Every adult in the U.S. is familiar with the First Amendment of the Bill of Rights. This amendment guarantees all U.S. citizens the following: freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for redress of grievances. Simply put, the federal government cannot persecute a person for exercising these rights.
For the most part, that remains true. However, several states have laws that can allow for the criminal prosecution of people for defamation or libel. While these accusations are often addressed in civil court, in some states, speaking out against someone can land you in jail.
Criminal statutes that legally define the punishment of defamation date back to 13th century England. In fact, one English monarch was notorious for prosecuting and then, usually beheading, those who spoke out against the crown. King Henry VIII of England utilized the Star Chamber, an English court of law comprised of privy councilors and common-law judges, to persecute those who spoke critically of him. Criminal libel law as applied in America can be traced directly back to the Star Chamber.
Primarily, the Star Chamber has dealt with seditious law against the state, but it has also been used increasingly in the development of libel and defamation law regarding statements one person makes against another. The Star Chamber was eventually abolished in 1641. From there, common law courts took jurisdiction over criminal libel.
Perhaps one of the more infamous examples of federal law that once applied to acts of speaking out against the U.S. Government was the Sedition Act passed in 1798 and signed by John Adams, in an attempt to stifle the speech of his political enemies. Now regarded as largely unconstitutional, the Sedition Act was allowed to expire in 1801 when Thomas Jefferson was president. Going further, Jefferson pardoned all those who had been convicted under the act and Congress refunded all fines that had been imposed.
However, truth has not always played a role in the defense of defamatory statements. In many cases, only that the statement was made was taken into consideration. It wasn’t until 1803, when Alexander Hamilton defended a printer named Harry Croswell for libeling Thomas Jefferson that the jury decided that the truth of the statement was, indeed, a defense against criminal libel. It wasn’t until 1820, however, that state legislatures began to adopt truth as a defense in libel cases.
While many states have repealed their criminal defamation laws, twenty-four states still have laws that make it a crime to make defamatory statements. The penalties for doing so, if convicted, can range from having to pay a fine to actually being imprisoned.
Last December, the American Civil Liberties Union filed a lawsuit against the state of New Hampshire, challenging their criminal defamation laws. The challenge came after Robert Frese made comments about a retiring police officer online. Frese accused the officer of misconduct, and a few weeks later, the Exeter police filed a criminal complaint against Frese.
Although the police department ultimately dropped the charges, the ACLU is still challenging the state’s law, claiming that it violates the First Amendment and allows law enforcement too much discretion in deciding whom to prosecute, which they claim, can lead to those in power using the law to silence detractors.