The constitutionality of New Hampshire’s rarely used criminal defamation statute is now before the U.S. Court of Appeals for the First Circuit as it considers whether the arrest of an Exeter man after he made statements critical of the police was a violation of his free speech rights.
New Hampshire is one of about 25 states with a criminal defamation law, which makes it illegal to knowingly say or write something you know to be false that exposes another person to public ridicule.
During a hearing Thursday in front of a three-judge panel, the ACLU, which brought the case on behalf of Bob Frese, argued that the law is overly vague, and a chill on free speech.
“Nobody expects the government to prosecute most instances of gossip, venting and other sorts of loose talk,” Brian Hauss, attorney for the ACLU, told the court. “But the act fails to draw any discernible line between the sorts of loose talk that are criminal, and those that are not.”
The New Hampshire Attorney General's office, which is defending the statute, countered that just because the statute “requires interpretation” by police and prosecutors does not make it vague.
A statute is unconstitutional, attorney Sam Garland said, only when it prohibits an action “in terms so uncertain that persons of average intelligence would have to guess at its meaning.”
In May 2018, Frese, who has a long and colorful history of police involvement for mostly minor infractions, posted comments on a newspaper website claiming that a retiring Exeter police officer was corrupt.
That statement led to Frese’s arrest for violating the criminal defamation law, though the charges were later dropped after the Attorney General released a memo criticizing Frese’s prosecution.
Frese maintains that he believes the officer was corrupt, despite a lack of evidence to back up that claim.
After the criminal charges were dropped, the ACLU of New Hampshire brought a civil suit against the town on Frese’s behalf claiming his rights were violated. The town agreed to settle the suit for $17,500.
The ACLU then filed a challenge to the constitutionality of the state’s criminal defamation statute in federal court, arguing it was overly vague. A lower court judge dismissed the suit, prompting an appeal by the ACLU.
According to court records, only about three people each year on average are charged with the crime in New Hampshire. Opponents of criminal defamation statutes argue the law is often used in response to comments made against high profile officials and police, and therefore are a chill on free speech. Civil remedies, opponents say, are a more suitable legal response to defamation, rather than potential criminal penalties.
In 1964, the U.S. Supreme Court upheld the constitutionality of criminal defamation statutes, an opinion the ACLU argues was wrongly decided.
Frese was previously arrested and found guilty of violating the criminal defamation statute after he posted on Craigslist numerous false comments about a life coach.
