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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 case Garrison v. Louisiana, ruled 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.