Louisiana's Criminal Defamation Law Abused Again, But This Time The Gov't Gets Away With It

from the don't-insult-the-king(s) dept

Louisiana has a bad law that needs to be taken off the books. (Well, it probably has several but this discussion will only deal with one.) Previous court decisions have ruled the law unconstitutional but somehow it lives on to be a vehicle of harassment by law enforcement, often at the encouragement of government officials.

This would be Louisiana's criminal defamation law. This was the law (ab)used by Sheriff Jerry Larpenter of Terrebonne Parish to shut down an online critic by raiding the blogger's home and seizing several electronic devices. The target of the supposed defamation was a board commissioner -- someone who wasn't actually covered by the law, which only provides for charges when the person allegedly defamed is not a public figure.

A federal appeals court recently stripped Sheriff Larpenter of his immunity for abusing this law. It stated the outcome bluntly in the first sentence of its opinion.

Some qualified immunity cases are hard. This case is not one of them.

The court points out both the Supreme Court of the United States and Louisiana's highest court have reached the same conclusion: the law cannot be applied to speech targeting public officials.

Concluding that "[i]t is for the [state] Legislature to correct [§§ 14:47-49's] constitutional infirmity"—namely, "its overbroad application" as identified in Garrison—the Louisiana Supreme Court held §§ 14:47-49 "to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals engaged in public affairs." Id. at 668; see also State v. Defley, 395 So.2d 759, 761 (La. 1981) (observing that § 14:47 "is unconstitutional insofar as it punishes public expression about public officials").

Since Snyder, the Louisiana legislature has not revisited §§ 14:47-49. The Louisiana Supreme Court's holding as to the reach of § 14:47 therefore remains the law of the land.

Not that anyone appears to have noticed. Sheriff Larpenter ignored two high court rulings to bring charges under the law in a way that specifically violated these court findings. But Larpenter isn't the only law enforcement official abusing the law. And far from the only government official in general.

The Fifth Circuit Court of Appeals has handled another case springing from the unconstitutional application of the state's criminal defamation law. While the findings aren't nearly as favorable to the appellant, the decision [PDF] does point out the law cannot legally be used the way it has been in this case.

Just like the Larpenter case, this one begins with offended public officials.

Sometime before April 16, 2012, the Livingston Daily Times published an opinion piece titled “Sue Happy Seven Councilmen,” which discussed complaints about the Livingston Parish Council’s misuse of public funds. A URL link to the piece was posted on a separate Facebook page maintained by the Livingston Daily Times. The Facebook post was open to public comment. Using a pseudonym, someone posted “critical comments” about three Council members—James R. Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent (the “Council Defendants”). McLin alleges that the statements “merely constituted criticism of official conduct of public officials.”

Even if the comments were defamatory (something the court doesn't discuss), the correct response would be a civil suit, not criminal charges. But if the state legislature isn't actually going to repeal the shitty law, the following sort of things are going to keep happening.

On April 20, 2012, Parent filed a report with the Livingston Parish Sheriff’s Office (“LPSO”) alleging that the anonymous Facebook user had “posted a comment in regards to numerous elected counsel [sic] members.” In response, LPSO Detective Benjamin Thomas Ballard obtained subpoenas to Facebook and Charter Communications. The subpoena responses linked McLin’s home address to the Facebook account that posted the critical comments. Ballard obtained a search warrant for McLin’s home, and he and LPSO Detective Jack R. Alford, Jr. executed the search warrant on June 11, 2012. Ballard and Alford confiscated electronic devices and equipment, and a forensic analysis purportedly linked one of the confiscated computers to the anonymous Facebook user.

Anyone could have put a stop to this. But no one did, not even officers who -- as another federal court put it when dealing with this stupid statute -- are "presumed to know the law."

Upon receiving this information, Ballard, Alford, and other officers (together with Sheriff Jason Gerald Ard, the “Officer Defendants”), and the Council Defendants (together with the Officer Defendants, the “Defendants”) met on August 16, 2012, to discuss pursuing criminal charges against McLin. Some of the officers urged that criminal defamation charges under Louisiana’s criminal defamation statute—Louisiana Revised Statute § 14:47—were warranted. The Council Defendants asked to pursue the charges against McLin and “swore out criminal complaints” contending that they were each subjected to criminal defamation as a result of comments McLin allegedly posted to Facebook.

Thin skins and stupid laws are great for generating civil rights lawsuits. McLin turned himself in after finding out three arrest warrants had been sworn out. The district attorney dropped all charges four months later. McLin has a good case, one would think. According to the court, the lawsuit should be allowed to continue...

The factual allegations in McLin’s complaint sufficiently plead that the Defendants lacked probable cause to prosecute McLin for violating the Louisiana criminal defamation statute. McLin alleges that the anonymous Facebook comments—posted to a news story about Council members and the Council’s misuse of public funds—did not amount to criminal defamation but rather “merely constituted criticism of official conduct of public officials.” Speech criticizing the official conduct of public officials is protected by the First Amendment and does not constitute criminal defamation.

McLin further alleges that, upon linking the comments to him, and with knowledge that McLin’s comments were protected by the First Amendment, the Defendants met and conspired to create falsified affidavits for the purpose of obtaining arrest warrants on charges of criminal defamation. See Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987) (“[A]n officer charged with enforcing Louisiana law[] can be presumed to know that law.”). On these facts, which must be taken as true, we conclude that McLin’s complaint adequately alleges an unreasonable seizure because the Defendants could not have believed they had probable cause to arrest him.

Unfortunately, all the good news for McLin ends there. The court still grants immunity to the officers on the Fourth Amendment claims basically because McLin turned himself in rather than wait around to be arrested.

Here, we cannot say that every reasonable officer would understand that McLin was seized for purposes of the Fourth Amendment. To date, neither the Supreme Court nor the Fifth Circuit has decided that an officer’s acceptance of a voluntary surrender to an arrest warrant constitutes a Fourth Amendment seizure. And there is no a “robust consensus of persuasive authority”: only one circuit—the Eleventh—has found a seizure in these circumstances in a published opinion, and a majority of circuit courts have not yet weighed in. Although we now hold that McLin was seized, reasonable officers might not have understood that accepting McLin’s surrender to the arrest warrants, without imposing further pre-trial restrictions, constituted a seizure.

This decision contrasts sharply with the opinion released by Louisiana's district court. Both deal with the same law -- one twice ruled unconstitutional -- and yet no one abusing the law will suffer any ill effects. McLin did the cops a favor by showing up at their place with his hands ready for cuffing. And for that, he can't sue law enforcement officers who sought arrest warrants based on a law they should have known couldn't be used to bring charges against McLin.

Louisiana has enough rights violating going on at any given time. There's no reason legislators should allow this law to remain on the books any longer. The only thing it does is encourage people the law doesn't apply to (public figures) to work with compliant law enforcement agencies to shut down criticism.


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  • identicon
    Anonymous Coward, 18 Aug 2017 @ 6:52am

    "and yet no one abusing the law will suffer any ill effects."

    that changes when people finally wake up.

    zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

    yep, still sound asleep

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Aug 2017 @ 7:02am

    Last i heard you're criminally liable if you don't automatically cooperate with law enforcement, regardless of whether they're following the law.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Aug 2017 @ 7:36am

      Re:

      "Last i heard you're criminally liable if you don't automatically cooperate with law enforcement, regardless of whether they're following the law."


      Yeah - I think they refer to that as obstructing justice.
      So, you get charged for the crime they committed - brilliant!

      reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 18 Aug 2017 @ 7:27am

    Only an idiot turns himself in!

    Instead, you should wait for SWAT to toss a smoke grenade in your baby's crib, kick in the door, and rush in guns blazing.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Aug 2017 @ 7:38am

      Re: Only an idiot turns himself in!

      They do that anyway .. to the wrong house.
      Those people didn't even get the chance to "turn themselves in".

      reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 18 Aug 2017 @ 7:53am

    Next time one of these fraudulent arrest warrants is issued, instead of turning themselves in they should just slowly roll past the police station in a white Ford Bronco...

    Seems like the judge was using any flimsy excuse he could to save the police and town from civil liability. Hopefully an appeals court will be able to correct this. IANAL, but it seems like the method he was arrested is irrelevant, and that he would have some level of valid complaint stemming from the mere existence of the fraudulent arrest warrant.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Aug 2017 @ 8:41am

      Re:

      but it seems like the method he was arrested is irrelevant, and that he would have some level of valid complaint stemming from the mere existence of the fraudulent arrest warrant.

      I concur. I would also argue that the police (who are "presumed to know the law" and therefore can be presumed to have known the warrant was fraudulent and therefore void) should be liable for the resulting detention. If he had showed up to surrender and the cops told him "This warrant is bogus. Go home. We don't want to put you in jail," I could see the court wanting to wave away the inconvenience of the attempted surrender. Since the police did actually detain him, they should answer for that at the very least.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 18 Aug 2017 @ 8:57am

    There's no reason legislators should allow this law to remain on the books any longer. The only thing it does is encourage people the law doesn't apply to (public figures) to work with compliant law enforcement agencies to shut down criticism.

    OK, this is the part I don't get. If the law's been found unconstitutional, does it even need to be repealed? I was under the impression that it automatically gets stricken down by judicial review.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 18 Aug 2017 @ 9:10am

      Re:

      I think they only found it partly unconstitutional, and asked the legislature to fix it. Something I do not totally understand. Seems to me it should be binary.

      That the legislature has failed to follow through is yet another matter, and I do not know how that is to be corrected from a judicial standpoint. Though, allowing the law to be used in any way prior to being fixed seems like a continued violation of the constitution. At least to me.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Aug 2017 @ 9:10am

      Re:

      If the law's been found unconstitutional, does it even need to be repealed?

      That sounds odd to me too. I'd think that even if it stayed on the books, anyone harmed by it could obtain a fairly summary victory by asserting that the law was previously ruled unconstitutional, is therefore void, and therefore offers no cover to the other party.

      However, for the case described here, the events happened 5 years ago, so it's possible that no courts had ruled it unconstitutional at the time of the abuse. Given the vast deference that courts grant cops about "good faith," I'd honestly be surprised if the courts ruled against the cops for abusing a law that had not, at the time of the abuse, been explicitly ruled unconstitutional. (Of course, I'm also surprised that the courts would write something as pro-rights as "police are presumed to know the law," since that seems to cut strongly against defenses of "good faith.")

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Aug 2017 @ 9:55am

    Branch disconnect

    There seems to be a disconnect between the judicial and legislative branches in that one cannot force the other to do anything.
    So an unconstitutional law can stay on the books forever while being abused and only dealt with by the courts each and every time.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 18 Aug 2017 @ 10:41am

    can be presumed to know that law unless we decide that good faith in their wrong understanding of things slides that out of the way.

    He had multiple warrants & turned himself in to avoid a perp walk high danger no knock raid of where ever he was to try to remind him he shouldn't speak ill of his betters.

    Its a pity there isn't a law (i bet there is) where someone could attempt to sue the legislature as a whole for failing to removed unconstitutional laws from the books. This isn't a this editorial says its bad, its multiple courts.

    Citizens are being terrorized & silenced, yet those charged with representing them can't be bothered to remove a law that's being misused. I guess they are hoping the fear of pointless lawsuits & arrests will keep people from calling them a bunch of moronic idiots unfit to lead a parade let alone a state.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Aug 2017 @ 11:44am

    To date, neither the Supreme Court nor the Fifth Circuit has decided that an officer’s acceptance of a voluntary surrender to an arrest warrant constitutes a Fourth Amendment seizure.

    This is an interesting point, particularly in light of the ongoing Kim Dotcom debacle in which the courts have claimed that his refusal to hand himself over voluntarily qualifies him as a fugitive, thus making him ineligible to argue in US court.

    So we now have the precedent that voluntarily turning yourself in waives your fourth amendment rights, while failing to voluntarily turn yourself in waives your right to legally challenge seizures in court. Either way, the fourth amendment now literally means nothing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2017 @ 11:13am

    N'est-il pas évident?

    "There's no reason legislators should allow this law to remain on the books any longer."

    Um, Louisiana AND legislators - isn't it obvious?

    reply to this | link to this | view in chronology ]

  • identicon
    NoMoarSpyRing, 22 Aug 2017 @ 1:46am

    Marxists got winded? Try a Pakistani ISI Senate Spy Ring out at break time.

    Enough of this Commie Marxist circus.

    Is Your Senator CURRENTLY Compromised in the Spy RING?

    https://trello.com/b/RMx1r5dG/hillarys-hamlettruth-leaks-hcs-leakershackers-henchmenseries-54-3 50-awan-spy-ring


    Your welcome

    reply to this | link to this | view in chronology ]

  • icon
    rosa (profile), 22 Aug 2017 @ 6:20pm

    Compromised

    Compromised may right or wrong ?
    who knows?


    http://www.weeweesworld.com/

    reply to this | link to this | view in chronology ]


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