Frese v. Formella
53 F.4th 1
1st Cir.2022Background
- New Hampshire criminal defamation statute makes it a class B misdemeanor to purposely communicate information one knows to be false that will tend to expose a living person to "public hatred, contempt or ridicule"; conviction carries only a fine and no right to jury or appointed counsel.
- Police departments and private citizens in New Hampshire may initiate misdemeanor prosecutions without prior approval from prosecutors.
- Robert Frese was twice charged under the statute: a 2012 Craigslist post (he pled guilty and was fined) and a 2018 anonymous online comment about a police officer (charges later dropped after the Attorney General concluded there was no probable cause).
- Frese filed suit alleging (1) the statute is unconstitutionally vague in violation of the Fourteenth Amendment (facial and "hybrid" as-applied-in-state-process challenges) and (2) the statute violates the First Amendment by criminalizing defamatory speech.
- The district court dismissed the amended complaint under Rule 12(b)(6); the First Circuit affirmed, holding Garrison controls the First Amendment claim and that the statute is not unconstitutionally vague (adequate enforcement guidance and notice, aided by mens rea and common-law definitions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment: Is criminal defamation per se unconstitutional? | Frese: criminal defamation should be per se invalid; Garrison should be revisited. | State: Supreme Court precedent permits criminal sanctions for knowingly or recklessly false statements (Garrison/New York Times). | Court: Garrison governs; deliberate/reckless false statements are unprotected, so First Amendment claim fails. |
| Vagueness—Discriminatory enforcement: Does §644:11 give law enforcement unbridled discretion? | Frese: wording and inclusion of any "professional or social group" allows arbitrary, selective enforcement. | State: statute defines falsity plus tendency to expose to "hatred, contempt or ridicule," and incorporates stable common-law definitions and an objective standard. | Court: statute supplies adequate guidelines; not a blank check to police; passes vagueness scrutiny on discriminatory-enforcement grounds. |
| Vagueness—Lack of notice / Hybrid vagueness: Does the statute fail to give ordinary persons fair notice, including in NH's misdemeanor prosecution context? | Frese: terms are uncertain, group definitions vary, and prosecution scheme (police-initiated misdemeanors, no jury or counsel) exacerbates vagueness. | State: mens rea (knowledge) and common-law objective meanings give notice; some interpretive flexibility is permissible. | Court: statute gives ordinary-intelligence notice; mens rea and common-law import ameliorate concerns; hybrid challenge likewise fails. |
Key Cases Cited
- Garrison v. Louisiana, 379 U.S. 64 (1964) (permits criminal sanctions only for statements made with knowledge of falsity or reckless disregard)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (actual malice standard for public-official defamation claims)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness/notice principles; laws need not have "mathematical certainty")
- Kolender v. Lawson, 461 U.S. 352 (1983) (struck statute giving police overly broad discretion to demand identification)
- Hill v. Colorado, 530 U.S. 703 (2000) (First Amendment vagueness/overbreadth analysis and standard for statutes affecting speech)
- United States v. Williams, 553 U.S. 285 (2008) (vagueness doctrine; standards for discriminatory enforcement and notice)
- United States v. Alvarez, 567 U.S. 709 (2012) (plurality and concurrences express concern about criminalizing false speech and chilling effects)
- Ashton v. Kentucky, 384 U.S. 195 (1966) (invalidated overly broad criminal libel; suggested narrower, malice-based statutes could be constitutional)