Passage of the either bill would run against the general trend of state legislatures repealing archaic statutes making defamation a crime, or courts holding these laws unconstitutional. In 2015 alone, Georgia repealed its law and courts in Montana and Minnesota both held their laws unconstitutional. Other states with that have repealed their criminal libel laws in recent years are Colorado (repealed in 2012); Washington (repealed in 2009 after a 2008 court ruling finding the statute "facially unconstitutional"), Utah (one provision repealed in 2007, although another remains); New Mexico (2006 trial court ruling); and Puerto Rico (repealed 2005).
The Alabama bills would add an "actual malice" requirement to the state's criminal libel law, Ala. Code sec. 13A-11-163, which was held unconstitutional in Ivey v. State, , because the law does not require "actual malice" -- knowledge that a statement was untrue or reckless disregard for weather it was true or not -- which the (Ala. 2001)U.S. Supreme Court held is required for a criminal libel statute to prosecute a statement about a public official or public figure.
The bills are apparently a response to a case in which a high school student was arrested for sending in e-mails and posting to social media a television station's online story about coach accused of having sex with students, but with the photo of the accused coach replaced with the photo of a history teacher in the school. But the Limestone County prosecutor dropped the charges three days later, explaining in a statement that
That statute had been found unconstitutional by the Alabama Supreme Court in Ivey v. State in the context of a false statement about a public official. The Alabama Supreme Court struck the statute down in the context of public officials, and declined to expressly save the statute in cases of private individuals.He also noted that while a common guide to Alabama's laws suggested that the criminal libel statute could be used for statements involving private figures, in his opinion the statute "does not provide a workable framework to prosecute a private individual for defamation without the possible infringement upon that individual’s First Amendment freedom of speech."
The prosecutor said that the Legislature should amend the law to include "actual malice" as a requirement of the crime, so that it could be used to prosecute speakers of defamatory statements against private individuals. And he said that he had contacted local state legislators asking them to do so.
The House bill is sponsored by Representatives Danny Crawford, Mac McCutcheon, Lynn Greer, Jack W. Williams, Margie Wilcox, Will Ainsworth, David Sessions and Danny Garrett; the Senate version is sponsored by Senators Tim Melson and Arthur Orr. Many of these legislators represent portions of Limestone County, where the case occurred.
Attempted and actual criminal libel prosecutions in the states that still allow them -- because their laws have been amended or interpreted to include the actual malice requirement -- may be rising because of the internet. 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.
But the concept of a criminal -- as opposed to civil -- penalty for libel is simply archaic. Even though the U.S. Supreme Court declined to hold criminal libel entirely unconstitutional when it considered the issue in 1964, it did recognize the archaic nature of criminal libel law:
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).
While the teacher who was the victim of the fake story has certainly suffered some harm, our respect for freedom of speech requires that the prank should not considered be a crime. The time for criminal libel statutes has passed. Instead of amending the law in order to save it, the Alabama legislature should be working to repeal it.
Thanks to commenter Chase N. Allpots for the heads-up on the bills.