ACLU asks US Supreme Court to review NH’s criminal defamation statute
Bob Frese believes the Exeter police are corrupt. That belief, not backed by any evidence, would lead to both his arrest on criminal defamation charges and then, ultimately, vindication when the state advised the charges be dropped.
Frese went on to challenge the constitutionality of the state’s defamation law in court himself. And now, after defeats at two lower courts, Frese and his attorneys from the ACLU are asking the U.S. Supreme Court to take up his case, and declare New Hampshire's law and similar versions across the country an unjust chill on free speech.
“What this law does is it gives public officials in New Hampshire, particularly law enforcement, the power to prosecute people for criticizing them, and that's exactly what happened to our client,” said Brian Hauss, an attorney for the ACLU of New Hampshire.
Under New Hampshire’s criminal defamation statute, it is a misdemeanor to say or write anything that you know is false that will expose someone to public hatred, contempt or ridicule.
In practice, the law's critics allege it is a tool for those in positions of power, including members of law enforcement, to silence those who speak out against them. The statute is also unevenly applied, the ACLU contends.
“You would expect to see the court’s dockets absolutely clogged with criminal defamation prosecutions” based solely on what you see on Twitter on a daily basis, Hauss said. “But that’s not what we see. We see a handful of prosecutions.”
In New Hampshire, there were approximately 25 criminal defamation cases filed between 2009 and 2017, according to the ACLU’s brief.
The U.S. Supreme Court last reviewed the issue of criminal defamation more than 60 years ago, ruling in a narrow decision in favor of the defendant who had been arrested after criticizing local judges. The ACLU contends that since then, the law has been arbitrarily enforced in the more than a dozen states that have criminal defamation statutes, and that the time has come to remove the law from the books.
The ACLU argues that allegations of defamation are better handled through the civil court system, where financial penalties, rather than criminal ones, may apply.
“In light of the availability of civil remedies, there is no legitimate need to bring the force of criminal law to bear in this delicate area—particularly given the risk of retaliatory prosecutions when it comes to criticism of public officials themselves,” Hauss wrote in his brief.
The state has previously argued that its statute is not overly vague, and that it relies on the same standards that would apply in a civil defamation lawsuit.
Frese, for his part, has been charged with criminal defamation twice. He pleaded guilty in 2012 to a charge related to his online comments against a local life coach. In 2018 was arrested after making a series of comments on the Facebook page of the Exeter News-Letter, which had reported on the retirement of a local police officer.
“The dirtiest[,] most corrupt cop [Frese] ha[d] ever had the displeasure of knowing,” Frese posted, according to the brief. The newspaper agreed to remove the comment at the department’s request. Frese then reposted under a different pseudonym, “Bob Exeter,” repeating his claims and accusing the town’s chief of corruption.
Frese, a colorful character with a lengthy criminal record, maintains the department is corrupt, though he has never produced any evidence, and at the time of the comments, there were no publicly notified investigations into the department.
The Exeter police arrested Frese on misdemeanor charges, but dropped the case after the New Hampshire Attorney General’s office issued a memo criticizing the arrest. Frese would receive a $17,500 settlement from the town.
The ACLU subsequently filed a federal lawsuit against the state on Frese’s behalf, alleging the statute was an unconstitutional restriction on free speech, and as written, unnecessarily vague. But a federal district court judge, and then a panel of judges from the U.S. Court of Appeals for the First Circuit, rejected those claims.
The New Hampshire Attorney General’s office says it is still reviewing the petition and will respond as appropriate.