A federal appeals court rules that NH’s criminal libel law is constitutional

The 1735 trial of John Peter Zenger

If we know anything about libel law, then we know that false, defamatory speech is not a crime. It’s a civil matter, to be worked out between the two parties in court. Right? Well … hold on.

On Tuesday, the U.S. Court of Appeals for the First Circuit ruled that New Hampshire’s criminal-libel statute passes constitutional muster. The case was especially pernicious because the defendant, Robert Frese, was charged with claiming that the police chief in his town of Exeter was a coward who had “covered up for a dirty cop.” That statement may be entirely false; but the idea that someone could be charged with a misdemeanor for criticizing the police is chilling indeed.

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In 2019, I gave the Exeter Police Department a New England Muzzle Award for charging Frese with a misdemeanor, writing that the New Hampshire law amounted to “seditious libel, making it a crime to criticize the government.” It’s something we thought had faded away with John Peter Zenger, a New York printer who was acquitted nearly 300 years ago.

But Judge Jeffrey Howard, noting that the Supreme Court’s landmark 1964 Times v. Sullivan decision does not protect knowingly false, defamatory speech directed at public officials, ruled that Frese did not have a case. Howard wrote:

Mindful of the Supreme Court’s guidance that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]” we conclude that Frese’s allegations fall short of asserting viable constitutional claims.

No one would be surprised that Howard would assert that Times v. Sullivan doesn’t protect knowingly false, defamatory statements. But his assertion that such statements may form the basis of a criminal case rather than a civil lawsuit is worrisome — especially at a time when there are rumbles coming out of the Supreme Court that it may be inclined to dial back libel protections, as I wrote for GBH News last year.

Judge Howard and his colleagues had a chance to stand up for freedom of speech. Instead, they chose something else.

The NH political-ad story is getting weirder and weirder

Photo (cc) 2008 by Andrea Maria Cannata

The saga of Debra Paul, the New Hampshire newspaper owner charged with a crime for publishing political ads without the required disclosure, is getting weirder and weirder.

Friend of Media Nation Aaron Read has been doing some digging, and I’m sharing some of what he posted on Facebook. It turns out that in addition to owning the Londonderry Times and another paper, Paul is a member of the town council. In February 2021, her fellow councilors complained about an editorial she published, saying she had engaged in “bullying” for writing, “Are you frustrated that nobody at town hall is listening to you? Do you feel that your town or school officials have an excuse for everything or justify decisions you don’t agree with?”

According to Julie Huss of The Eagle-Tribune, Paul replied that the editorial ran in both of her papers covering four towns, and that her words were not specifically directed at her colleagues in Londonderry.

The Daily Caller, a right-wing outlet founded by Tucker Carlson, picked up on the story a couple of days ago. Arjun Singh, citing the Derry News, reports that two of the candidates whose ads were not properly labeled were running for the school committee on so-called parents’-rights platforms. Singh also writes: “The Attorney General’s office began investigating Paul after a tip from Laura Morin, a mental health counselor with the Greater Nashua Mental Health Council, which works with schools near the Derry area, according to the arrest warrant.”

Morin appears to be a “dear friend” of the town clerk, Sherry Farrell. And in March 2018, Paul’s paper published a story about illegal political lawn signs in Londonderry that had been investigated by the state attorney general’s office. Farrell’s signs were among those targeted for lacking proper disclosure information.

It all sounds pretty incestuous. And yes, it is a massive conflict of interest for Paul to publish a paper in the same town where she’s serving as an elected official. But that doesn’t change the fact that Attorney General John Formella really needs to find something better to do with his time. It would be one thing if these political communications were aimed at deceiving people, but they were not. No harm was done. Yet Paul faces at least the theoretical possibility that she could be hit with a heavy fine and a prison term.

Earlier:

Here’s the arrest warrant in the NH illegal-advertising case

Here is the arrest warrant in the Debra Paul illegal-advertising case. It doesn’t change my understanding of the facts, but the details and the context are interesting.

Earlier:

A NH newspaper publisher is arrested and charged with running illegal political ads

In a bizarre case that raises important First Amendment issues, a New Hampshire newspaper owner has been arrested and charged with publishing political ads that the state attorney general’s office claims failed to comply with disclosure laws.

According to Nancy West of InDepthNH, the ads failed to include the words “Political Advertisement,” which is a violation of state law. The publisher, Debra Paul of the Londonderry Times, faces six misdemeanor counts. If she’s found guilty, she could be fined $2,000 or even sentenced to prison for a year. “I would like to think the attorney general’s office has more important matters to deal with than to send press releases out on misdemeanors such as this,” Paul said, according to West. “With multiple unsolved homicides over the past year, this seems a bit absurd.”

According to a statement issued by the office of Attorney General John Formella, the charges involve incidents dating back as far as 2019:

Ms. Paul, publisher of the Londonderry Times newspaper, was previously investigated and warned against such conduct on two prior occasions by the Attorney General’s Office Election Law Unit. Those instances ended with formal letters being issued to her in 2019 and 2021. A ‘final warning’ letter issued by the Election Law Unit in September of 2021 warned Ms. Paul that all political advertising must be properly labeled as such in her publication.

Paid advertising — even political advertising — is a form of commercial speech, and thus doesn’t carry with it the same protections as other forms of speech. Nevertheless, the case against Paul seems absurd. I flipped through the most recent PDF edition of the Londonderry Times and found a couple of political ads, including the one I’ve embedded here. It’s properly labeled; I’m sure at this point Paul would just as soon avoid a seventh count. But if it didn’t say “Political Advertisement,” would you think it’s anything other than a political ad? Of course not.

At the very least, New Hampshire law ought to recognize whether there was an intent to deceive. There is obviously no deceptive intent here. And Formella has placed himself in the running for a 2023 New England Muzzle Award. Paul is scheduled to be arraigned on Oct. 19. Not only should the judge immediately dismiss the charges against Paul, but they should also sanction the attorney general.

N.H.’s retiring secretary of state won a Muzzle Award and was an early Big Lie enabler

Photo (cc) 2016 by Charlene McBride

Bill Gardner, who announced Monday that he won’t seek re-election as New Hampshire’s secretary of state after nearly a half-century in office, won a New England Muzzle Award from GBH News in 2017 for his obsession with cracking down on “ballot selfies.” Here’s the item:

Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.

In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?

A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.

Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.

Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.

The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”

Gardner, nominally a Democrat, also came under fire for refusing to step down from President Donald Trump’s bogus voting commission after the chair of that commission wrote a piece for the right-wing website Breitbart falsely claiming that Trump had actually won New Hampshire in 2016.

Don’t let the door hit you on the way out, Mr. Secretary.

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N.H. legislation would make it harder for the public to access police records

A bill filed in the New Hampshire legislature would make it more difficult for the public to access police records, reversing a recent decision by the state’s supreme court that requires greater openness. The New England First Amendment Coalition reports:

Senate Bill 39 intends to exempt police personnel files, internal investigations and other law enforcement records from the New Hampshire Right-to-Know Law.

If made law, the bill would overturn a New Hampshire Supreme Court decision — Seacoast Newspapers, Inc. v. City of Portsmouth — that ruled such documents were not categorically exempt under the public records statute.

Biking in southern N.H.

We had a great time with friends Saturday on the rail trail in Salem, Windham and Derry, New Hampshire — 18 miles total. There was even a nice little outdoor lunch place along the way.

Talk about this post on Facebook.

The hazards of granting anonymity, Part Infinity

fnc-20130311-scottbrownI’ll leave it to my friend John Carroll to analyze the dust-up between the Boston Globe and the Boston Herald over whether former senator Scott Brown is or isn’t still working for Fox News. (Short answer: he is.) No doubt that’s coming later today.

So just a quick observation. On Wednesday the Globe’s Joshua Miller quoted an unnamed source at Fox who told him that Brown was “out of contract,” thus fueling speculation that Brown was about to jump into New Hampshire’s U.S. Senate race. It turns out, according to the Herald’s Hillary Chabot and Miller’s follow-up report, that Brown was merely between contracts, and that he’s now re-upped.

If I were Miller or an editor at the Globe, I would love to be able to point to a named source at Fox for passing along information that may have been technically accurate but was not actually true. But they can’t, and that’s one of the hazards of granting anonymity.

It’s especially dangerous with Fox. According to NPR media reporter David Folkenflik’s book “Murdoch’s World,” the fair-and-balanced folks once went so far as to leak a false story to a journalist — anonymously, of course — and then denounce him in public after he reported it.

Of course, this all leads to the political question of the moment: Does this mean Brown isn’t running for senator? Or president? Or whatever office he is thought to be flirting with this week?

Update: And here comes John Carroll.

Screen image via Media Matters for America.

Godwin’s law, the speaker and the Concord Monitor

Click to watch video at Patch.com

(This commentary is also online at the Huffington Post and at the New England First Amendment Center.)

Godwin’s law came to New Hampshire earlier this year. And Speaker of the House Bill O’Brien is retaliating against the Concord Monitor in a manner that may violate the First Amendment.

For those unfamiliar with the phrase, Godwin’s law — first espoused by Mike Godwin, a lawyer and veteran Internet free-speech activist — pertains to the tendency of online debate to devolve into Nazi analogies. As Godwin put it some years ago, “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

Maybe it’s the Internet effect, but the Nazification of real-world political debate has been under way for some time now. And so it was in mid-May, when state Rep. Steve Vaillancourt, a Republican, grew frustrated with what he saw as efforts by Speaker O’Brien, also a Republican, to silence him. So Vaillancourt directed a toxic remark at O’Brien: “Seig Heil.” He was ejected from the chamber and forced to apologize.

Enter Mike Marland, who draws editorial cartoons for the Concord Monitor. He depicted O’Brien with a Hitler-style mustache, holding a razor. The caption: “If the mustache fits …” You can see the cartoon here, along with a commentary by Monitor editor Felice Belman. Despite having written an editorial taking Vaillancourt to task for his Third Reich-style outburst, Belman defended Marland’s cartoon in defiance of Republican demands that the paper apologize:

When Marland submitted the O’Brien cartoon, there was significant discussion here among the senior editors and our publisher about whether to put it into the paper. In the end, we are not Marland’s censors. He is entitled to his view of the speaker, and his views are his own. This cartoon was harsh, no doubt. But it seemed on point, given last week’s circus. In fact, several Monitor letter writers have made a similar point — in words, if not images.

There matters stood until last Friday, when O’Brien held a news conference in his Statehouse office — and banned two Monitor reporters from attending. Concord Patch editor Tony Schinella, who was among those covering the event, wrote that the reporters, Annmarie Timmins and Matt Spolar, “were told they weren’t invited and were held at bay at the door.” Schinella also shot video of the reporters being turned away (above), and of O’Brien refusing to answer a question as to why he wouldn’t let them in. (Timmins’ own video of the encounter makes for must-see viewing as well.)

O’Brien’s spokeswoman later released a statement: “When the Concord Monitor proves they have chosen to become a responsible media outlet, we’ll be happy to invite them to future media events.”

As the Monitor put it in an editorial, “It’s hard to know which is more startling: a politician attempting to pick his own press corps or the notion that a politician — or a politician’s mouthpiece — gets to decide what constitutes ‘a responsible media outlet.’ Are these people new to this country?”

Now, depending on your point of view, you might think O’Brien’s behavior was either boorish or principled. But perhaps you wouldn’t question his right to do it. Indeed, even the Monitor editorial included this: “There’s nothing requiring O’Brien to let the Monitor into his press conference.”

In fact, though, O’Brien may well have been interfering with the Monitor’s First Amendment right to cover the news.

Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:

A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.

But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.

Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.

The parallel between the Honolulu and Concord situations is pretty obvious, though it’s impossible to say whether a different court would come to the same conclusion nearly 40 years later. In a commentary published by the Monitor, Steven Gordon, a lawyer, argued that O’Brien’s action may well have been an unconstitutional abridgement of the paper’s free-press rights.

I just hope Speaker O’Brien comes to his senses and realizes that the Monitor was well within its rights to run the Hitler cartoon no matter how much he may wish it hadn’t done so. He, on the other hand, has no right to discriminate against a media outlet he doesn’t like.

Romney’s speech and the dispiriting politics of 2012

In my latest for the Huffington Post, I attempt to deconstruct Mitt Romney’s cynical, dishonest victory speech in New Hampshire last night — starting with his amnesia regarding the economic collapse that swept Barack Obama into the presidency.