FIRE amicus brief urges Supreme Court to close the door on speech-chilling criminal defamation laws 

Throwing someone in jail for badmouthing a public official is profoundly undemocratic and un-American. But that didn’t stop police from arresting Robert Frese after he insulted them on Facebook.

New Hampshire’s criminal libel law makes it a misdemeanor to say or write anything that you know is false and that will expose someone to “public hatred, contempt or ridicule.” According to the local police department, Frese violated this law when he posted a Facebook comment calling an officer a “coward” who was “covering up for a corrupt cop.” 

Unfortunately, more than a dozen states still maintain speech-chilling criminal libel laws like New Hampshire’s that are too frequently used to punish those who criticize government officials. So on April 27, 2023, FIRE filed an amicus brief with the Supreme Court of the United States asking it to hear Frese’s case and finally rid the country of archaic laws that criminalize libel of public officials.  

Throughout the country, bloated penal codes chock-full of outdated laws already pose a great threat to free expression. The Supreme Court can finally do away with laws that directly criminalize libel of public officials, and uphold the prized American privilege to speak our minds about the government without the risk of criminal penalty.

The First Amendment doesn’t tolerate making a crime out of criticism. Early Americans denounced the Sedition Act of 1798, which made it a crime to publish “any false, scandalous and malicious writing …  with intent to defame the government.” And in the decades since, the Supreme Court has repeatedly affirmed that the right to criticize public officials lies at the very heart of the First Amendment — and our nation. In Bridges v. California, for example, the Supreme Court ruled a state court could not hold a citizen and a newspaper in contempt for criticizing judicial proceedings. The Court declared “it a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”

The Court last considered the constitutionality of criminal libel laws in Garrison v. Louisiana in 1964. Although it struck down Louisiana’s statute as unlawful, the Court declined to prohibit criminal libel laws entirely. Since then, Americans like Robert Frese have continued to face arrest and the stigma of a criminal record for criticizing public officials. Closing the door that Garrison left open is long overdue.

As FIRE’s brief details, Frese’s story exemplifies a larger trend. Law enforcement officials often selectively enforce antiquated, obscure criminal statutes to silence critics.

In Connecticut, for example, law enforcement abused a 1917 advertising law designed to rid discrimination from business accommodations to arrest naysayers. In one instance, officers arrested a man for referring to them as “crackers.” (Connecticut’s Supreme Court recently held the law only reaches commercial speech.) 

Connecticut Supreme Court narrows ‘racial ridicule’ law abused by police as general hate speech law

News

On Wednesday, Connecticut’s Supreme Court held that the state’s “racial ridicule” statute applies only to commercial advertisements.

Read More

In Laredo, Texas, officials dug up a thirty-year-old criminal statute — one they had never enforced before — to arrest popular citizen journalist Priscilla Villarreal simply because she asked law enforcement for newsworthy information. As a federal judge noted, Laredo officials likely would not have enforced the dusty law “against a citizen whose views they agreed with, and whose questions they welcomed.” (FIRE currently represents Villarreal before the U.S Court of Appeals for the Fifth Circuit, where a decision en banc is pending.) 

And in Louisiana, police relied on the very same criminal libel statute the Supreme Court deemed unconstitutional as to public officials in Garrison to arrest a man for insulting their colleague’s handling of a murder investigation.

Throughout the country, bloated penal codes chock-full of outdated laws already pose a great threat to free expression. The Supreme Court can finally do away with laws that directly criminalize libel of public officials, and uphold the prized American privilege to speak our minds about the government without the risk of criminal penalty.