Appeals Court Doesn't Seem To Like Much About A Criminal Defamation Law Police Used To Arrest A Critic

from the come-on,-they-already-have-'resisting-arrest'-to-abuse dept

Three years ago, cops in New Hampshire arrested Robert Frese for the crime of… insulting some cops. Frese, facing a suspended sentence for smashing the window of a neighbor’s car, left a comment on a local news site, claiming Exeter Police Chief William Shupe was a “coward” who was “covering for dirty cops.”

Instead of taking his online lumps like a true public servant, Shupe had Frese arrested, apparently hoping to use an outdated criminal defamation law to trigger Frese’s suspended sentence to get him locked up for the next couple of years.

That effort failed. The ACLU got involved, as did the state’s Justice Department, which said Frese’s comment was not unlawful. Shortly thereafter, the criminal defamation charge was dropped. A wrongful arrest lawsuit followed, netting Frese a $17,500 settlement. The police, of course, admitted no wrongdoing. Instead, they continued to claim the arrest was lawful and supported by a law that managed to make its way from the 15th century to the 21st century almost untouched.

It isn’t over yet. Frese, along with the ACLU, is still trying to get that law stricken from the books, hopefully in the form of a ruling finding it unconstitutional. Given what’s happening during oral arguments in front of the First Circuit Court of Appeals, it looks like Frese may be on his way to victory. Here’s Thomas Harrison of Courthouse News Service with more details.

“How is law enforcement supposed to determine what would subject a person to hatred, contempt or ridicule?” U.S. Circuit Judge O. Rogeriee Thompson asked the parties assembled at the Boston courthouse this morning. “It’s odd in this political environment that that’s the standard.”

Assistant Attorney General Samuel Garland replied that it’s an “objective” standard because it’s based on “what a reasonable person would believe, not some hypersensitive person.”

Ah, the “objective” standard — the same one deployed by the Exeter Police Chief to arrest a man who had insulted him and his officers. This happened after the Chief approached the local newspaper and asked it to remove Frese’s comment from its site. One overreach led to another and the “objective” police chief decided to arrest someone who had slighted him in a comment section.

The law is undeniably a bad law. Even the person blowing tax dollars to defend it couldn’t do much to defend it.

Chief U.S. Circuit Judge Jeffrey Howard noted that, under New Hampshire law, a group can qualify if it’s “respectable.” He asked, “Does ‘respectable’ have a definition?”

“I’m not sure,” Garland admitted. He suggested a Rotary Club or a church group.

“Doesn’t that give elevated protection to ‘recognized’ social groups and not others?” Thompson shot back.

Unequal protection under the law. That doesn’t sound very constitutional. Neither do the other aspects of the law, which allow police to act as judges and jurors when arresting people for “objective” violations.

In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — circumstances that the ACLU claims creates a conflict of interest when the person is being prosecuted for disparaging the police. Defendants also don’t get a court-appointed attorney or a jury trial.

That sounds more like 15th century England than 21st century United States of America. The fact that this law was used by police to punish someone who insulted police officers is about all the argument against it anyone should need. The state is inexplicably trying to keep this law alive long past its expiration date, knowing full well it was recently abused in an attempt to silence a critic of the local government.

It doesn’t sound like the judges are too impressed with the law or the arguments in defense of it. Hopefully, it will help get this law overturned. The district court said the law wasn’t quite vague enough to sustain Frese’s constitutional allegations, but the Appeals Court judges seem less willing to cut this bad law any slack.

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Comments on “Appeals Court Doesn't Seem To Like Much About A Criminal Defamation Law Police Used To Arrest A Critic”

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14 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

It's not 'abuse' if it was the intended use

The state is inexplicably trying to keep this law alive long past its expiration date, knowing full well it was recently abused in an attempt to silence a critic of the local government.

Nothing ‘inexplicable’ about it, they’re defending it because it’s a handy tool to crack down on those that might be less than ‘deferential’ to authority.

Bergman (profile) says:

Federal crime, too

There’s also the fact that enforcing a state law that conflicts with the US Constitution does not provide any shield whatsoever from being arrested, prosecuted, convicted and punished for violating federal law.

Since a citizen’s arrest for a felony is lawful in New Hampshire and a federal citizen’s arrest is lawful anywhere a state citizen’s arrest is, Shupe and his co-conspirators could be arrested, not merely sued, over this one.

https://www.justice.gov/crt/conspiracy-against-rights

This comment has been deemed insightful by the community.
Anonymous Coward says:

…is still trying to get that law stricken from the books, …

I have come to very much dislike that phrase, "stricken from the books", because that’s not what a court can do.

The court can render it unenforceable, but not strike it from the books. (See this article from Indiana, for instance.)

I think Techdirt has had an article about some laws (memory says, Louisiana, but who knows?) which people have been charged under, despite courts having ruled the law invalid. (See also: Zombie Laws).

ECA (profile) says:

To long

Wow, a law created before the Nation was created?
Would it be wonderful to keep States and fed busy to have to Go back to all the past laws and regs, and see which one pertain to Current circumstances?

I love the idea that cops have a book of laws they are to uphold, but cant walk into a Corp and arrest Any Top brass, without having a warrent and a ton of lawyers behind them. Even if they have a ton of proof that wrong doing was happening.

Scary Devil Monastery (profile) says:

Re: Re:

"Harassment by defamation should be its own crime and should be an exception to section 230 protection."

230 doesn’t protect against defamation either.

Seriously, what is up with people? 230 does only one thing – it insists that the platform isn’t liable for the posts of a user under civil law. That user is liable. Even if said platform moderates the user in question or tosses them out/fails to toss them out.

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