Is it Constitutional to Prosecute Someone for Saying Mean Things?

A man who was arrested for calling his local police chief a “coward” on Facebook has provoked a sharp debate in the First Circuit over his claim that New Hampshire’s criminal defamation law is unconstitutionally vague, reports the Courthouse News Service. The law makes it a crime to knowingly say something false that will subject someone to “hatred, contempt or ridicule” within the person’s “professional or social group.”  The Exeter, N.H., police arrested Frese, saying he broke the law because there was no evidence that his statement was true. But after the case generated local publicity, the New Hampshire Department of Justice stepped in and said the cops had used the wrong standard and that even if the statement were false, Frese shouldn’t be prosecuted if he believed it was true.

Frese and the ACLU brought a lawsuit seeking to have the law struck down altogether. The ACLU also claimed that the law violated the First Amendment, but the judges focused solely on the vagueness issue. According to the ACLU, prosecutions for criminal defamation are on the increase as a result of social media, which makes it easier for police and others to know who is criticizing them. A common criticism of criminal defamation laws is that they’re frequently used to silence political opposition. Today 13 states still have criminal defamation laws: Idaho, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia and Wisconsin. Another dozen or so states criminalize hate speech against minorities.