brief, the ACLU claims Laplante erred because, by dismissing the case three days before the deadline to complete discovery in January, it denied them the ability to, “build and present a record concerning the criminal defamation statute’s actual enforcement and the enforcement of similar statutes.”
Why was the lawsuit filed?
The ACLU filed the suit after Frese was arrested and charged with criminal defamation of character in Exeter in 2018.
Frese was arrested May 23, 2018, after posting comments critical of then-Police Chief William Shupe in the comment section of a Seacoastonline.com story about an Exeter officer’s retirement. Frese wrote “Shupe covered up for this dirty cop” without offering proof.
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Exeter police dropped the charge soon after Frese’s arrest when the state attorney general’s office determined the state would not win at trial. ACLU-NH sued the town of Exeter and the town settled the wrongful arrest case for $17,500 with Frese.
The ACLU filed the federal case hoping to overturn New Hampshire’s criminal defamation law that its attorneys claim are “anachronisms that have no place in American constitutional democracy.”
Under New Hampshire’s criminal defamation statute, “A person is guilty of a Class B misdemeanor if he purposely communicates to any person, orally, or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.”
ACLU: Criminal defamation law ‘unconstitutional’
On Frese’s behalf, the ACLU claimed the criminal defamation law was unconstitutionally vague because it does not adequately inform a speaker what types of speech can constitute criminal defamation of another person, and as such encourages “arbitrary enforcement,” by police.
The ACLU blames New Hampshire’s “idiosyncratic” misdemeanor criminal process where police departments are left to prosecute Class B offenses they charge individuals with. The ACLU notes the process does not allow for licensed attorneys to participate on a defendant’s behalf, nor is a defendant entitled to court-appointed counsel or to receive a jury trial.
“Given these circumstances, there is an acute risk that police officers will selectively (and, in many cases, improperly) invoke the criminal defamation statute to prosecute speech criticizing the government and its officers,” the brief reads. “New Hampshire’s criminal defamation statute is particularly susceptive to arbitrary, selective or discriminatory enforcement.”
They also claim the law poses a direct violation to the First Amendment because criminal penalties cannot be applied to speech criticizing government officials, as courts have recognized, “civil remedies are sufficient to provide redress for injuries to reputation,” per the brief.
NH attorney general defends law
Kate Giaquinto, director of communications for the state attorney general’s office, said the attorney general would not provide comment on the appeal other than it is preparing a response to the ACLU’s brief.
The state previously argued if speech alleging false allegations against public officials is unknown to be false to the speaker, then it cannot constitute a violation of the criminal defamation law. In Frese’s case, the state claimed Frese did not know his allegations against the retiring Exeter officer were false, therefore he did not have standing to bring the lawsuit.
According to the ACLU brief, New Hampshire’s judicial branch saw 25 criminal defamation cases between 2009 and 2017. Also, the start of discovery in Frese’s federal case revealed six additional prosecutions under the law between the start of 2018 and mid-2020, including his own by Exeter.
Frese was previously arrested on the charge of criminal defamation by Hudson police in 2012 for repeatedly calling a life coach’s Craigslist ad “a scam.” He pleaded guilty to the crime.