This leaves only 13 states -- Florida, Idaho, Kansas, Louisiana, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Utah, Virginia and Wisconsin -- with criminal defamation laws on the books that remain viable in some circumstances, at least in theory. Several states' criminal libel laws have been held unconstitutional in recent years, including Colorado (repealed in 2012); Washington (repealed in 2009 after a 2008 court ruling finding the statute “facially unconstitutional for overbreath and vagueness.”), Utah (one provision repealed in 2007, although another remains); New Mexico (2006 trial court ruling); Puerto Rico (repealed 2005).
Criminal defamation is an archaic concept, as the U.S. Supreme Court recognized in 1964:
Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that “. . . under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation.”Garrison v. Louisiana, 379 U.S. 64, 69 (1964), quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 924 (1963).
Yet in Garrison the Court did not hold that criminal libel was unconstitutional per se, but that it could not be applied to statements about public officials without a finding that the defendant speaker had acted with actual malice: that s/he knew the statement was untrue, or that s/he made the statement with "reckless disregard" for whether it is was true or not.
Over the years, most states have repealed their criminal defamation laws, or courts have struck them down under broader interpretations of the First Amendment than the court used in Garrison. But in the states where the law remained, there actually appears to have been an uptick in prosecutions in recent years, as prosecutors seeking to penalize harmful behavior online invoked the old provisions. For example, a study of criminal defamation prosecutions in Wisconsin found that the number of cases almost doubled from 1999 through 2007, compared from 1991 through 1998, due to cases stemming from Internet content.
The Minnesota case also came from the Internet. Defendant Timothy Robert Turner posted a fake ad in the Craigslist personals section using the names and cell phone numbers of his girlfriend and the girlfriend's minor daughter, which resulted in them receiving explicit phone calls and e-mails from men seeking to have sex with them. Turner admitted posting the ad, but denied that it constituted criminal defamation, and also challenged the constitutionality of the criminal libel statute. The trial court rejected this argument, and found him guilty.
On appeal Turner resumed the constitutionality argument. The state actually conceded that the statute was overbroad, but argued that it could be read and applied narrowly. But the court concluded that the statute is overbroad "because it does not exempt truthful statements from prosecution and, as applied to matters of public concern, does not require the state to prove 'actual malice' before imposing liability" (slip op. at 9), and that it could not be read narrowly.
"[A]lthough appellant’s conduct was reprehensible and defamatory," the court held, "we cannot uphold his conviction under an unconstitutional statute" (slip op. at 13).
Most of the remaining criminal libel statutes have similar problems, and should be similarly challenged in court. If prosecutors continue to cite these laws in their attempts to punish internet miscreants, there are likely to be more decisions striking down these laws in the future.