There are no criminal defamation laws at the federal level.
However, according to the report “Criminal Libel in the Land of the First Amendment” published by the International Press Institute in September 2015, 15 U.S. states retained some form of criminal defamation law: Florida, Idaho, Illinois, Louisiana, Michigan, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah , Virginia and Wisconsin. The U.S. territory of the Virgin Islands also retains criminal defamation .
With regard to the content of these laws, the report notes:
“Many of the statutes duplicate civil defamation – in Louisiana, Montana, New Hampshire, Oklahoma, and Wisconsin – by mentioning exposure “to public hatred, contempt or ridicule” as grounds for the offense. Oklahoma shows particular concern for the reputation of the deceased, specifically using the antiquated phrase “blacken the memory of the dead.” Michigan, Oklahoma, and Virginia explicitly prohibit questioning a woman’s chastity (though the fine is only $25 in Oklahoma). Florida, Illinois, and Michigan have provisions that forbid the libelling of banks and financial institutions (the only instance of criminal libel law in Illinois).”
Criminal Defamation of Public Officials
Criminal Defamation of the Head of State
Criminal Defamation of the State and its Symbols
Criminal Defamation of Foreign Heads of State
Criminal Defamation of Foreign States and Symbols
Criminal Defamation of the Deceased
Criminal Law and Media
The IPI report noted:
“A recent study showed that the number of criminal libel cases prosecuted or threatened with prosecution as a result of media statements has shrunk to less than three per year, which included a recent uptick as states began to grapple with the intersection of the Internet and libel law. Of those criminal libel cases nearly a third involved Internet publication, and a full two-thirds of these cases were the result of a personal insult, or conducive to civil litigation. The most frequent defendant of criminal libel cases were public officials and political candidates, who were targeted in 17 percent of the cases. Journalism professions were involved in only 13 percent of all criminal libel cases. However, another recent study shows that criminal libel is more frequently adjudicated than most media law scholars contend. In David Pritchard’s thorough investigation of criminal libel law in the state of Wisconsin, he found 61 prosecutions of the law initiated in a 16-year period. Because the vast majority of these cases never reached appellate courts or garnered media coverage, they rarely reached public attention. Of Pritchard’s 61 cases, newspapers covered only 13, while only five reached an appellate court. One reason for the paucity of scholars’ attention may be the frivolous nature of a great number of the cases. Thirty-seven of the 61, or 61 percent, of the cases in the Wisconsin study were “purely private quarrels,” with a significant number of these being instances of defamation by a former lover (four specifically involve the spread of HIV/AIDS rumours). Other cases included trivial revenge scenarios, rumour mongering, libelling of competing businesses, and retaliation against a manager or former boss. Only thirteen of the cases involved public officials. A frequent result of the cases was the pleading down of the charge to either disorderly conduct or misappropriation (because of one party posting an online profile or personal information of another party soliciting non-traditional sex).”
The report notes a number of examples of the usage of criminal libel law in recent years. These include:
• In Utah, “high school student Ian Lake was charged with criminal libel after publishing a Website that questioned the morals of high school classmates and accused a school staff member of being the “town drunk,” among other pejoratives. The 16-year-old’s computer was seized and he was incarcerated in a juvenile detention center for seven days. The ACLU of Utah filed a motion to dismiss the case, claiming criminal libel is unconstitutional on its face. The judge denied the motion, but recognized that the case “raises serious and substantial questions about the facial validity of Utah’s criminal libel statute, that there is some merit for the position that the statute is unconstitutional…”
• “A Louisiana man convicted of criminal libel for criticizing a local public official was allowed to continue with his ACLU-backed suit claiming his First Amendment rights were violated when he was arrested in 2008 for the criticisms. In an unpublished email to the local newspaper, he questioned the paper’s lack of reporting on allegations of improper conduct by the public official.”
• “In 2003, University of Northern Colorado student Thomas Mink began publishing a blog titled “The Howling Pig.” It was his intent to poke fun at the school, the campus, and those affiliated through the Website. But he was cautious as well, stating early in the blog’s existence, “While we are currently aiming for a combination of satire and commentary, we will try to avoid publishing anything blatantly lawsuit-worthy.” Shortly thereafter, he posted a computer-altered image of well-known professor Junius Peake in K.I.S.S.-style makeup and a mustache, christening the photo “Junius Puke” and naming him the site’s mascot. Ever careful, Mink posted below the picture that Peake was “an outstanding member of the community as well as asset to the Monfort School of Business where he teaches about microstructure” and that Peake and Puke should not be confused. Professor Peake failed to see the humor and alerted the Greeley, Colorado, police, who turned up at Mink’s residence with a search warrant and confiscated his computer and other accessories related to their investigation into a possible charge of felony criminal libel. U.S. District Court Judge Lewis Babcock quickly threw the case out, stating, “Even our colonialists of America engaged in this type of speech, with great lust and robustness.”
Recent Legal Changes
The IPI report notes that since 1964:
“41 states and territories have either significantly diminished the strength or altogether repealed their criminal libel laws. Eight have done so since the turn of the century, with Washington, D.C., overturning its law in 2001, Arkansas in 2005, Utah, as a result of I.M.L v. State of Utah, in 2007, Washington state in 2009, Kansas in 2011, Colorado in 2012, Georgia in 2015, and Minnesota in 2015 as a result of an appeals court ruling ”.
Notes and Acknowledgements
Information for the United States was originally collected by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). It is reprinted here with the permission of the OSCE. Last update: March 2017.
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.