ACLU NH: “There are serious free speech concerns with the enforcement of this criminal statute against the speech of this individual”
A New Hampshire man posted a comment online about alleged (by him) local police misconduct—he reportedly wrote, “Chief Shupe covered up for this dirty cop”—and was later arrested and charged with “criminal defamation of character.”
With the link this time… Robert Frese, of Exeter, was arrested by Exeter Police on a charge of criminal defamation of character, a charge which has been criticized by the @ACLU_NH. My story for @seacoastonline https://t.co/4GSDLT8yrg pic.twitter.com/YSjvjtv7JY
— Alex LaCasse (@Nomad_Reports) June 1, 2018
An Exeter man was arrested after posting comments online regarding Police Chief William Shupe, a charge that has drawn criticism from the American Civil Liberties Union.
Robert W. Frese, 62, of 43 Hayes Mobile Home Park, was charged May 23 with criminal defamation of character, a Class B misdemeanor. According to the complaint, Frese allegedly posted that “Chief Shupe covered up for a dirty cop.”
Exeter police Patrol Capt. Stephan Poulin declined to comment on the arrest and said Shupe could not comment because “he’s the victim.”
Frese believes an online comment he made May 3, when he accused a recently retired Exeter officer of police misconduct and that Shupe “covered up for this dirty cop,” led to the charge.
. . . . The criminal complaint against Frese reads, “(Frese) purposely communicated on a public website, in writing, information which he knows to be false and knows will tend to expose another person to public contempt, by posting that Chief Shupe covered up for a dirty cop.”
The New Hampshire chapter of the ACLU is calling for the immediate dismissal of charges.
Frese said he believes the defamation charge is “bogus” and that police charged him because it would trigger his re-arrest for violating good behavior as ordered from a prior conviction. “They know I’ll go to jail if I get convicted of a misdemeanor,” Frese said. “They want to silence me.”
Gilles Bissonnette, legal director with the New Hampshire chapter of the ACLU, called on the Exeter police to dismiss the charge immediately. He cited the U.S. Supreme Court New York Times v. Sullivan decision that upheld the “actual malice” standard, before speech against public officials can be considered libel.
“There are serious free speech concerns with the enforcement of this criminal statute against the speech of this individual. Indeed, it appears that the police may be using this statute to suppress speech that is critical of police,” Bissonette said. “Even in civil cases, public officials must meet a stringent standard in order to recover damages for defamatory statements. Allowing criminal prosecutions for such statements would give the government too much power to censor its critics, and would inevitably chill political speech lying at the heart of the First Amendment.”
Slate has more on the statute in question and its application in this case:
Are these actions by the Exeter police actually legal? Almost certainly not. Political speech—and, in particular, criticism of public officials—lies at the heart of the First Amendment, and the Exeter police would have to overcome several hurdles to secure a conviction. Perhaps most obviously, the law under which Frese was charged may be unconstitutional on its face.
The statute criminalizes false speech that “tend[s] to expose” a living person to “public hatred, contempt or ridicule,” without distinguishing between expression directed at private individuals and public figures. But the First Amendment protects some false speech, particularly in the context of political debate. And the astonishing breadth of this law, outlawing any fiction that brings “ridicule” upon a living person, raises serious constitutional concerns.
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