Exeter man arrested for 'dirty cop' post takes defamation challenge to U.S. Supreme Court

EXETER — A local man, who was criminally charged for posting an online comment stating Exeter's former police chief "covered up for a dirty cop," is taking his fight to overturn criminal defamation laws to the U.S. Supreme Court.

The American Civil Liberties Union filed the petition Thursday on behalf of Exeter resident Robert Frese with the country's highest court. The ACLU is arguing criminal defamation laws — which are on the books in more than a dozen states, including New Hampshire — violate the First Amendment as applied to speech criticizing public officials.

The petition also argues New Hampshire’s criminal libel law — and laws like it across the nation — are unconstitutionally vague because they give the public little guidance on what may constitute a crime, and give law enforcement far too much discretion in deciding whom to prosecute.

"We think this a good opportunity to get the Supreme Court to address the constitutionality of criminal defamation laws, which it hasn't done in nearly 60 years," said Brian Hauss, senior staff attorney at the national ACLU Speech, Privacy and Technology Project. "We have long maintained criminal defamation laws are categorically unconstitutional."

The petition comes after the U.S. Court of Appeals for the First Circuit rejected Frese's claims the New Hampshire criminal libel law was not constitutional by affirming a prior judge's decision to dismiss the case. In its decision, the three-judge panel reiterated they are bound by the Supreme Court's prior guidance under Garrison v. Louisiana.

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What led to U.S. Supreme Court filing

While the Supreme Court has upheld that false speech made with "actual malice" is a crime under the Garrison v. Louisiana case in 1964, the ACLU believes "the time has come to revisit that decision."

"There has been a lot of water under the bridge since then," Hauss said. "In Garrison, they came very close to categorically barring criminal defamation prosecutions, but they didn't go all the way."

In Garrison, the Supreme Court overturned the criminal defamation conviction of Louisiana district attorney Jim Garrison, who was charged with libel after blaming a large backlog of criminal cases on inefficient and lazy judges.

Hauss said to overturn the conviction, the court used the standard it set in the New York Times Company v. Sullivan case for civil defamation.

"In some ways, it was narrow ruling," Hauss said. "They didn't have to go and categorically declare criminal defamation prosecution cases are unconstitutional… I think what we are really asking the court here is to finish the project that it began in Garrison and say when it comes to defamation, the appropriate remedy particularly for public officials is a civil suit for damages."

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Hauss said the ACLU took on Frese's case because it "highlighted the danger with the laws."

The ACLU has long argued criminal defamation laws are disproportionately used against people who criticize public officials or government employees.

"This was a very clear case where someone was inappropriately prosecuted for criticizing an indisputable public official," Hauss said.

Frese was arrested in May 2018 and charged with criminal defamation of character after posting online comments on a Seacoastonline story about a retiring Exeter police officer. Frese wrote, without offering evidence, that the officer was "the dirtiest, most corrupt cop I had ever had the displeasure of knowing," and that “Chief Shupe covered up for a dirty cop.” He was referring to William Shupe, who retired as chief the next year.

The misdemeanor criminal defamation charge, which is rarely prosecuted in the state, was eventually dropped by Exeter police after the attorney general intervened in the case. The attorney general issued an opinion that the department didn't have probable cause to arrest Frese because there was no evidence he knew his statements were false. Frese had prior run-ins with police, including several arrests, and stated he believed what he said.

The ACLU filed the civil suit challenging the law on behalf of Frese because Frese feared that he would be arrested again for speaking his mind in the future. He was previously convicted of criminal defamation in 2012, when he accused a life coach in Hudson of distributing heroin among other things on the website Craigslist.

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Is NH defamation law unconstitutional?

In the petition filed with the U.S. Supreme Court, the ACLU reiterates its claims that the New Hampshire criminal defamation law is unconstitutionally vague because different persons may have "different standards for determining what is and is not defamatory" and that it's discriminatorily enforced.

The argument was rejected by the U.S. Court of Appeals, who found the NH statute "clearly defines and delimits its scope" and "provides adequate guidelines for enforcement.”

Under New Hampshire’s criminal defamation statute, “A person is guilty of a Class B misdemeanor if he purposely communicates to any person, orally, or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.”

A person found guilty of the charge faces a fine of up to $1,200.

Hauss said they were disappointed in the lower court's ruling and that is another reason why they filed the petition. He said the problem with the New Hampshire law is it encourages arbitrary or selective enforcement.

"If criminal defamation laws were robustly enforced, the court dockets would be clogged with these things," he said. "Every civil libel could be criminally prosecuted and of course, that is not at all what we see. We see very sporadic prosecutions, and as in Bob's case, a good number of these prosecutions involve people who are criticizing law enforcement officers for one reason or another."

Hauss said because the NH's law is a misdemeanor, it's usually the police departments who end up prosecuting the cases, and the defendant doesn't have a right to counsel if they are indigent, or a jury trial.

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The next step

Hauss said the state has 30 days to file a response to its petition with the U.S. Supreme Court, which can take longer if extensions are granted.

From there, it will be up to the court whether to accept the case or not.

According to the U.S. Supreme Court rules, four of the nine justices must vote to accept a case.

"We should know basically by early summer whether the court is going to take this case," Hauss said.

Hauss said the case is important because criminal libel on the books, even though rarely used, essentially authorizes government officials to prosecute speech criticizing themselves.

"Fortunately, there hasn't been widespread prosecutions in this country for criminal defamation since the Sedition Act," Hauss said. "That's not to say they could never be."

The Sedition Act of 1798 is when Federalists initiated scores of criminal defamation prosecutions to silence newspapers aligned with their opponents. James Madison said at the time libel prosecutions are inconsistent with the freedom of the press and America’s republican form of government.

"Madison rightfully said our Democratic system depends on people being able to engage in robust public debate about the qualifications of public officials," Hauss said. "They should not have to worry about criminal charges being filed against them because their criticisms are a little too sharp."

This article originally appeared on Portsmouth Herald: NH man arrested for 'dirty cop' post takes defamation case to SCOTUS