The strong medicine of overbreadth as applied to criminal libel.

• Author: Newmark, Gideon

INTRODUCTION

In 2000, Allan Parmelee, an inmate at the King County Jail in the state of Washington, filed two grievances for two separate clashes with guards. (1) In one altercation, he called a guard an "asshole" and a "piss-ant." (2) In the next, he called a guard a "shithead." (3) For each grievance, King County charged Parmelee with violating the prison role prohibiting defiance, insolence, and abuse. (4) After administrative hearings, the County convicted Parmelee of both infractions. In denying his appeal, the County admonished him "not to use degrading language--respect those in authority." (5) For each infraction, the County punished Parmelee with ten days of segregation and ten days of lost good time. (6) Parmelee then brought suit, alleging that the infraction violated his First Amendment rights. (7) The Washington Court of Appeals affirmed the administrative decisions, finding that the First Amendment did not protect Parmelee's right to make disparaging comments about prison employees. (8)

Five years later, Parmelee was back in Washington State's custody. (9) This time, the charges pertained to a letter Parmelee sent to the head of Washington's Department of Corrections alleging that the superintendent of Clallam Bay Corrections Center was "anti male[,] a lesbian," and thus unfit to run the prison. (10) Prison officials intercepted the letter and charged Parmelee with violating the prison rule against committing "any act that is a misdemeanor under local, state, or federal law that is not otherwise included in [the prison] rules." (11) The "not otherwise included" misdemeanor was criminal libel. (12) Prison officials found Parmelee guilty of this infraction at an administrative hearing, punishing him with ten days of disciplinary isolation and ten days without privileges. (13)

Parmelee subsequently filed suit, alleging that the infraction violated his First Amendment rights. (14) This time, however, the Washington Court of Appeals sustained his suit, finding Washington's criminal libel law facially unconstitutional under the First Amendment. (15) Intuitively, it would seem bizarre that Parmelee could be punished for calling a prison employee an "asshole," but not for calling one a "lesbian." Under the First Amendment doctrine of overbreadth, however, one who engages in unprotected speech may challenge a law that purports to punish protected speech along with unprotected speech. (16) As such, Parmelee was able to successfully challenge his second infraction, even though the state had previously been able to punish him for similar behavior. Because the state proceeded under the criminal libel statute and not the prison rules, the First Amendment overbreadth doctrine rendered his second punishment unconstitutional. This outcome is justified by the theory that overbroad laws have a chilling effect on speech. Thus, for the good of society as a whole, an individual convicted under an overbroad law has standing to challenge it, even if he could legally be punished for his speech under a more narrow law. (17)

The outcome in Parmelee was not the only one possible. It is true that within the past twenty years, many courts have taken the same course as Parmelee and have thrown out entire criminal libel statutes on overbreadth grounds. (18) However, others have partially invalidated or imposed narrowing constructions on such laws, invalidating them only insofar as they violate the First Amendment. (19) This approach might have allowed Washington to uphold Parmelee's second punishment for unprotected speech, while narrowing the criminal libel statute to protect the public from any chilling effect.

The current judicial split on which path to take results largely from tension in Supreme Court jurisprudence surrounding the overbreadth doctrine. On the one hand, the Court has "'recognized that the overbreadth doctrine is "strong medicine" and [has] employed it with hesitation, and then "only as a last resort."'" (20) When it is necessary to apply the overbreadth doctrine, the Court has advised that the judiciary should (where possible) partially invalidate or impose a limiting construction on the law instead of striking it down completely. (21) Even so, the Court has held that judges should not usurp legislative authority by imposing constructions that preserve unconstitutional laws by effectively rewriting them. (22)

Many states still provide criminal penalties for libel under old statutes that have never been updated to comply with the Supreme Court's First Amendment doctrine. (23) And challenges to these laws are likely to arise under the overbreadth doctrine, since modern criminal libel prosecutions are often brought over completely false, unprotected libelous speech, where overbreadth is the defendant's only means of escaping punishment. (24) Consequently, the question of how courts should treat overbreadth challenges against criminal libel statutes is an important issue in modern constitutional law. Furthermore, the courts that have heard overbreadth challenges to criminal libel laws have largely not engaged each other on the issue of whether to strike down or preserve such laws. This Comment examines the legal history of criminal libel and the Supreme Court's precedent on the subject, and proposes that, on balance, applying limiting constructions and partial invalidations to overbroad criminal libel statutes is the proper course under the First Amendment.

Part I of this Comment provides a brief history of criminal libel, and examines its modern significance. Part II will examine the tension between the Court's precedent dealing with overbroad speech-restricting statutes. Part III will compare cases within the last twenty years where courts invalidated overbroad criminal libel statutes with cases where courts elected to impose limiting constructions on such statutes instead. (25) It will further argue that Supreme Court doctrine makes legislative intent the most important question when considering whether to strike down state criminal libel statutes and that, absent special circumstances, legislative intent will most likely cut against striking down a criminal libel statute in its entirety.

1. CRIMINAL LIBEL PAST AND PRESENT

   In order to determine the proper way to treat criminal libel statutes, it is first important to know the origins of criminal libel, as well as its modern relevance. By examining the historical justification for criminal libel laws, one can determine whether such laws still serve the purpose they once did. By analyzing the way that states have applied criminal libel laws over the past two decades, one can estimate the value of criminal libel statutes to modern society.

   1. The History of Criminal Libel

      Criminal libel laws punish malicious statements "designed to expose a person to hatred, contempt, or ridicule." (26) Though criminal libel's origins can be traced as far back as ancient Babylonia, (27) its instance in America is most directly traceable to English common law. (28) The common law regarded libel as a crime due to its origins in the authoritarian feudal system, which depended on the absolute authority of the ruling class. (29) Because disparaging comments about members of the ruling class tended to erode their authority, the law punished libel as a harm to society. (30) Truth was no defense, because true statements could have the same detrimental effect as false statements. (31) If anything, truth was an aggravating factor, because true statements could damage the ruling class much more than false statements. (32) At common law, it was axiomatic that, "'the greater the truth, the greater the libel.'" (33)

      Criminal libel persisted throughout early American history, both by the adoption of English common law and in statutes such as the Sedition Act of 1798. (34) Though the authoritarian rationales underlying criminal libel were less relevant in America's egalitarian system, courts "'clung tenaciously' to its underlying legal justification of preventing breaches of the peace well into the twentieth century." (35)

      Starting in the early nineteenth century, criminal libel began to erode in America. By the early 1800s, American law had begun to accept truth as a defense to criminal libel prosecution. (36) By the 1830s (if not well before), "the civil remedy [for libel] had virtually pre-empted the field of defamation" in criminal libel prosecution, with the exception of seditious libel. (37) In the early 1900s, the Supreme Court limited criminal libel by requiring that, to punish speech, the government must show a "clear and present danger" of the harm the government seeks to prevent. (38) In the context of libel, this meant that the state had to prove that a statement posed a clear and present danger of exposing the victim to shame or ridicule, as opposed to merely showing it had a tendency to do so. (39)

      In 1964, with Garrison v. Louisana, (40) the Supreme Court all but eliminated the historical version of criminal libel by applying the New York Times v. Sullivan (41) standard to criminal libel prosecutions. Under this standard, the government may not punish libel regarding public figures unless it was published with "actual malice." (42) Actual malice is a mens rea defined as knowing falsehood or reckless disregard for the truth. (43) Garrison further provided that truth must always stand as a defense to criminal libel. (44) These requirements constitute the test for the constitutionality of criminal libel laws to this day. Therefore, a criminal libel statute today must a) provide truth as a defense, and b) except from prosecution statements made about public figures without actual malice. A statute that fails to meet these requirements sweeps protected speech in with unprotected libel, making it unconstitutionally overbroad under the First Amendment. (45)

   2. Criminal Libel Today

      Though libel is no longer a crime in most states, at least twenty states continue to leave...