There is no shortage of bad laws in America. For example in 23 states, libel – published defamation – is a serious crime, for example. In Idaho, criminal libel is punishable by a fine of $5,000 and 6 months in jail, with each publication separate crime. It’s a stupid, dangerous, unconstitutional law and it needs to be repealed.
Let’s examine why it is stupid, dangerous and unconstitutional. Suppose, in this very blog, WC called Donald Trump “dumber than a box of rocks, but without the inherent interest of geology.”1 And let’s assume the Trumpster noticed and took offense at that opinion and pressed Idaho Governor Brad Little (R, Not As Bad As Raul Labrador) to bring criminal charges. Let’s assume Governor Little asks the Idaho Attorney General to proceed.
Is it libel? Idaho law defines libel as
…a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects, of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.
If that seems pretty vague to you, you’re not alone. “Blacken the memory”? Seriously? “Publish the natural defects”? WC supposes by describing Donald Trump’s severely limited intelligence WC is “publishing his natural defects.” So, perhaps, WC’s comment is libel under Idaho law.
Is it criminal libel? Idaho law kinda/sorta defines that:
Every person who wilfully, and with a malicious intent to injure another, publishes, or procures to be published, any libel, is punishable by fine not exceeding $5000, or imprisonment in the county jail not exceeding six (6) months.
WC certainly said what he said wilfully. Idaho’s libel statutes date from about 1972, so they are older than the Internet, but let’s assume that posting something on the Internet is “publishing” for purposes of the crime. That leaves “malicious,” the last element. What is “malicious”?
Idaho law has something to say about that, too:
An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.
So the State of Idaho doesn’t have to prove WC was “malicious;” it’s presumed in the absence of a “justifiable motive for making it known”? What in the world does that mean? It’s not defined anywhere. Who decides what is a “justifiable motive”?
Well, it turns out the jury does. which takes us to the scariest section of the law:
In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury has the right to determine the law and the fact.
This section is scary because it says, plainly, that you can’t defend yourself by proving it’s true, that Trump is, in fact, dumber than a box of rocks. You also have to persuade the jury that you published it with “good motives,” whatever that mean, and that you did so for “justifiable ends,” another mysteriously vague term, undefined by statute but to be decided by the jury.
If the case was brought in Idaho County, for example, where Trump received 78.3% of the popular vote, WC suspects he might have a smidgen of difficulty persuading a jury that WC has those “good motives” and “justifiable ends.”
Idaho’s law is almost certainly void for vagueness, even in a SCOTUS run by Chief Justice John Roberts. Even among judges appointed by the Trumpster himself. But proving that is a hideously expensive and time-consuming business. Someone who had more self-reflection than WC might even be intimidated by the threat. Which is what makes dangerous: it can be used to intimidate. And that’s all without even mentioning the First Amendment.
You think WC doesn’t need to be worried?
Consider New Hampshire citizen Robert Frese, who called a New Hampshire police officer who had given him a traffic citation “a dirty cop.” The police chief, Mr. Frese added, was a coward who had covered up the matter. The New Hampshire police arrested Mr. Freese, saying he had committed criminal libel. New Hampshire’s criminal libel statute differs from Idaho’s only in details. According to the New York Times, about 25 people have been charged with violating New Hampshire’s criminal libel law from 2009 to 2017, The number is confirmed in a lawsuit filed last month on behalf of Mr. Frese by the American Civil Liberties Union.2
Nationwide, according to a preliminary count by Eugene Volokh, a law professor at the University of California, Los Angeles, “it appears that they happen about 20 times per year, and often lead to convictions.”3
All of which is why WC thinks these kinds of statutes are stupid, dangerous and unconstitutional. If only because they give cops with delicate sensibilities the power to arrest citizens who have committed no crimes except possession of forceful opinions.
- Remember, this is just a hypothetical. WC would never presume to insult innocent rocks by comparing them to the current U.S. President. Not even shales or chalks. ↩
- The Exeter Police Department dropped its criminal charges after getting a memo from the prosecutor pretty much saying what WC has argued in this blog post. ↩
- Alaska readers: Alaska abandoned its criminal libel statutes with the reform of the Alaska criminal code back in 1978. The law professor the Legislature hired to lead that effort called the abandoned laws “unconstitutional archaisms.” Yep. ↩