CONCORD — A federal court judge is leaning toward denying a motion to dismiss a lawsuit filed by the American Civil Liberties Union to challenge the state’s criminal defamation law.
“I am disinclined to dismiss the case, but I am going to give it a few days,” said Judge Joseph N. Laplante during a motion to dismiss hearing in U.S. District Court on Friday afternoon.
The lawsuit, which names Attorney General Gordon MacDonald, was filed on behalf of Robert Frese, an Exeter resident who was twice arrested and charged with criminal defamation under the law.
Assistant Attorney General Lawrence Edelman and ACLU lawyers Gilles R. Bissonnette and Brian Hauss debated their cases for standing and merit of the lawsuit for more than two hours Friday.
The lawsuit argues that New Hampshire’s criminal libel law — and laws like it across the nation — violates the First Amendment, gives the public far too little guidance on what may constitute a crime, and gives law enforcement far too much discretion in deciding whom to prosecute.
The complaint argues such laws are unnecessary when civil lawsuits are fully capable of addressing the harms caused by defamation.
Frese’s second arrest came last May after he posted comments to a Seacoast Online article about a retiring police officer, accusing the officer of misconduct. He also wrote that Exeter Police Chief William Shupe “covered up for this dirty cop.”
A few weeks later, Exeter police filed a criminal complaint against Frese that alleged he “purposely communicated on a public website, in writing, information which he knows to be false and knows will tend to expose another person to public contempt, by posting that Chief Shupe covered up for a dirty cop.”
The police ultimately dropped the charges.
Bissonnette told Laplante that similar cases will continue to happen if changes aren’t made.
“Mr. Freese’s rights were violated even if he wasn’t convicted,” Bissonnette said. “(The law) is too vague and arbitrary and it will be used against protected speech.”
In court documents, Edelman wrote that the statute does not “threaten to inhibit the exercise of constitutionally protected rights.”
The law states a person can only be found guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.
“I think it is a very high burden to meet and I don’t see any reason it should be stricken,” Edelman told Laplante.
Edelman also argued the law is not unconstitutionally vague.
“The statute is pretty darn clear that the person needs to know,” he said of defamatory statements.
After the hearing, Bissonnette said the ACLU is hopeful the case continues.
“It gives us an opportunity to develop our records supporting our position that this law is unconstitutional,” he said. “It gives law enforcement substantial discretion to criminalize and prosecute individuals who are critical of government officials.”
Laplante said the courts have looked at criminal defamation in the past and it’s a serious matter.
“If there is a way to do it, New Hampshire is looking pretty good,” he said.