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The Weak Argument in Favor of Criminal Defamation Law
Posted by Ernest Miller on Sunday, December 08 @ 11:37:53 EST Free Expression
John Dean, former counsel to President Nixon, has a column in Findlaw's Writ arguing in favor of a continuing need for criminal defamation law (An Extremely Rare Criminal Libel Case, Currently Proceeding in Kansas, Raises the Question Whether Libel Should Ever Be Prosecuted). Coming from a member of the Nixon administration, this is not surprising.

The case involves a small tabloid, and the warrant for the arrest of the publisher was signed by the District Attorney who was one of the targets of the false statements, although the DA subsequently recused himself from the case. The case is disturbing enough, but the justification offered by Dean is worse (not to mention illogical).

Read more and how this relates to technology below:

Here is the case for criminal defamation as Dean puts it:

If the Rehnquist court did uphold the Kansas law - perhaps with some modifications - it would hardly be as much of a tragedy as First Amendment advocates might pretend. Some cases can only truly be addressed by criminal defamation laws, and thus there is a reason to have these statutes on the books, though they can at times be misused.
A few years ago, three federal law enforcement agents arrested an alleged drug dealer. The alleged dealer, once acquitted, turned on the agents. Well financed, he set about trying to destroy the reputations of the men who had arrested him, making one charge after another.
The agents sued for defamation. (Their jurisdiction had no criminal defamation statute.) A lawyer took their case on a contingency fee basis, but they still had to pay all out-of-pocket expenses - for depositions, travel and the like - themselves, as is customary.
Because these men were public officials, they had to prove "actual malice," which is always a formable task. And so the expenses mounted. The lawsuit quickly became costly, distracting, and protracted. Ultimately, it was also unsuccessful - because, the men contended, the defendant - correctly believing no one would pursue perjury in a civil case - hired witnesses to lie.
In such a situation, only a criminal defamation prosecution can provide protection. No doubt there are many more. Legitimate news organizations do not engage in the type of behavior that calls for criminal prosecution, and it would not be difficult to care out an exception in these statutes for them.
This is hardly a compelling case for criminal defamation. If the drug dealer was "well financed" why wasn't a civil rememdy sufficient? As for having to pay out-of-pocket expenses, isn't that reasonable? It wouldn't be very good for the First Amendment if people could launch libel lawsuits with no cost to themselves.

The law enforcement agents lost the case, but the standard for criminal and civil libel for public figures is the same, "actual malice." Is there any guarantee a criminal prosecution would have been more successful?

No doubt the perjury was important to the case, but that seems more a failure of the district attorney than of law. Apparently, Dean would provide more resources to prosecute libel, rather than more resources to prosecute perjury. However, shouldn't DA's be making these sorts of calls? Shouldn't the DA be more concerned with perjury in libel suits sparked by vengeful criminals?

The real issue here seems to be that some defendants are judgement proof, and thus only criminal statutes can be used against them:

[T]here may be excellent reasons [for not filing a civil defamation suit]. Such suits are costly, problematic, and protracted; defendants without real assets may be effectively judgment proof....
These [First Amendment] advocates would provide a haven for true criminals - those who use words as weapons to hurt others, and are effectively immune to civil remedies.
The problem I see here is that many bloggers are effectively judgement proof. Libel law has developed in a realm where those who could libel owned presses. They could be deterred by civil judgements for the most part. However, now that anyone with a $200 computer can publish to the world, the underlying assumptions of current law have been undermined. The response from those like Dean is to argue in favor of criminal prosecution. Others will argue for easier standards for plaintiffs. Such laws will have to be resisted lest they result in chilling speech as the much abused DMCA notice and takedown provision has.

Dean also makes a further recommendation at the expense of bloggers:

The First Amendment bar would be far better served to focus on getting all state legislature to adopted a model criminal defamation law that addresses the truly criminal situations, such as those outlined above, and steers clear of legitimate media coverage. [emphasis added]
What is "legitimate media"? Why should it have more protection than some guy with a blog? How will distinctions be made? Again, it seems that Dean would be happy to target bloggers and not earn the ire of the New York Times.

For more on this issue please see coverage of Mickey Kaus' talk at the recent Revenge of the Blog Conference here at Yale (Revenge of the Blog: Featured Speaker: Mickey Kaus).

 
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