Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.
Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.
Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.
JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.
This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.
Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.
Ruling on Motion to Dismiss:
News Accounts and Commentary: