It’s Time to Stop Arresting People for Trolling the Government

After Robert Frese posted a nasty Facebook comment about a police officer in 2018, police obtained a warrant to arrest him. This was the second time in six years that Frese was charged with “criminal defamation.”

Frese does not live in Russia, China, Iran, or another country notorious for oppressive speech laws. He lives in New Hampshire, which criminalizes the act of purposely making a false statement that exposes someone “to public hatred, contempt, or ridicule.” While Americans typically 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 lead to fines or jail time.

Criminal defamation laws are a relic of England, the colonial era, and early America. The federal Sedition Act of 1798 levied fines and prison time on those who transmitted “any false, scandalous, and malicious writing or writings” against the government, and 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 defamation 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’ve seen disturbing examples of charges filed against citizens who criticize local government officials on social media. Worse, 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 that accused a local life coach of distributing drugs and running a scam business. The local police arrested Frese and charged him with criminal defamation and harassment. He was fined $1,488, with most of it suspended.

In the 2018 case, Frese pseudonymously posted on the local newspaper’s Facebook page that a retiring police officer was “the dirtiest most corrupt cop that I have ever had the displeasure of knowing … and the coward Chief Shupe did nothing about it.” The newspaper deleted that comment, but Frese posted a similar comment accusing the police chief of a cover-up. After the police chief denied a cover-up, a detective determined that no evidence supported Frese’s allegations about the retiring officer and filed a criminal complaint that resulted in an arrest warrant.

Although the police department dropped its complaint after state officials determined there was insufficient evidence that he had made the statements with actual malice, Frese asked a federal judge to find New Hampshire’s criminal defamation law unconstitutional, arguing that the threat of a third prosecution under the statute chills his speech.

Judge Joseph Laplante declined Frese’s request—not because he was particularly enthusiastic about the prospect of police arresting people for defamation, but because the US Supreme Court, in the 1964 caseGarrison v. Louisianaruled that states can “impose criminal sanctions for criticism of the official conduct of public officials” provided that the government establishes the speaker made the false statements with “actual malice,” which means they knew the statement was false, or at least entertained serious doubts about its truth. This is a high bar, but even if the case ultimately fails, the mere prospect of facing arrest or being forced through a criminal prosecution in a hostile jurisdiction can freeze speech.

Frese’s lawyers recognized this chilling effect and appealed to the US Court of Appeals for the First Circuit, which reluctantlywrote that it did “not have the power to revisit Supreme Court decisions.” One of the three judges on the panel, O. Rogeriee Thompson, wrote a separate concurrence in which she emphasized the “troubling” historical roots of criminal defamation, and the potential for abuse of these laws by public officials today. “By my lights, criminal defamation laws—even the ones that require knowledge of the falsity of the speech—simply cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech,” Thompson wrote.

Late last month, the American Civil Liberties Union (ACLU) filed apetition with the Supreme Court, asking it to use Frese’s case to revisit its 1964 ruling. The ACLU argued that criminal defamation laws are particularly troubling in the age of online speech, pointing to many social-media-related prosecutions nationwide. “Social media platforms, in particular, offer law enforcement easily searchable databases of potentially offending statements,” the group wrote.

Indeed, since the earliest days of the modern internet, state and local officials have wielded criminal defamation laws against controversial online speech. A Utah high school student, for instance,spent a week in juvenile detention in 2000 after posting negative online comments about his classmates and high school staff, including accusing his principal of being “the town drunk.” The charges were eventually dropped after the Utah Supreme Courtdeclared that Utah’s law violated the First Amendment.

In a 2020article reviewing criminal defamation prosecutions, Jane E. Kirtley and Casey Carmody documented many internet-related cases. “Typically, public officials who do instigate criminal libel prosecutions are more likely to target outspoken individuals, many of whom operate blogs or act as citizen journalists, rather than the institutional press,” they wrote. “Those public officials are able to utilize criminal complaints as a means to empower law enforcement officials to search homes and seize property, which, in turn, is a way to intimidate and silence critics.”

Among the cases that Kirtley and Carmody highlighted was a pseudonymous Louisiana blog that alleged local business officials and politicians were corrupt. A subject of the reporting lodged a criminal defamation complaint, which law enforcement used to gather IP address records and obtain a warrant to search the blogger’s home. An appellate court later found that the warrant was invalid.

Although these cases often do not receive much public attention, they should concern all Americans. As Frese’s lawyers wrote in his lawsuit challenging New Hampshire laws, as politicians increasingly bemoan “fake news,” criminal defamation laws “could become regular tools for policing online discourse.”

There is no guarantee that the Supreme Court justices will hear Frese’s case and decide the constitutionality of the New Hampshire law. The court receives thousands of requests to hear cases and usually grants fewer than 70. But it should take Frese’s case to finally end our sad record of criminal defamation prosecutions.