Activist Post

New Hampshire lawmakers did not run afoul of the Constitution in making it a crime to ridicule people with false statements, the First Circuit held Tuesday, but a concurring judge said it's time for the Supreme Court to overrule its precedent in this area.

"The case could be a vehicle for the Supreme Court to revisit the doctrine of criminal defamation for the first time in more than 50 years," said Jeffrey Hunt, a First Amendment expert at Parr Brown in Salt Lake City, Utah.

It was in 1964 that the Supreme Court held defamation can be a crime while looking at the prosecution of New Orleans District Attorney Jim Garrison for verbally attacking a number of judges. Garrison was famously portrayed by Kevin Costner in Oliver Stone's 1991 film JFK.

In a concurring opinion Tuesday, however, U.S. Circuit Judge O. Rogeriee Thompson called it time to revisit that idea.

Such laws “cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech,” Thompson opined.

“These laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials,” she added. “It strikes me as out of touch with reality to suggest these laws are not being selectively harnessed or that these laws aren’t particularly susceptible to … abuse.”

The ruling comes less than three months after the Department of Homeland Security disbanded its Disinformation Governance Board, which had attempted unsuccessfully to federalize the policing of false statements.

Today’s case out the New Hampshire Supreme Court involves a comment posted online to a newspaper article. Robert Frese, 67, who lives in a trailer park in Exeter, accused the police officer described in the piece of being corrupt, and he said the officer’s daughter was a prostitute.

After he was arrested for the comment, state law said he wasn’t entitled to a jury trial or a court-appointed lawyer. Ultimately, however, the charges were dropped. Frese and the ACLU in turn brought a lawsuit to strike down the law proscribing false statements that expose someone to “public hatred, contempt or ridicule.”

On the First Amendment issue, the First Circuit said it was bound by the Supreme Court’s 1964 precedent. The 27-page ruling by U.S. Circuit Judge Jeffrey Howard also rejects the ACLU’s claim that the law was unconstitutionally vague.