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Friday, Dec. 06, 2002

Is criminal defamation a viable concept for the Twenty-first Century, or an ancient relic that should be scrapped? That is the question raised by the case of Kansas v.Carson - and a question the U.S. Supreme Court will probably ultimately have to resolve.

In the Kansas case, David W. Carson (age 85) and Edward H. Powers (age 61) were prosecuted for, convicted of, and sentenced for criminal defamation. Their crime? Using false words as weapons against the mayor, by publishing their political feelings in a tabloid called The New Observer, of which Carson is the publisher, and Powers the editor. According to the New York Times, "[t]he verdict [is] the first time since 1974 that a news organization in the United States has been convicted of such a charge."

Carson and Powers are now appealing their sentences, on the ground that they violate the First Amendment. The case has set off a media storm, and caused great and understandable concern among First Amendment free speech advocates, who fear it will set a dangerous precedent.

"We typically associate criminal defamation with authoritarian governments [read: banana republics]," one advocate told the Associated Press. Meanwhile, The Washington Post - observing that it had believed "the day was long past when an American could be locked up for publishing an untruth about a public official" - called for an end to criminal defamation statutes, which many states still have on their books, arguing that "criminal penalties can only serve as a means for states to intimidate the press."

While this little Kansas twister is not reason for Dorothy to grab Toto and head for the house, it is a troubling case because it may resolve the legal boundaries of criminal defamation - and not necessarily in a way that free speech advocates will like.

The Basis Of The Kansas Criminal Prosecutions

Carson and Powers are dubious characters. Both lost their licenses to practice law because, according to the New York Times, they were "accused of failing to account for thousands of dollars due to clients and associates."

Among other statements, Carson and Powers asked: "Is gossip that Marinovich lives in Johnson County true?" Had Marinovich actually lived in the more affluent Johnson County, she would not have been eligible to be mayor. In fact, it turns out, she lived in Wyandotte County after all: Carson and Powers' insinuation was false.

One can only speculate why Marinovich and others did not file a civil action, but there may be excellent reasons. Such suits are costly, problematic, and protracted; defendants without real assets may be effectively judgment proof.

Instead, District Attorney Tomasic swore out a warrant, and had Carson and Powers arrested for criminal libel. As was proper since he had himself been a target (and was a complaining witness, Tomasic then recused himself (but query whether it was proper for the admittedly biased Tomasic to issue the warrant in the first place). Next, a judge from Jackson County, Tracy Klinginsmith, recused all the prosecutors in Tomasic office - after all, their boss had been directly targeted by the defendants, and was himself recused. Their recusal was also obviously appropriate.

Finally, the Kansas Supreme Court selected a special prosecutor, David Farris, a private attorney from Atchinson County, to try the case. Farris charged Carson and Powers with seven counts of misdemeanor libel. Each count related to where Marinovich and her husband, a Wyandotte County District Judge, resided. (Marinovich's husband, like her, also was required to reside in Wyandotte county by his position.)

At trial, Carson and Powers claimed they thought it was true that Marinovich and her husband did not live in Wyandotte County. The jury didn't buy it, though, and on July 17 of this year, found them guilty of all seven counts.

According to the AP, Farris told the jury, in his closing argument, that "You can't print a lie," explaining, "That's a crime in the state of Kansas and it's a misdemeanor - some of us wish it was a felony."

Carson and Powers were each fined $700, with payment delayed while they appeal. In addition each man was placed on one year of unsupervised probation.

The Kansas Criminal Defamation Statute and Supreme Court Precedents

Overturning the Kansas statute is not going to be easy, for it meets the existing tests of constitutionality. The operative statutory language for this case reads: "Criminal defamation is communicating to a person orally, in writing, ... information, knowing the information to be false and with actual malice ... tending to deprive such person of the benefits of public confidence."

According to another important Supreme Court precedent, Garrison v. Louisiana - decided only eight months after New York Times Co. - criminal defamation statutes must require "actual malice."

Obviously, the Kansas statute complies with Garrison (though according to the Reporters Committee for Freedom of the Press, only three of the twenty states that still have criminal defamation statutes have done the same.)

Notably, Garrison chose not to strike down all criminal defamation statutes, but only to impose the "actual malice" requirement upon them. Still, Justice Brennan's comment in Garrison cast a shadow over all such laws: "Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that ... under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation."

Today, the legal status of criminal defamation is less than clear: Garrison did not invalidate them, but it did criticize them severely.

Nevertheless, if the extremely broad Kansas statute goes up to the U.S. Supreme Court, it may well be upheld. After all, the Rehnquist Court has never (to my recollection, at least) encountered a criminal statute it did not like, and is strongly in favor of state and local power to punish what is within the purview of a given state or locality.

History of Criminal Defamation Laws

In invoking "private physical measures," Brennan was referring to the history of criminal defamation statutes. They are relics of the Nineteenth Century - first adopted to provide a substitute for dueling. The code of honor among gentlemen once called for nothing short of a duel to the death when a gentleman's honor had been insulted. (That, of course, was how Alexander Hamilton died at the hands of Aaron Burr).

In response, criminal defamation statutes made the mere speaking of defamatory words a crime, even if they were true. Such laws sought to keep the peace. Ironically, one Andrew Hamilton (no relation) defended the publisher John Peter Zenger, who was charged with seditious libel against the governor of New York. Mr. Hamilton succeeded in establishing the defense of truth, making it part of our law.*

Sedition laws (speaking ill of the government and its officials) are another antecedent of criminal defamation. But the United States has not had such a law since 1918 repeal of the Espionage and Sedition Acts, which had been adopted during World War I.

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.

Lobbying for A Model Criminal Defamation Law Is the Best Answer

The First Amendment bar is well funded. Rather than merely doing a lot of hyperventilating, hand-wringing, issuing of press releases, and filing of amicus briefs in response to cases like Kansas v. Carson, they should suggest a compromise.

Such a compromise would protect the entities and speakers they truly want to protect. 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.

Instead, they usually take a position that provides a refuge for scoundrels. Indeed, referring to the culprits as scoundrels is too kind: These advocates would provide a haven for true criminals - those who use words as weapons to hurt others, and are effectively immune to civil remedies.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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