There’s a long history of law enforcement officials using defamation laws to silence their critics. Under English common law, the crime of “seditious libel” prohibited criticism of the government because it could lead to insurrection. And in the Sedition Act of 1798, Congress criminalized false statements criticizing the federal government.
But, as the Supreme Court recognized in a landmark 1964 decision, New York Times Company v. Sullivan, the First Amendment was meant to repudiate the whole notion of seditious libel.
…In its decision upholding the newspaper’s First Amendment rights, the Supreme Court recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
….In states that still have criminal defamation laws on the books, public officials still use them to prosecute their critics.
For example: The editor and publisher of a small newspaper in Kansas were convicted of criminal defamation after the paper published an article suggesting that the mayor lived in another county and was therefore ineligible for public office. …A Kansas man was charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem; the lawsuit was dropped after the ACLU got involved.
…The Exeter Police Department’s criminal complaint against Frese is a textbook example of the use and abuse of criminal defamation laws. Someone who has had a history of trouble with the police went to the internet to air his grievances, and the police department itself decided to prosecute him[.]
This is absurd, and it’s a telling reminder of what happens when law enforcement is given the power to crack down on expression. It’s time we toss criminal defamation laws into the dustbin of history, where they belong.