Bill Kenworthy and Beth Chesterman, Legal Researcher and Contributing Writer
August 10, 2006
“Libel tending to provoke breach of peace.
Any person who publishes a libel of another which may tend to provoke a breach of the peace shall be punished, on conviction, by fine and imprisonment in the county jail, or hard labor for the county; the fine not to exceed in any case $500.00 and the imprisonment or hard labor not to exceed six months.”
Code of Alabama Section 13A-11-160
Arkansas repealed its criminal libel statute in 2005.
“(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.
(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.
(3) Criminal libel is a class 6 felony.”
Colo. Rev. Stat. § 18-13-105 (2005)
Truth is an absolute defense to a libel action. A defendant is not required to prove the truth of the entire statement, only the truth in the substance of the statement. Gomba v. McLaughlin, 504 P.2d 337 (Colo. 1972).
People v. Ryan, 806 P.2d 935 (Colo., 1991), upheld the Colorado statute to the extent that it criminalized statements made by one private individual about another private individual. The court also held that “actual malice” need not be proved in cases between two private individuals.
District of Columbia
The District of Columbia repealed its criminal libel statute in 2001.
Florida has created five separate libel-related crimes:
State v. Chase, 94 Fla. 1071 (1927), held that a prosecution for criminal-libel must establish malice and that truth is a defense to a libel charge when that charge relates to materials published about a public official.
Before a criminal-libel statute can be enforced, it must pass Florida’s procedural requirements. Prosecutors are required to notify a publication within five days of when it is accused of libel. Id. at 836.07. Once notified, if a publication can establish it printed the potentially libelous material in good faith, it has anywhere from ten to forty-five days to publish a correction and retraction depending on how frequently it is published. If a correction is published, the charges will not go forward. Id. at 836.08.
“(a) A person commits the offense of criminal defamation when, without a privilege to do so and with intent to defame another, living or dead, he communicates false matter which tends to blacken the memory of one who is dead or which exposes one who is alive to hatred, contempt, or ridicule, and which tends to provoke a breach of the peace.
(b) A person who violates subsection (a) of this Code section is guilty of a misdemeanor.”
Ga. Code Ann. § 16-11-40 (2005).
Porter v. Kimzey, 309 F.Supp. 993 (N.D. Ga. 1970), aff’d 401 U.S. 985, held that the criminal-libel statute does not violate the First Amendment so long as the provisions in the statute are precise and objective. However, Williamson v. State, 249 Ga. 851 (1982), held that the statute was partially unconstitutional because the language “tends to provoke a breach of peace” is vague and overbroad. Yet in light of the decision, the statute has not been revised and remains on the books.
Libeling either the living or the dead is a crime. Idaho Code § 18-4801 (2005).
“Every person who wilfully, and with a malicious intent to injure another, publishes, or procures to be published, any libel, is punishable by fine not exceeding $5,000, or imprisonment in the county jail not exceeding six (6) months.” Id. at 18-4802.
Truth is a defense, which is to be determined by the jury. Id. at 18-4803.
“An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” Id. at 18-4804.
It is not necessary that anyone actually have read or seen the libel. Id. at 18-4805. Each author, editor and proprietor of libelous material is liable. Id. at 18-4806.
“True and fair” reports of public proceedings are not libelous, except upon a showing of malice. Id. at 18-4807.
Libelous remarks or comments in relation to “true and fair” reports receive no protection. Id. at 18-4808.
It is a misdemeanor to either threaten to libel a person or their family member or solicit money in return for preventing a libel. Id. at 18-4809.
Illinois law makes it a misdemeanor to defame or libel a bank or other financial institution with the intent to damage its solvency; truth is an absolute defense. 720 Ill. Comp. Stat. 300/1 (2005).
Iowa has no criminal-libel statute, but the case Park v. Hill, 380 F. Supp. 2d 1002 (N.D. Iowa 2005), holds that Iowa law defines libel as “malicious publication, expressed either in printing or in writing, or by signs and pictures, tending to injure the reputation of another person or to expose the person to public hatred, contempt, or ridicule, or to injure the person in the maintenance of the person’s business.” Id. at 1015. Moreover, Art. 1, § 7 of the Iowa Constitution provides that truth shall be a defense in all criminal-libel actions.
State v. Heacock, 76 N.W. 654 (Iowa 1898), establishes that criminal prosecutions for libel have occurred in Iowa. It does not give the elements for criminal libel in the state, but the indictment in the case charges “that the article was maliciously and willfully inserted in the [newspaper] by the defendant, and that it was willfully and maliciously circulated and distributed by him, ‘for the purpose of defaming, injuring, and vilifying the person and character of [the libeled individual] and others, and the same tended to provoke the said [libeled individual] and others to wrath, and to expose them to public hatred, contempt, and ridicule, and to deprive them of the benefits of public confidence and social intercourse.’” Id. at 655.
“(a) Criminal defamation is communicating to a person orally, in writing, or by any other means, information, knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.
(b) In all prosecutions under this section the truth of the information communicated shall be admitted as evidence. It shall be a defense to a charge of criminal defamation if it is found that such matter was true.
(c) Criminal defamation is a class A nonperson misdemeanor.” Kan. Stat. Ann § 21-4004 (2005).
The court in Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995), found the statute required actual malice in matters of public concern and further held that the statute was neither vague nor overbroad.
“Court may bring criminal action for libel or slander — Punish resistance to judicial order.
Nothing in KRS 432.230 to 432.270 shall prevent any court or judge from proceeding against any person writing or publishing a libel or slanderous words concerning such court or judge in relation to his judicial conduct in court by indictment, nor prevent any court from punishing any person guilty of a contempt in resisting or disobeying any judicial order or process issued by or under the authority of such court.”
Kentucky Rev. Stat. Ann. 432.280
“Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:
(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or
(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or
(3) To injure any person, corporation, or association of persons in his or their business or occupation.
Whoever commits the crime of defamation shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.”
La. Rev. Stat. § 14:47 (2005)
Garrison v. Louisiana, 379 U.S. 64 (1964), holds that the Louisiana statute is unconstitutional so far as it punishes true statements about public officials that are uttered with malicious purpose. Additionally, the statute is unconstitutional in respect to its failure to differentiate whether false statements against public officials were made with malice, reckless disregard of truth or falsity, or in a reasonable belief of the truth of the statement. However, Louisiana’s statute is not unconstitutional per se as long as any actual prosecutions under it follow the constraints laid out in Garrison. Snyder v. Ware, 314 F. Supp. 335 (W.D. La. 1970), aff’d 397 U.S. 589. The Louisiana statute still remains on the books.
“Libel of Groups of Persons Because of Race, Color or Religion.
Whoever publishes any false written or printed material with intent to maliciously promote hatred of any group of persons in the commonwealth because of race, color or religion shall be guilty of libel and shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both. The defendant may prove in defense that the publication was privileged or was not malicious. Prosecutions under this section shall be instituted only by the attorney general or by the district attorney for the district in which the alleged libel was published.” Ann. Laws Mass. § 98C
“Justification in Cases of Libel.
The defendant in a prosecution for writing or publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous, and the truth shall be a justification, unless actual malice is proved.” Ann. Laws Mass. § 8
Michigan law makes it a felony to “willfully and maliciously” libel a bank or other investment institution. Mich. Comp. Law § 750.97 (2005). It also is a misdemeanor to falsely accuse another of a crime or “particular conduct,” such as lack of chastity. Id. at 750.370. The law also makes it a misdemeanor to make a false or malicious statement regarding the financial condition of an insurer. Id. at 750.389
Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.
Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.”
Minn. Stat. 609.765
Also: Minn. Stat. 609.77 makes it a misdemeanor to pass false information to a media source with the intention that it will be published and defame another individual.
Any person who shall be convicted of writing or publishing any libel, shall be fined in such sum or imprisoned in the county jail for such term as the court, in its discretion, may adjudge, having regard to the nature and enormity of the offense, or be punished by both such fine and imprisonment.” Miss. Code Ann.§ 97-3-55
“Libel; truth as defense
In every criminal prosecution for libel it shall be lawful for the defendant, upon the trial, to give in evidence the truth of the matter written or published, and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the defendant shall be acquitted.” Miss. Code Ann. § 97-3-57
Boydstun v. State, 249 So. 2d 411 (Miss. 1971). The Mississippi Supreme Court noted that the criminal-libel statute makes it a crime to publish “any libel” yet does not define libel. “No Mississippi case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense.” Despite this decision, the libel statutes remain on the books.
(1) Defamatory matter is anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person’s or its business or occupation.
(2) Whoever, with knowledge of its defamatory character, orally, in writing, or by any other means, including by electronic communication, as defined in 45-8-213, communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation and may be sentenced to imprisonment for not more than 6 months in the county jail or a fine of not more than $500, or both.
State v. Helfrich, 277 Mont. 452 (Mont. 1996). Declared statute 45-8-212 unconstitutionally overbroad: “It violates the First and Fourteenth Amendments of the United States Constitution as interpreted by the United States Supreme Court in New York Times and Garrison and Article II, § 7 of the Montana Constitution because, on its face, the statute prohibits truthful criticism when not communicated for good motives and justifiable ends.” However, 45-8-212 is still on the books.
Nevada makes it a “gross misdemeanor” to libel the living through publication of material that would expose them to ridicule, or to “blacken the memory of the dead.” Nev. Rev. Stat. § 200.510. Similarly, it is a misdemeanor to furnish libelous information to a newspaper or other publication. Id. at 200.550. There is no “intent” requirement, but there is a defense if the information was true and published “for good motive and justifiable ends.” Id. at 200.510
“Any method by which matter charged as libelous may be communicated to another shall be deemed a publication thereof.” Id. at 200.520.
Editors and proprietors of published material may be held liable, but an editor or proprietor may escape guilt by proving “that the matter complained of was published without his knowledge or fault and against his wishes by another who had no authority from him to make such publication, and was retracted by him as soon as known with an equal degree of publicity.” Id. at 200.530.
Nevada law makes it a “gross misdemeanor” either to threaten to libel somebody, or to solicit personal gain in return for not libeling somebody. Id. at 200.560.
Note: In an unpublished order, federal Judge Johnnie Rawlinson approved an agreement between the Nevada Press Association and the Nevada Attorney General that the statutes would not be enforced because they were unconstitutional. In Nevada Press Association v. del Papa, CV-S-98-00991-JBR (1998), the final judgment stated that the statutes were unconstitutional because they were overbroad and punished individuals for the publication of truthful statements.
“I. 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.
II. As used in this section “public” includes any professional or social group of which the victim of the defamation is a member.” NH Rev. Stat. Ann 644:11 (2005)
In Keeton v. Hustler Magazine Inc., 465 U.S. 770 (1984), the U.S. Supreme Court held that it was constitutional for residents and nonresidents of New Hampshire to bring a suit under the statute.
“Libel consists of making, writing, publishing, selling or circulating without good motives and justifiable ends, any false and malicious statement affecting the reputation, business or occupation of another, or which exposes another to hatred, contempt, ridicule, degradation or disgrace.
Whoever commits libel is guilty of a misdemeanor.” NM Stat. Ann. § 30-11-1 (2005)
State v. Powell, 839 P.2d 139 (NM Ct. App. 1992), held that New Mexico’s criminal-libel statute is unconstitutional as applied to public statements involving matters of public concern. Under the First Amendment, a false defamatory public statement which involves matters of public concern is subject to a criminal-libel statute only if the statement is made with actual malice. New Mexico’s statute only requires a “malice” standard and therefore the court held the statute could not be applied to cases such as those involving public statements pertaining to matters of public concern because they required an actual malice standard.
“If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a Class 2 misdemeanor.” NC Gen. Stat § 14-47 (1993)
“1. A person is guilty of a class A misdemeanor if he willfully publishes defamatory matter or knowingly procures such publication or in any way knowingly aids or assists in the same being done.
2. It is a defense to a prosecution under this section that:
a. The matter alleged to be defamatory is true; or
b. The matter alleged to be defamatory was contained in a privileged communication.” N.D. Cent. Code § 12.1-15-01(2) (2005)
Id. at (3) requires that the accused individual must have published the material with either actual malice or reckless disregard for the truth.
Generally, owners, licensees, and operators at television and radio stations cannot be held liable for defamatory statements about candidates for public office made during a broadcast from their station. Ohio Rev. Stat. § 2739.03 (2005)
If a broadcast station circulates a false statement, rumor or allegation about a civil society organization, business, or public official or candidate for public office, the station must run any rebutting statement received from the individual or organization that was the subject of the broadcast. See Id. at (C)-(G); see Id. at 2739.13-16 (2005) (establishing a similar duty for newspapers).
A newspaper may not threaten a public official with publication of a defamatory story for the purpose of influencing the official for or against any proposed law, ordinance, or legislative act. Id. at 2739.18.
The punishment for these offenses is a fine of between $500 and $1,000, with some of the more serious allegations also punishable by up to a year in jail. Id. at 2739.99
The state has promulgated four libel-related crimes:
A person who threatens to make a libel is presumed to have the same “intent” (mens rea) as one who actually does make a libel. Id. at 778.
The truth of information published with “good motives” and “justifiable ends” is a defense to libel. Id. at 774. An individual will not be liable for a statement if the statement is privileged information that is published as part of a legislative or judicial process, as part of one’s official duties, or as a “fair and true” report of the former. In the case of unprivileged information, publication gives rise to a rebuttable presumption of malice. Id. at 772. Moreover, even when a newspaper makes a “fair and true” report of one of the above proceedings, if it does so with malicious intent, it can still be convicted of libel — although malice will not be presumed from publication. Id. at 777.
The Oklahoma statute contains the language “blackens the name of the dead,” which alludes to a cause of action for a deceased individual or their relatives. However, in Turner v. Crime Detective, 34 F.Supp. 8 (N.D. Okla. 1940), the court held that a common law recovery for libel was not available to a deceased individual nor could the deceased individual’s estate or relatives recover for the libel. The Oklahoma statute does not include language that expressly changes the common law requirement that the individual be living nor does the statute language expressly create a right for a deceased individual or their relatives to recover for the libel. Therefore, the court held that in Oklahoma an action for libel cannot be brought on behalf of a deceased individual. Nonetheless, the statute language has remained unchanged.
“Slander and libel.
Any person who shall with malicious intent originate, utter, circulate or publish any false statement or matter concerning another the effect of which shall tend to injure such person in his character or reputation shall be guilty of a misdemeanor and, upon conviction therefor, be subject to punishment by fine not to exceed five thousand dollars or by imprisonment for a term not exceeding one year, or by both fine and imprisonment, in the discretion of the court; provided, that nothing herein shall be construed to abridge any right any person may have by way of an action for damages for libel or slander under the existing law.”
South Carolina Code Annotated § 16-7-150
Fitts v. Kolb, 779 F. Supp. 1502, 1513 (S.C. 1991). “The plaintiffs contend that the criminal libel statute does not pass constitutional muster because it is both overbroad and vague. The court agrees in both respects.” Despite this ruling, the South Carolina statute remains on the books.
South Dakota has no criminal-libel statute but SD Codified Laws § 20 outlines the definition of defamation and provides that “every person is obligated to refrain from infringing on the rights of others not to be defamed.” SD Codified Laws § 20-11-1. Although SD Codified Laws § 20 does not expressly make available a criminal prosecution for libel, Article 6 § 5 of the South Dakota Constitution states that truth is a defense in criminal-libel cases. Additionally, a court has held that it is possible that in South Dakota criminal-libel cases, the defendant may not waive his right to a jury trial. State v. Thwing, 172 N.W.2d 277 (S.D. 1969); see SD Const. Art. 6, § 5.
Utah repealed its criminal-libel statutes in 2007 (S.B. 86, effective April 30, 2007), but a similar criminal-defamation statute remains on the books. The libel statute was previously found unconstitutional in I.M.L. v. State, 61 P.3d 1038, 1048 (Utah, 2002).
The criminal-defamation statute is codified at Utah Code Ann. § 76-9-404:
(1) A person is guilty of criminal defamation if he knowingly 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.
(2) Criminal defamation is a class B misdemeanor.
“Any person who knowingly and willfully states, delivers or transmits by any means whatever to any publisher, or employee of a publisher, of any newspaper, magazine, or other publication or to any owner, or employee of an owner, of any radio station, television station, news service or cable service, any false and untrue statement, knowing the same to be false or untrue, concerning any person or corporation, with intent that the same shall be published, broadcast or otherwise disseminated, shall be guilty of a Class 3 misdemeanor.” VA Code Ann. § 18.2-209. Speaking or publishing imputations of a woman’s want of chastity is also a Class 3 misdemeanor; if the defendant disproves malice, he will lessen the penalty he will receive if convicted, but lack of malice is not a defense to the crime. Id. at 18.2-417
The Virgin Islands has made libel a crime punishable by a fine not to exceed $500, a year in jail, or both. VI Code Ann. tit. 14, § 59-1172 (2005). Threatening to make libelous statement — or offering not to publish such a statement in exchange for money or a favor — warrants a fine not to exceed $1000, up to five years in jail, or both. Id. at 1179
“Injurious publications” are presumed to have been malicious. Id. at 1173. One accused of libel “shall be acquitted” if it “appears to the court” that the supposedly libelous material was “published for good motives and justifiable ends.” Id. at 1174. Guilt for libel extends to the owners, publishers, and editors of the book, newspaper or other publication in which the libel was printed. They may escape punishment by showing that the material was printed without their knowledge, against their wishes and by another without authority from them and that they objected to the material as soon as it was published. Id. at 1176
“True and fair” reports of public proceedings are not libelous. Id. at 1177. A communication between persons will most likely not be considered libelous if there are reasonable grounds to suppose that there was not a malicious intent behind the communication. Id. at 1178
Washington repealed its criminal-libel statutes in 2009 (S.B. 5147, effective July 26, 2009). The statutes were previously found unconstitutional inParmelee v. O’Neel, No. 35652-0-II (Wash. Ct. App. June 19, 2008).
“(1) Whoever with intent to defame communicates any defamatory matter to a third person without the consent of the person defamed is guilty of a Class A misdemeanor.
(2) Defamatory matter is anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other’s business or occupation.
(3) This section does not apply if the defamatory matter was true and was communicated with good motives and for justifiable ends or if the communication was otherwise privileged.
(4) No person shall be convicted on the basis of an oral communication of defamatory matter except upon the testimony of 2 other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or no contest.” Wis. Stat. Ann 942.01 (2005)
“Giving false information for publication” is also a Class A Misdemeanor. Id. at 942.03