Amicus Curiae Brief — Robert Frese, Petitioner v. John M. Formella, Attorney General of New Hampshire

No. 22-939

In the Supreme Court of the United States

ROBERT FRESE,

Petitioner,

v.

JOHN M. FORMELLA, in his Official

Capacity as Attorney General of the

State of New Hampshire,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR INSTITUTE FOR FREE

SPEECH AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

ALAN GURA

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., N.W.

Suite 801

Washington, DC 20036

202.301.3300

agura@ifs.org

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

(434) 924-3127

dro@virginia.edu

I

TABLE OF CONTENTS

Page

Table Of Contents .................................................. I

Table Of Authorities ............................................. II

Interest Of Amicus Curiae .................................... 1

Summary Of Argument ......................................... 1

Argument ............................................................... 2

I. Criminal libel, an instrument of the Star

Chamber, was originally unknown to the

common law ...................................................... 2

II. Criminal libel is repugnant to the original

understanding of the Free Speech Clause ....... 9

A. The backlash to the Alien and Sedition

Acts reveals the Free Speech Clause’s

original public meaning ............................. 9

B. Criminal libel functions as seditious libel,

enabling public officials to punish their

critics ........................................................ 11

III. Officials’ use of criminal libel to stifle

political and social criticism continues

today .............................................................. 15

Conclusion ............................................................ 25

II

TABLE OF AUTHORITIES

Page

Cases:

de Libellis famosis (1606) 77 Eng. Rep. 250 (Star

Chamber) ............................................................. 5

Fitts v. Kolb, 779 F. Supp. 1502 (D.S.C.

1991)............................................................. 19, 20

Garrison v. Louisiana, 379 U.S. 64 (1964) ............ 12

Mink v. Knox, 613 F.3d 995 (10th Cir. 2010)......... 20

Mink v. Suthers, 482 F.3d 1244 (10th Cir.

2007)............................................................. 20, 21

Near v. Minnesota, 283 U.S. 697 (1931) .................. 3

Tuchin’s Case (1704) 90 Eng. Rep. 1133 (KB) ......... 7

Rex v. Bear, British Library, Hardwicke Papers,

Add. M.S. 35981 (1699) ....................................... 7

United States v. Press Publ’g Co., 219 U.S. 1

(1911) ........................................................... 17, 18

United States v. Smith, 173 F. 227 (D. Ind.

1909)................................................................... 17

Williamson v. State, 295 S.E.2d 305 (Ga. 1982) .... 19

Statutory Provisions:

The Act for the Abolition of the Court of Star

Chamber, July 5, 1641, reprinted in The

Constitutional Documents of the Puritan

Revolution, 1625-1660, 181 (Samuel Rawson

Gardiner ed., 3rd ed. rev. 1906) .......................... 5

Assimilative Crimes Act, ch. 576, s. 2, 30 Stat.

717 (1898) .................................................... 16, 17

III

TABLE OF AUTHORITIES

Page

Fox’s Libel Act 1792, 32 Geo. 3 c. 60 (Eng.) ............. 7

Sedition Act, ch. 74, 1 Stat. 596 (1798) .................... 9

Miscellaneous:

The Action of the Government Against The New

York World as a Revival of the Offense of

Scandalum Magnatum, 68 Cent. L.J. 135

(1909) ................................................................. 16

Hannah Beech, Woman Is Sentenced to 43 Years

for Criticizing Thai Monarchy, N.Y. Times

(Jan. 19, 2021), https://perma.cc/95TGR9KZ .............................................................22-23

Michael Beltran, Calls to End Criminal Libel

in Philippines After Critic Arrested, Al

Jazeera

(Aug.

11,

2022),

https://perma.cc/P3W6-7WR3 ........................... 22

4 William Blackstone, Commentaries on the Laws

of England (1769) ................................................ 7

Henry Bodkin, Gordon Brown’s Sister-in-law

Who Exposed Malaysia Scandal Fears

International Arrest, The Telegraph (Oct. 2,

2021), https://perma.cc/PCA2-GU2S................. 22

Christian Boone, Legal Win for Ga Woman

Arrested After Facebook Post About ExHusband, The Atlanta J.-Const. (Oct. 23,

2019), https://perma.cc/PGS7-MGDK ......... 18, 19

Irving Brant, The Bill of Rights: Its Origin and

Meaning (1965) .................................................... 8

IV

TABLE OF AUTHORITIES

Page

Irving Brant, Seditious Libel: Myth and Reality,

39 N.Y.U. L. Rev. 1 (1964) .............................. 5, 6

A Brief Account of Archbishop Laud’s Cruel

Treatment of Doctor Leighton, in George

Benson, A Collection of Tracts 213 (3rd ed.

1748).................................................................3- 4

Frank Irving Cobb, Lese-Majesty, N.Y. World,

Dec. 16, 1908, reprinted in John L. Heaton,

Cobb of “The World”: A Leader in Liberalism

8 (1924) .............................................................. 16

Sir Edward Coke, The Third Part of the Institutes

of the Laws of England (London, W. Clarke &

Sons 1817).........................................................5-6

Conducting Background Investigations and

Reference Checks, Soc’y for Hum. Res. Mgmt.,

https://perma.cc/78MY-C49F ............................ 13

Robyn Dixon, Navalny Dismisses Libel Case

Against Him as ‘Nonsense’ in Third Day of

Russian Trial, Wash. Post (Feb. 16, 2021),

https://perma.cc/4RPY-GLRW .......................... 23

Documents Related to the Proceedings Against

William Prynne, in 1634 and 1637 (Samuel R.

Gardiner ed., 1877).............................................. 4

French Woman Faces Trial, €12,000 Fine for

‘Insulting’ Macron on Facebook, France 24

(Mar. 29, 2023), https://perma.cc/7WRFHPEQ ........................................................... 24, 25

V

TABLE OF AUTHORITIES

Page

Fugitive Russian Father Convicted of Insulting

Army Detained in Belarus, Reuters (Mar. 30,

2023), https://perma.cc/TF3Q-GKTF ................ 23

Michael T. Gibson, The Supreme Court and

Freedom of Expression from 1791 to 1917, 55

Fordham L. Rev. 263 (1986)........................ 17, 18

Philip A. Hamburger, The Development of the

Law of Seditious Libel and the Control of the

Press, 37 Stan. L. Rev. 661 (1985) .............. 5, 6, 7

Int’l Press Inst., Colorado Repeals Criminal Libel

Law,

ifex

(Apr.

20,

2012),

https://perma.cc/JC89-FAV8 ............................. 21

Lydia Johnson, The Illusion of a Second Chance:

Expunctions Versus the Law School and State

Bar Application Process, 9 Fla. A&M U. L.

Rev. 183 (2013) .............................................13-14

John Kelly, Criminal Libel and Free Speech, 6 U.

Kan. L. Rev. 295 (1958) ....................... 8, 9, 10, 17

James M. Kerr, Letter to the Editor, The World

Libel, 68 Cent. L.J. 253 (1909) .......................... 17

Jane E. Kirtley & Casey Carmody, Criminal

Defamation: Still “An Instrument of

Destruction” in the Age of Fake News, 8 J. Int’l

Media & Ent. L. 163 (2020) ................... 11, 12, 14

Robert A. LeFlar, The Social Utility of the

Criminal Law of Defamation, 34 Tex. L. Rev.

984 (1956) .................................................... 11, 12

VI

TABLE OF AUTHORITIES

Page

Gregory C. Lisby, No Place in the Law: The

Ignominy of Criminal Libel in American

Jurisprudence, 9 Commc’n L. & Pol’y 433

(2004) ........................... 3, 7, 10, 11, 12, 14, 19, 20

James Madison, Report Accompanying the

Virginia Resolution, reprinted in 4 The

Debates in the Several State Conventions on

the Adoption of the Federal Constitution 570

(J. Elliot ed., 1866) ............................................ 10

2 Thomas Erskine May, The Constitutional

History of England Since the Accession of

George Third (1863)............................................. 6

William T. Mayton, Seditious Libel and the Lost

Guarantee of a Freedom of Expression, 84

Colum. L. Rev. 91 (1984) ........................... 8, 9, 10

Josh Moody, Ban the Box: Opening the Door to

College for Felons, U.S. News & World Rep.

(Jan. 17, 2020), https://perma.cc/2B6U-F38C .. 13

Clyde Peirce, The Panama Libel Cases, 33 Ind.

Mag. Hist. 171 (1937) ............................ 15, 16, 18

Faimon A. Roberts III, Judge Rules Arrest of

Agent for Defamation in Nanette Krentel

Death Investigation Was Illegal, Nola.com,

(May 16, 2022), https://perma.cc/Q3AP2PL6 ............................................................. 21, 22

Theodore Roosevelt, Message to the Senate and

House of Representatives, Dec. 12, 1908, in H.

Journal, 60th Cong., 2d Sess. 72 (1908). .......... 15

VII

TABLE OF AUTHORITIES

Page

Russia: Authorities Launch Witch-Hunt to Catch

Anyone Sharing Anti-War Views, Amnesty

Int’l (Mar. 30, 2022), https://perma.cc/F7MD9YUG ................................................................. 23

Matthew L. Schafer & Jeff Kosseff, Protecting

Free Speech in a Post-Sullivan World, 75 Fed.

Commc’n L.J. 1 (2022) ....................................... 11

Kathy Short, Zambian Opposition Leader

Charged with Criminal Libel, Hate Speech,

VOA (Nov. 2, 2022), https://perma.cc/TRX95966 .................................................................... 22

TransUnion SmartMove, TransUnion Independent Landlord Survey Insights (Aug. 7,

2017), https://perma.cc/TS4V-8J4D .................. 13

Uganda Urged to Free Two Journalist [sic] Held

Since Last Week on Libel Charges, Reps.

Without

Borders

(June

4,

2022),

https://perma.cc/G26Q-LSHV ........................... 22

Van Vechten Veeder, The History and Theory of

the Law of Defamation, 3 Colum. L. Rev. 546

(1903) ............................................................... 3, 5

Virginia Circuit Court Form CC-1473,

Instructions for Petition for Expungement

Filed in a Circuit Court — Acquittal/

Dismissal, https://perma.cc/W5LL-BJZN ........ 13

VIII

TABLE OF AUTHORITIES

Page

Eugene Volokh, Criminal Libel Prosecution—

Under a Statute Struck Down 30 Years

Before, The Volokh Conspiracy (Sept. 21,

2018), https://perma.cc/6W58-AWSS ................ 18

Ed Vulliamy, Italy’s PM Meloni Sues Gomorrah

Writer in Libel Drama over Refugee Rescue,

The

Guardian

(Nov.

13,

2022),

https://perma.cc/ZY8Y-LE3Q ............................ 24

1

INTEREST OF AMICUS CURIAE 1

The Institute for Free Speech is a nonpartisan,

nonprofit organization dedicated to securing the First

Amendment rights of free speech, assembly, press, and

petition. Along with scholarly and educational work,

the Institute represents individuals and civil society

organizations in litigation securing their First

Amendment liberties. A core aspect of the Institute’s

mission is to protect free expression for political

speech.

This case interests amicus because criminal libel

laws imperil political speech.

SUMMARY OF ARGUMENT

The law of criminal libel has long raised fear of

political persecution. The mere threat of prosecution

may cause speakers to trim their speech, and

prosecutions, even if ultimately dismissed or

overturned on appeal, can cause long-lasting injuries.

Despite these worries, this Court has never held

criminal libel repugnant to the First Amendment. It

should now do so.

This Court has stated that the perceived longstanding common-law pedigree of criminal libel

insulates it from First Amendment scrutiny. That

pedigree, however, is mistaken. It reflects, at best, Sir

1 No person other than amicus and its counsel has authored any

part of this brief or made any monetary contribution intended to

fund its preparation or submission. Both parties’ counsels of

record received notice of amicus’s intention to file this brief at

least ten days before its due date.

2

Edward Coke’s mistaken view of legal history and at

worst his intentional creation of a myth to defend and

extend the Star Chamber’s reach. In any event, public

backlash to the Alien and Sedition Acts shortly after

the Founding shows that the American people

repudiated this view of the common law whatever its

historical warrant.

They did so for good reason. Criminal libel

functions as seditious libel and allows public officials

to punish people who criticize them. The mere threat

of criminal prosecution can deter valuable speech, and

actual prosecutions can harm those prosecuted even if

the charges are ultimately dismissed or overturned on

appeal.

Recent, real-life criminal prosecutions demonstrate

these dangers. They show public officials bringing the

full brunt of criminal prosecution upon those who have

dared to criticize them. Officials have found the tool

irresistible, and current leaders in both authoritarian

and democratic regimes regularly employ it.

This Court should recognize that criminal libel

endangers core political speech and is incompatible

with the First Amendment.

ARGUMENT

I. Criminal libel, an instrument of the Star

Chamber, was originally unknown to the

common law.

This Court has viewed criminal libel as

presumptively constitutional, believing that “[t]he law

of criminal libel rests upon th[e] secure foundation” of

3

the “common[ ] law.” Near v. Minnesota, 283 U.S. 697,

715 (1931) (dictum). But this perception of criminal

libel as a long-standing, traditional common law crime

is mistaken. Criminal libel law owes its origins not to

the common law, but rather to the Star Chamber. In

sixteenth-century England, the Star Chamber

assumed jurisdiction of criminal libel from the

disappearing ecclesiastical courts and dramatically

repurposed it. Gregory C. Lisby, No Place in the Law:

The Ignominy of Criminal Libel in American

Jurisprudence, 9 Commc’n L. & Pol’y 433, 448 (2004).

No longer did criminal libel focus broadly on protecting

morality, punishing “sin,” and preventing breaches of

the peace. See id. at 445. It became instead the method

by which English noblemen and public officials

silenced their critics. Id. at 448.

This turn to the Star Chamber was unsurprising.

Because criminal libel was unknown to the common

law, public officials seeking a weapon more potent

than civil defamation needed a tribunal with

“practically unlimited authority,” tasked with

remedying wrongs “which could not be effectively

remedied by the ordinary courts of law.” Van Vechten

Veeder, The History and Theory of the Law of

Defamation, 3 Colum. L. Rev. 546, 562 (1903). The

Star Chamber fit this bill. It “disregarded forms,” was

“bound by no rules of evidence,” and “appointed and

heard only its own counsel.” Id. at 563.

Punishment was quick and severe. Lisby, 9

Commc’n L. & Pol’y at 448. Consider Dr. Alexander

Leighton, whom the Star Chamber convicted of

criminal libel in 1630. A Brief Account of Archbishop

4

Laud’s Cruel Treatment of Doctor Leighton, in George

Benson, A Collection of Tracts 213, 219-220 (3d ed.

1748). Leighton was arrested for publishing a book

that was highly critical of the Queen and of several

bishops—in particular, Archbishop Laud. Id. at 216.

The Star Chamber imposed a sentence upon Leighton

so cruel that, years later, members of the Long

Parliament were moved to tears when Leighton

recounted his sufferings to them. Id. at 224. Leighton

was hauled to the pillory and whipped; he then had

one of his ears cut off and one side of his nose slit. Id.

at 221. Leighton was also branded on each cheek with

an “S” to label him forever a “Sower of Sedition.” Id.

After spending several days in prison, he was again

taken to the pillory where he was whipped, his other

ear cut off, and the other side of his nose split. Id. He

was then returned to prison for a life sentence. Id.

The Star Chamber similarly punished William

Prynne, who was convicted of seditious libel for

publishing a book critical of the King. See Documents

Related to the Proceedings Against William Prynne, in

1634 and 1637, at 1-28 (Samuel R. Gardiner ed., 1877).

It divested Prynne of his university degree, expelled

him from the Inns of Court, and forced him to stand in

the pillory wearing a sign declaring his book libelous.

Id. at 17, 20-21, 25. The Star Chamber then not only

burned his book publicly at the pillory, but also cut off

both his ears and threw him into prison. Id.

After hearing such evidence, the Long Parliament

abolished the Star Chamber in 1641 because it had

“undertaken to punish where no law doth warrant,

and to make decrees for things having no such

5

authority, and to inflict heavier punishments than by

any law is warranted.” The Act for the Abolition of the

Court of Star Chamber, July 5, 1641, reprinted in The

Constitutional Documents of the Puritan Revolution,

1625-1660, 179, 181 (Samuel Rawson Gardiner ed.,

3rd ed. rev. 1899). Criminal libel should have

disappeared along with the Star Chamber, as common

law courts at the time did not have jurisdiction over

the crime. Veeder, 3 Colum. L. Rev. at 563. But

whether through accident or historical falsification,

criminal libel managed to survive.

The notion that criminal libel has roots in the

common law comes from Sir Edward Coke, a key

architect of criminal libel law during his tenure as

Attorney General for Elizabeth I. Philip A.

Hamburger, The Development of the Law of Seditious

Libel and the Control of the Press, 37 Stan. L. Rev. 661,

692-693 (1985). But Coke’s grounding was mistaken.

In his comment to “The Case de Libellis Famosis,”

Coke offered a brief treatise on the law of criminal libel

and claimed it could be prosecuted either in the Star

Chamber or at common law. See (1606) 77 Eng. Rep.

250, 250 (Star Chamber); see also Irving Brant,

Seditious Libel: Myth and Reality, 39 N.Y.U. L. Rev. 1,

5 (1964). Yet he did not claim criminal libel had ever

been prosecuted at common law and “he evidently

knew of no such trial.” Brant, 39 N.Y.U. L. Rev. at 4.

Twenty-two years later, in his Third Institute, Coke

purportedly discovered common law origins for

criminal libel: two prosecutions in the King’s Bench in

1334 and 1344. See Sir Edward Coke, The Third Part

of the Institutes of the Laws of England 174 (London,

6

W. Clarke & Sons 1817); Brant, 39 N.Y.U. L. Rev. at 7.

Yet neither was a prosecution for criminal libel; one

was for treason and the other was for contempt of

court. See id. at 7-8.

Later common law judges, “hostile to personal

freedom in an era of universal and savage intolerance,”

readily endorsed Coke’s unsupported assertion about

criminal libel to enable their punishment of

government critics. Brant, 39 N.Y.U. L. Rev. at 11-12.

And they used this authority, rendering the press far

from free:

Writers in the service of rival factions had to brave

the vengeance of their political foes. * * * They

could expect no mercy from the courts, or from

Parliament. Every one was a libeler who outraged

the sentiments of the dominant party. The

Commons, far from vindicating public liberty,

rivalled the Star Chamber in their zeal against

libels.

2 Thomas Erskine May, The Constitutional History of

England Since the Accession of George Third 107

(1863).

Common law judges imported the Star Chamber’s

harsh procedures into their own courts and pushed the

law of criminal libel still further, inspiring outrage

from free speech advocates in England. See

Hamburger, 37 Stan. L. Rev. at 725-753. Lord Chief

Justice Holt, for example, expanded the range of

conduct for which one could be found guilty of criminal

libel, holding that the mere writing of a libel without

intent to publish could be found criminal. Id. at 729-

7

730. Perhaps understanding this holding rested on “no

plausible precedents,” Id. at 731, Holt justified his

expansion with general policy concerns, emphasizing

that “if it Should be no Crime to Write Libels, the

Government & Magistrates, must be Exposed to the

Malice & Discontents of Disaffected persons.” Id. at

732 (quoting Rex v. Bear, British Library, Hardwicke

Papers, Add. M.S. 35981, at 16 (1699)). Consistent

with this sentiment, Holt pressed the doctrine even

further, holding that criticism of the government in

general, rather than criticism of individual

government officials, could be criminal. See Tuchin’s

Case (1704) 90 Eng. Rep. 1133, 1133-1134 (KB);

Hamburger, 27 Stan. L. Rev. at 735. Holt also

drastically restricted the province of the jury by

requiring the alleged libels to be stated only in Latin,

thus leaving the question of whether the writing was

defamatory in the hands of judges. Id. at 737-738.

Thus, Holt took a body of law with a fictional past and

made it more potent still, believing “[i]f men should not

be called to account for possessing the people with an

ill opinion of the Government, no Government can

subsist.” Tuchin’s Case 90 Eng. Rep. at 1133-1134. Not

until the enactment of Fox’s Libel Act in 1792 did the

jury regain authority in libel actions. Hamburger, 27

Stan. L. Rev. at 738; Fox’s Libel Act, 32 Geo. 3 c. 60

(Eng.).

Blackstone endorsed the mythical common law

origins of criminal libel, see 4 William Blackstone,

Commentaries 150-153 (1769); see also Lisby, 9

Commc’n L. & Pol’y at 451, but his claims did not go

unchallenged. Contemporary critics saw that “ ‘our

8

ancient law knew of none but a civil remedy * * *’ and

charged that seditious libel was but ‘the mere

fabrication of the professors [Blackstone] and officers

of the law . . . never ratified by the Parliament, the

people of England, nor any part of the ancient common

law.’” William T. Mayton, Seditious Libel and the Lost

Guarantee of a Freedom of Expression, 84 Colum. L.

Rev. 91, 108 (1984) (second and third emendations in

original ) (quoting Irving Brant, The Bill of Rights: Its

Origin and Meaning 217 (1965)). Armed with a

fictional past, criminal libel, a weapon of a monarchy

intent on silencing political dissidents, made its way to

the American colonies.

The young nation’s judges upheld criminal libel

laws in the face of state and federal free speech

guarantees, causing “considerable controversy” at the

time. John Kelly, Criminal Libel and Free Speech, 6 U.

Kan. L. Rev. 295, 311 (1958). Even though these judges

had witnessed the backlash to the Alien and Sedition

Acts, their training led them to accept two premises—

the first now discredited and the second wholly

mistaken—that together insulated criminal libel from

state and federal constitutional challenge. The first,

that “constitutional provisions were only declaratory

of the English common law,” id. at 311, caused them to

carve out from constitutional prohibition anything the

common law had long accepted. The second, the

English fiction that criminal libel had common law

origins, wrongly placed criminal libel among the carveouts. Together these two beliefs protected criminal

libel. And many American courts today continue to

9

follow Coke’s false mythology rather than the text of

the First Amendment and its original public meaning.

II. Criminal libel is repugnant to the original

understanding of the Free Speech Clause.

A. The backlash to the Alien and Sedition

Acts reveals the Free Speech Clause’s

original public meaning.

In the American colonies, criminal libel was an

“active doctrine.” John Kelly, Criminal Libel and Free

Speech, 6 U. Kan. L. Rev. 295, 305 (1958). Yet as

Americans began to endorse broad individual rights,

dissatisfaction with the doctrine and a monarchy

which embraced it intensified. During the ratification

debates, it became clear the American public believed

the nascent federal government lacked the power to

suppress speech critical of it. See William T. Mayton,

Seditious Libel and the Lost Guarantee of a Freedom

of Expression, 84 Colum. L. Rev. 91, 125-126 (1984).

Yet just nine years after the ratification of a

constitution guaranteeing freedom of speech, the

Adams Administration enacted the Alien and Sedition

Acts in an effort to suppress its press critics and its

Jeffersonian opponents. Id. at 123. The Acts

criminalized writing, publishing, or speaking anything

“false, scandalous and malicious” against the federal

government “with intent to defame * * * or to bring

them * * * into contempt or disrepute * * * or to stir up

sedition within the United States.” Sedition Act, ch.

74, 1 Stat. 596 (1798). The Acts were selective in their

scope, protecting only incumbents, but not Vice

President Jefferson, from criticism, and were

10

“vigorously, but selectively, enforced by the Federalist

Party against its political opposition.” See Mayton, 84

Colum. L. Rev. at 124. Interestingly, because the Acts

permitted truth as a defense, they offered accused

libelers more protection than did the English

doctrines. See Kelly, 6 U. Kan. L. Rev. at 313. But the

American public immediately and vehemently

objected to them, showing that Americans understood

freedom of speech to allow them to criticize

government, and that they would not tolerate even socalled “common law” restrictions on that freedom. See

Gregory C. Lisby, No Place in the Law: The Ignominy

of Criminal Libel in American Jurisprudence, 9

Commc’n L. & Pol’y 433, 459 (2004).

James Madison endorsed this view. In attacking

the Acts’ constitutionality, he argued that criminal

libel was contrary to the constitutional structure.

“[T]he executive magistrates are not held to be

infallible, nor the legislatures to be omnipotent; and

both, being elective are both responsible.” Mayton, 84

Colum. L. Rev. at 126-127 (quoting James Madison,

Report Accompanying the Virginia Resolution,

reprinted in 4 The Debates in the Several State

Conventions on the Adoption of the Federal

Constitution 570 (J. Elliot ed., 1866)). To Madison, it

was “natural and necessary . . . that a different degree

of freedom in the use of the press should here be

contemplated” in the United States as opposed to

England. Id. at 127 As he drafted the First

Amendment, Madison’s words carry particular force.

Id. at 97.

11

B. Criminal libel functions as seditious libel,

enabling public officials to punish their

critics.

Public officials’ use of criminal libel to punish

public criticism functions as seditious libel. See Robert

A. LeFlar, The Social Utility of the Criminal Law of

Defamation, 34 Tex. L. Rev. 984, 1032 (1956). While

many believe criminal libel laws are antiquated and

rare, seventeen states maintain them, see Jane E.

Kirtley & Casey Carmody, Criminal Defamation: Still

“An Instrument of Destruction” in the Age of Fake

News, 8 J. Int’l Media & Ent. L. 163, 166 (2020), and

their use has been “showing a resurgence,” see

Matthew L. Schafer & Jeff Kosseff, Protecting Free

Speech in a Post-Sullivan World, 75 Fed. Commc’n L.J.

1, 33 (2022).

“[C]ases reveal[ ] that in recent years there has

been a tendency to use criminal libel to attain ends

theoretically foreclosed by the absence of seditious

libel.” Lisby, 9 Commc’n L. & Pol’y at 482 (citation

omitted). Public officials who initiate criminal libel

prosecutions are “more likely to target outspoken

individuals” and “are able to utilize criminal

complaints as a means to empower law enforcement

officials to search homes and seize property, which, in

turn, is a way to intimidate and silence critics.” Kirtley

& Carmody, 8 J. Int’l Media & Ent. L. at 167. The

trend in politically motivated prosecutions is “one of

the ‘ins’ prosecuting the ‘outs,’ of the winner

prosecuting the loser. * * * [S]uccessful prosecutions

were, for the most part, for statements of a sort likely

12

to have been unpopular at the time and place they

were made.” LeFlar, 34 Tex. L. Rev. at 1032.

Southern states, for example, used criminal libel

during the Civil Rights Movement to suppress the

speech of segregation opponents. See LeFlar, 34 Tex.

L. Rev. at 1032-1033. One study examining cases from

1990-2002 found that 52.17 percent of threatened or

actual criminal libel prosecutions were “political

prosecutions,” and that another 34.78 percent involved

public figures or matters of public concern. See Lisby,

9 Commc’n L. & Pol’y at 467 (citation omitted); see also

LeFlar, 34 Tex. L. Rev. at 985 (finding that nearly half

of criminal libel prosecutions between 1920 and 1955

could be classified as political prosecutions).

“Fining men or sending them to jail for criticizing

public officials not only jeopardizes the free, open

public discussion which our Constitution guarantees,

but can wholly stifle it.” Garrison v. Louisiana, 379

U.S. 64, 80 (1964) (Black, J., concurring). Indeed,

criminal libel punishes innocent speakers even if the

court dismisses a prosecution. Officials will have likely

compromised their victims’ privacy by searching their

homes, cellphones, and computers and subjected them

to shame by arresting them. See Kirtley & Carmody, 8

J. Int’l Media & Ent. L. at 189 (“[M]any criminal

defamation complaints are dismissed or dropped

before a formal trial on the charges can take place,

though journalists are still subject to searches, arrests,

and imprisonment while the charges are still under

consideration.”). And if a higher court overturns a

criminal conviction, the defendant will have lost much

13

time and money in defense and will have endured the

stigma and stress of a criminal conviction.

Arrests, even if dropped, may have lasting

consequences. A person may have to report the arrest

on applications for jobs, schools, and leases. See, e.g.,

Conducting Background Investigations and Reference

Checks,

Soc’y

for

Hum.

Res.

Mgmt.,

https://perma.cc/78MY-C49F (finding that eightythree percent of employers conduct a criminal history

check during the hiring process); Josh Moody, Ban the

Box: Opening the Door to College for Felons, U.S. News

& World Rep. (Jan. 17, 2020), https://perma.cc/2B6UF38C (finding seventy percent of four-year colleges ask

applicants to report their criminal history);

TransUnion SmartMove, TransUnion Independent

Landlord

Survey

Insights

(Aug.

7,

2017),

https://perma.cc/TS4V-8J4D (“90% [of landlords s]ay

they run credit and criminal background checks on all

applicants.”). Even an acquittal may not automatically

lead to expungement of an arrest record. Arrestees

may have to file additional petitions with the court and

demonstrate “manifest injustice” to have their record

expunged. See Virginia Circuit Court Form CC-1473,

Instructions for Petition for Expungement Filed in a

Circuit

Court

—

Acquittal/Dismissal,

https://perma.cc/W5LL-BJZN. In addition, many

professional licensing applications, such as state bar

applications, require applicants to report arrests and

court proceedings that are expunged from their record.

See, e.g., Lydia Johnson, The Illusion of a Second

Chance: Expunctions Versus the Law School and State

Bar Application Process, 9 Fla. A&M U. L. Rev. 183,

14

186 (2013) (“Many state bar associations will compare

responses to the disclosure question with the

responses given during law school admission. * * *

Both questions generally will request expunged

records.”).

Criminal libel laws, therefore, chill speech even

when prosecutions ultimately fail. See Kirtley &

Carmody, 8 J. Int’l Media & Ent. L. at 193-194; see

also Lisby, 9 Commc’n L. & Pol’y at 482 (“T he impact

of criminal law is ‘felt not only by those convicted,’ but

also by those who are ‘merely prosecuted’ or

‘threatened with prosecution,’ and by ‘countless others’

who cannot ‘accurately judge the boundaries imposed

on freedom or who [are] fearful to take the risk.’” ). The

mere possibility of such consequences threatens

journalists and other advocates, potentially chilling

their free speech and limiting press freedoms. Because

of the power asymmetry between individuals and the

state, moreover, criminal libel laws have a more

powerful chilling effect than do civil libel laws. Private

parties, after all, cannot search the defendant’s home

and belongings, seize them, and arrest the defendant

before trial begins. Id. at 486 (“ T hough the crime of

libel today may indeed be ‘a largely unenforceable

offense,’ that has not stopped those who would use its

sledgehammer effect—or the threat of its use—to try

to control speech, even in the face of eventual failure.”).

15

III. Officials’ use of criminal libel to stifle

political and social criticism continues today.

Statistics cannot fully capture the human impact of

criminal libel prosecutions. A few examples of the

doctrine’s application illustrate just how disruptive

and chilling these prosecutions can be in punishing

Americans for exercising their First Amendment

rights.

1. One of the most renowned criminal libel cases

in American history arose from President Theodore

Roosevelt’s zealous quest for vengeance against

Delevan Smith of the Indianapolis News and Joseph

Pulitzer of The New York World. The pair incensed

Roosevelt by writing articles alleging possible

corruption in the Panama Canal Zone’s acquisition,

suggesting that Roosevelt’s relatives and friends had

profited from the deal. Clyde Peirce, The Panama Libel

Cases, 33 Ind. Mag. Hist. 171, 171-181 (1937).

Roosevelt issued a message to Congress saying he

would have the publishers prosecuted, charging that

the stories “were scurrilous and libelous in character

and false in every particular,” “need[ed] no

investigation whatever,” and were “in fact wholly, and

in form partly, a libel upon the United States

Government.” Theodore Roosevelt, Message to the

Senate and House of Representatives, Dec. 12, 1908, in

H. Journal, 60th Cong., 2d Sess. 72, 72 (1908).

According to President Roosevelt, “It should not be left

to a private citizen to sue Mr. Pulitzer for libel. He

should be prosecuted for libel by the governmental

authorities.” Id.

16

The World responded righteously, condemning the

message for its emotional falsities and charging that

Roosevelt, “in the absence of law, officially proposes to

use all the power of the greatest government on earth

to cripple the freedom of the press on the pretext that

the Government itself has been libelled—and he is the

Government.” Frank Irving Cobb, Lese-Majesty, N.Y.

World, Dec. 16, 1908, reprinted in John L. Heaton,

Cobb of “The World”: A Leader in Liberalism 8, 9

(1924). The World then went further, writing that “[n]o

other living man ever so grossly libelled the United

States as does the President,” as he “besmirches

Congress, bulldozes Judges, assails the integrity of

courts, slanders private citizens, and * * * has shown

himself the most reckless, unscrupulous demagogue

whom the American people ever trusted with such

great power and authority.” Id. at 11.

A grand jury convened shortly thereafter. Peirce,

33 Ind. Mag. Hist. at 183. Because no federal libel

statute existed, the men were indicted under a

“fantastic interpretation” of an 1898 act to “protect the

harbor defenses and fortifications constructed or used

by the United States from malicious injury, and for

other purposes.” Id.; see Assimilative Crimes Act, ch.

576, s. 2, 30 Stat. 717, 717 (1898). Contemporary

American legal journals lambasted Roosevelt for

seeking to revive the doctrine of seditious libel, which

they thought had died with the Alien and Sedition

Acts. See The Action of the Government Against The

New York World as a Revival of the Offense of

Scandalum Magnatum, 68 Cent. L.J. 135, 135 (1909)

(condemning the prosecutions as erroneously based on

17

English understandings of seditious libel that had

been rejected by the American colonies); James M.

Kerr, Letter to the Editor, The World Libel, 68 Cent.

L.J. 253, 254 (1909) (calling the prosecutions “a

dangerous and an unnecessary precedent—a rolling

back of the wheels of time and the development of

society”).

The Act provided that a person who violated state

criminal law on federal land could be tried in federal

court. Assimilative Crimes Act, ch. 576, s. 2, 30 Stat.

717, 717 (1898). On this theory, a newspaper libel

mailed to several states could be subject to prosecution

in every federal district where a post office had

received it. See Michael T. Gibson, The Supreme Court

and Freedom of Expression from 1791 to 1917, 55

Fordham L. Rev. 263, 291 n.177 (1986) (citing United

States v. Press Publ’g Co., 219 U.S. 1, 4-6 (1911)). In

contrast, many states, including New York,

maintained single-suit statutes which permitted only

one criminal action for libel to be filed anywhere in the

country. Id. “Roosevelt’s lawsuit was a clear attempt

to evade New York law and to create a chilling effect

through the threat of multiple prosecutions.” Id.

The government lost both cases. In discharging the

News defendants, the court warned of the dangers of a

government being able to prosecute criminal libel in

almost any federal courtroom in the nation. United

States v. Smith, 173 F. 227, 232 (D. Ind. 1909) (“If the

prosecuting officers have the authority to select the

tribunal, if there be more than one tribunal to select

from, if the government has that power, and can drag

citizens from distant states to the capital of the nation,

18

there to be tried, then * * * this is a strange result of a

revolution where one of the grievances complained of

was the assertion of the right to send parties abroad

for trial.”). Roosevelt later called the judge a “jackass

and a crook.” Peirce, 33 Ind. Mag. Hist. at 185.

The World case reached this Court, which held the

Assimilative Crimes Act provided no cause of action

for state criminal libel. See Press Publ’g Co., 219 U.S.

at 16. This represented a decisive victory for Pulitzer

since New York’s single-suit provision barred the

government from prosecuting the alleged libels in any

other court. Gibson, 55 Fordham L. Rev. at 292.

2. Teddy Roosevelt’s pursuit is no anachronism. In

2015, police arrested Anne King for defamation and

held her in jail for five and a half hours before her

release on bail, even though defamation is not a crime

in Georgia. Eugene Volokh, Criminal Libel

Prosecution—Under a Statute Struck Down 30 Years

Before, The Volokh Conspiracy (Sept. 21, 2018),

https://perma.cc/6W58-AWSS.

King’s

supposed

offense—a Facebook post stating, “[t]hat moment

when everyone in your house has the flu and you ask

your kid’s dad to get them (not me) more Motrin and

Tylenol and he refuses.” Id. The post referred to her

ex-husband, Captain Corey King, an officer in the local

sheriff ’ s department. Id. Anne took the post down to

appease Captain King, but he still felt “disrespected”

and initiated a criminal complaint leading to her

investigation and arrest. Christian Boone, Legal Win

for Ga Woman Arrested After Facebook Post About ExHusband, The Atlanta J.-Const. (Oct. 23, 2019),

https://perma.cc/PGS7-MGDK. Five days later, Anne

19

was taken before a magistrate judge, who told her that

she had “defamed her ex-husband’s character” and

ordered her not to contact him. Id. The magistrate

then threatened to ban her from Facebook and set her

bond at $1,000. Id. Three months later the charges

were dismissed because the Georgia Supreme Court

had struck down Georgia’s criminal defamation

statute in 1982. See Williamson v. State, 295 S.E.2d

305, 306 (Ga. 1982). Despite this, the prosecutor still

defended the charges, claiming that “just because

something is legal does not make it right.” Boone, The

Atlanta J.-Const., https://perma.cc/PGS7-MGDK.

3. Jim Fitts was the editor and publisher of The

Voice, a weekly South Carolina newspaper. He

published a column headlined, “My Vote Is Not for

Sale,”

which

accused

unnamed

legislative

representatives

of “participat[ing]

in

‘corrupt

dealings’” and stealing “during their time in power.”

Fitts v. Kolb, 779 F. Supp. 1502, 1505 (D.S.C. 1991).

Local legislators running for re-election believed the

column damaged their reputations and filed a criminal

complaint against Fitts, who was arrested on two

counts of criminal libel. Id.

Fitts spent eight hours in jail before receiving a

hearing, at which the magistrate set bond at $40,000—

eight times the maximum statutory amount. Fitts, 779

F. Supp. at 1505. Fitts remained in jail for two days,

until his bond was changed to $30,000. Gregory C.

Lisby, No Place in the Law: The Ignominy of Criminal

Libel in American Jurisprudence, 9 Commc’n L. &

Pol’y, 433, 467-468 (2004). As a condition of his release,

the court ordered Fitts not to write or talk about his

20

arrest. Fitts, 779 F. Supp. at 1506. After both

legislators won their primary races a few months later,

a grand jury indicted Fitts on two counts of criminal

libel. Lisby, 9 Commn’c L. & Pol’y at 469. The

legislators, however, then requested that the charges

be dropped. Id. Their attorney said “the charges had

achieved their objective * * *. The purpose behind

them ‘was not so much as punish [Fitts as to serve as]

a deterrent.’” Id. at 470 (second alteration in original).

4. University of Northern Colorado student

Thomas Mink launched a newsletter called The

Howling Pig, intended to, in the words of its fictional

editor, “speak truth to power, obscenities to clergy”

and act as a “forum for the pissed off and

disenfranchised in Northern Colorado, basically

everybody.” Mink v. Knox, 613 F.3d 995, 1008 (10th

Cir. 2010). Mink wrote pieces under the pseudonym

“Junius Puke” and included an altered photo of

professor Junius Peake, meant to “spoof[ ] and

parod[y] Professor Peake.” Mink v. Suthers, 482 F.3d

1244, 1249 (10th Cir 2007) (alterations in original).

Peake filed a police complaint alleging criminal

defamation. Mink, 482 F.3d at 1249. Police searched

Mink’s residence and seized his computer. Officers told

Mink he was in “big trouble” and that “resuming

publication of The Howling Pig would only ‘make

things worse for [him].’” Id. (alteration in original).

After the search, Mink retained a lawyer who was told

by the officer that he “plan[ned] to recommend that

criminal libel charges be filed against Mink.” Id. at

1250. Mink’s attorney argued to the district attorney

that charging his client would violate the First

21

Amendment and requested that Mink’s belongings be

returned. The district attorney never responded. Id.

Mink then filed suit in federal court, seeking

declaratory relief that prosecuting him would violate

the First Amendment. Mink, 482 F.3d at 1250. At a

status hearing, the district attorney told Mink he

would not prosecute him. Id. In large part because of

the negative publicity surrounding the case, Colorado

later repealed its criminal libel laws. Int’l Press Inst.,

Colorado Repeals Criminal Libel Law, ifex (Apr. 20,

2012), https://perma.cc/JC89-FAV8.

5. In 2019, police in New Orleans arrested former

police deputy Jerry Rogers for criminal libel. Faimon

A. Roberts III, Judge Rules Arrest of Agent for

Defamation in Nanette Krentel Death Investigation

Was

Illegal,

Nola.com

(May

16,

2022),

https://perma.cc/Q3AP-2PL6. Rogers’ alleged “crime”

was sending anonymous emails to the sister of a

murder victim, alleging that police had botched the

investigation. Id.

The investigation concerned the murder of Nanette

Krentel, whose body was found in the burned debris of

the home she shared with her husband in July, 2017.

Faimon A. Roberts III, Judge Rules Arrest of Agent for

Defamation in Nanette Krentel Death Investigation

Was

Illegal,

Nola.com

(May

16,

2022),

https://perma.cc/Q3AP-2PL6. At the time, Krentel’s

husband was a fire chief. Id. The Krentel case, which

has yet to be solved, received enormous media scrutiny

and was a contentious issue in the 2019 sheriff ’ s race.

Id. The incumbent, Sheriff Randy Smith, ultimately

22

won that election, but he fielded questions and

accusations about his department’s handling of the

Krentel murder throughout the campaign. Id. Smith’s

deputies traced the emails to Rogers and arrested him

for criminal defamation even though the district

attorney’s office advised them that Louisiana’s

Supreme Court had long held the criminal defamation

statute unconstitutional. Id. The trial court dismissed

the case, id., which is currently on appeal.

6. Authoritarian regimes across the world

frequently use criminal libel to silence critics and

opposition. See, e.g., Michael Beltran, Calls to End

Criminal Libel in Philippines After Critic Arrested, Al

Jazeera (Aug. 11, 2022), https://perma.cc/P3W6-7WR3

(discussing the use of criminal libel laws in the

Philippines to silence opponents and activists); Kathy

Short, Zambian Opposition Leader Charged with

Criminal Libel, Hate Speech, VOA (Nov. 2, 2022),

https://perma.cc/TRX9-5966 (noting the arrest of an

opposition leader in Zambia for criticizing a

government official); Henry Bodkin, Gordon Brown’s

Sister-in-law Who Exposed Malaysia Scandal Fears

International Arrest, The Telegraph (Oct. 2, 2021),

https://perma.cc/PCA2-GU2S (discussing the potential

arrest of a journalist who exposed rampant corruption

in the Malaysian government); Uganda Urged to Free

Two Journalist [sic] Held Since Last Week on Libel

Charges, Reps. Without Borders (June 4, 2021),

https://perma.cc/G26Q-LSHV (noting how Uganda’s

government uses criminal libel to target journalists);

Hannah Beech, Woman Is Sentenced to 43 Years for

Criticizing Thai Monarchy, N.Y. Times (Jan. 19, 2021),

23

https://perma.cc/95TG-R9KZ (discussing how human

rights groups say Thailand is using libel laws to target

critics).

Russia, in particular, has increasingly used

criminal libel laws to silence government critics and

President Putin’s opponents. Russian authorities have

launched a “witch hunt” to “prosecute anti-war

protestors” since Russia invaded Ukraine in 2022.

Russia: Authorities Launch Witch-Hunt to Catch

Anyone Sharing Anti-War Views, Amnesty Int’l (Mar.

30, 2022), https://perma.cc/F7MD-9YUG; see also

Fugitive Russian Father Convicted of Insulting Army

Detained in Belarus, Reuters (Mar. 30, 2023),

https://perma.cc/TF3Q-GKTF

(detailing

how

a

Russian man’s twelve-year-old daughter drawing antiwar pictures at school led authorities to investigate

him, which resulted in the man being convicted of

posting anti-war comments on social media, being

sentenced to two years’ imprisonment, and having his

daughter taken away and placed in a children’s home).

Alexei Navalny, a Kremlin critic and opposition leader

repeatedly targeted by the regime, has been charged

with criminal libel in an attempt to “silence him and

intimidate his supporters” after he criticized a war

propaganda video. Robyn Dixon, Navalny Dismisses

Libel Case Against Him as ‘Nonsense’ in Third Day of

Russian Trial, Wash. Post (Feb. 16, 2021),

https://perma.cc/4RPY-GLRW.

7. Western democracies also demonstrate the

dangers that criminal libel poses to dissent. Italy, for

example, has repeatedly targeted world-renowned

journalist and human rights activist Roberto Saviano

24

with charges of criminal defamation. In 2019, the

government charged him with criminally defaming the

deputy prime minister when he urged investigation

into the official’s possible mafia connections. Ed

Vulliamy, Italy’s PM Meloni Sues Gomorrah Writer in

Libel Drama over Refugee Rescue, The Guardian (Nov.

13, 2022), https://perma.cc/ZY8Y-LE3Q. And in 2022,

the government charged Saviano with criminal

defamation for criticizing Prime Minister Giorgia

Meloni’s policy of not rescuing seaborne migrants in

danger of drowning and of targeting NGOs who did

rescue them. See id. After a migrant baby drowned off

the coast of Italy, Saviano recognized that the

government’s general policy of opposing immigration

was legitimate: “[The government] ha[s] a policy,

legitimately, which opposes * * * reception [of

migrants].” Id. (fourth alteration in original). “[B]ut,”

he added, “surely not in the case of an emergency in

mid-sea.” Id. How, he asked, “is [Meloni’s policy]

thinkable?” Id. If convicted, Saviano faces up to three

years in prison. Id.

In the wake of recent civil unrest in France

opposing unpopular pension reforms, prosecutors have

targeted critics of President Macron with charges of

“insulting the president,” akin to criminal libel. French

Woman Faces Trial, €12,000 Fine for ‘Insulting’

Macron on Facebook, France 24 (Mar. 29, 2023),

https://perma.cc/7WRF-HPEQ.

One

woman

in

northern France was arrested and held in custody for

calling Macron “filth” in a Facebook post about a

television address he gave. Id. She will stand trial in

25

June and faces up to twelve-thousand euros in fines.

Id.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ALAN GURA

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., N.W.

Suite 801

Washington, DC 20036

202.301.3300

agura@ifs.org

APRIL 2023

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

(434) 924-3127

dro@virginia.edu