The conviction of a publisher and editor under a criminal defamation statute in Kansas last year has ignited state and national debate about the value of rarely used – and often clearly archaic – criminal defamation statutes that remain on the books in up to half of the states in the country.
The most significant difference between criminal defamation and civil defamation is exactly what the name implies: Civil charges are brought in civil court by the person with the complaint, and criminal defamation must be brought by prosecutors in criminal court. Critics of criminal defamation statutes argue that no one should face the possibility of jail because of something that was said or written. Rather, they say, civil penalties – such as monetary fines – are a far more reasonable approach.
“Most people would think that putting people in prison for libel is inconsistent with democratic, free speech,” said Sandra Baron, executive director of the Media Law Resource Center. “It’s a sad irony that criminal libel statutes still exist and are being used. It should dismay everyone that an elected official can use the criminal justice system to punish her critics.”
David Carson and Edward H. Powers Jr. were publisher and editor of The New Observer, a free tabloid published on an occasional basis and distributed throughout the Kansas City, Kan., area. Carson and Powers, both disbarred attorneys, used the publication to disseminate their political views and frequently targeted Mayor Carol Marinovich, who was running for re-election to a third term in 2001.
During the contentious mayoral campaign, the newspaper incorrectly reported that Marinovich and her husband, Wyandotte County District Judge Ernest Johnson, did not live in the largely blue-collar county in which they held office as required by law. Rather, the newspaper reported, the couple lived in the nearby – and more affluent – Johnson County.
Shortly after Marinovich won the plurality in the mayoral primary, Wyandotte County District Attorney, Nick Tomasic – also a target of frequent attacks by The New Observer – filed 10 misdemeanor criminal defamation charges against Carson, Powers and Observer Publications. Carson and Powers faced sentences of one year in jail and fines of $2,500.
“An honest mistake will not be prosecuted,” said Tomasic. “They kept printing it. That was where the crime is. They knew it was false and kept printing it.”
On July 17, 2002, a six-member jury deliberated for four hours before returning guilty verdicts on seven counts. It was the first successful criminal-defamation prosecution of a newspaper in the United States since 1974.
But the dangers of criminal defamation suits aren’t limited to Kansas. According to a review completed in February by the Media Law Resource Center, Kansas and three other states – New Hampshire, North Dakota and Utah – appear to have language in their criminal defamation statutes that would pass Constitutional muster, at least under the standards announced by the U.S. Supreme Court when it considered the issue in 1964. Those states, all of which enacted or amended their statutes after 1964, appear to have acted with the Supreme Court requirements in mind, said Dave Heller, staff attorney for the Media Law Resource Center.
Thirteen other states and one U.S. territory – Colorado, Florida, Idaho, Louisiana, Michigan, Minnesota, Montana, Mew Mexico, North Carolina, Oklahoma, Virginia, Washington, Wisconsin and the Virgin Islands – have retained an array of often-confusing criminal defamation statutes that address libel disputes between private individuals, rather than public officials, or remain “on the books” although they appear to be unconstitutional.
Indeed, some experts say that as many as 25 states retain criminal defamation statutes.
“So you have these jurisdictions that have left these on the books, and as long as they remain on the books they are always ripe for misuse,” Heller said. “They sit there for misuse – for unpopular or offensive speech or speech that hits a political target who has the leverage to instigate a prosecution.”
But in the 40 years since the Supreme Court decision, only about 70-75 criminal defamation actions have been initiated in the United States, and only 14 of those cases involved media, including newspapers and radio talk-show hosts.
That, proponents say, suggests that criminal defamation statutes are not utilized widely enough to provide the “chilling effect” that journalists fear. Simply put, they say, statutes that aren’t used, aren’t abused.
But according to the Media Law Resource Center report, the very fact that prosecutions are so selective makes them “appear to be initiated as a political weapon.” More than half of the criminal-libel prosecutions in the last 40 years can be described as political, according to the report. In the past five years, for example, the most significant factor in 14 of the 22 known criminal-libel prosecutions “appears to be the public position or status of the alleged victim (or the unpopularity of the speech) more than the harm of the defendant’s acts.”
Supporters of these laws say that well-crafted criminal defamation statutes give legal recourse to people victimized by malicious and false statements without jeopardizing the ability of responsible journalists to report on the events of the day.
And the harm done by malicious and false statements can be worse than the harm done by other types of crimes, says Chris Biggs, a county attorney in Kansas. “If people intentionally, maliciously and with evil mind harm someone, that’s a crime of violence,” he said.
Biggs, who was a candidate for Kansas attorney general last year, represented the Kansas County and District Attorneys Association when he testified before the Kansas Senate Judiciary Committee in January in opposition to proposed legislation to repeal the state’s criminal defamation act. The bill was withdrawn at the request of its author, state Sen. Derek Schmidt, when it appeared to lack the necessary votes to move it forward.
Rather than repealing the statute outright, Biggs said the state legislature should wait to see if the appeals court in The New Observer case rules that the statute can’t apply to political speech.
And while opponents of criminal defamation statutes point to the civil system as the appropriate legal recourse, Biggs and other proponents say civil litigation is costly. Attorneys are expensive – assuming attorneys are found who are willing to take the case – and defendants convicted of civil libel often don’t have the financial wherewithal to pay monetary damages. Furthermore, they say, civil suits can take years before judgments are rendered.
Instead, a criminal defamation conviction “gets the message out that you have to be careful about what you speak,” said Tomasic, who filed the charges in Kansas.
Edward Seaton, editor in chief of The Manhattan (Kan.) Mercury and past president of the American Society of Newspaper Editors, says the convictions in Kansas provide justification for authoritarian governments that use criminal defamation statutes to suppress dissent.
“Criminal defamation laws are the preferred instruments of repressive governments to silence criticism and stifle public debate,” said Seaton. “They are the hallmark of closed societies throughout the world.”
But proponents of criminal defamation legislation point out that there already are prohibitions against some kinds of speech. For example, one person who tells another “I’m going to kill you” may be charged with criminal threat and prosecuted.
“That’s speech that is criminal,” Biggs said, “and it should be.”
Supporters of these statutes also point to the U.S. tradition of due process. A jury decides the outcome, they say, not a dictator or a mayor or a police chief.
“These things are not used much, but it’s kind of a stop sign,” Biggs said. “People will push things to the edge and, if there is no edge, there is no stopping them.”
Meanwhile, Schmidt attached his proposal to another bill in order to bring it to the full Kansas Senate for debate. Under a compromise he offered, the criminal defamation statute would not have applied to comments about public officials or public figures on matters of public concern. The measure failed to advance.
Bonnie Bressers, an assistant professor of journalism at the A.Q. Miller School of Journalism and Mass Communications at Kansas State University, has nearly 25 years of experience as a reporter or editor at newspapers in Wisconsin and Minnesota.