Frese v. Formella

United States Court of Appeals
For the First Circuit
No. 21-1068
ROBERT FRESE,
Plaintiff, Appellant,
v.
JOHN M. FORMELLA, in his official capacity as Attorney General
of the State of New Hampshire,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Kayatta, Howard, and Thompson, Circuit Judges.
Brian Hauss, with whom Emerson Sykes, American Civil
Liberties Union Foundation; Gilles Bissonnette and Henry R.
Klementowicz, American Civil Liberties Union of New Hampshire;
John M. Greabe; Lawrence A. Vogelman and Shaheen & Gordon, P.A.
were on brief, for appellant.
Samuel R.V. Garland, Assistant Attorney General, with whom
John M. Formella, Attorney General of New Hampshire, and Anthony
J. Galdieri, Senior Assistant Attorney General, were on brief, for
appellee.
November 8, 2022
HOWARD, Circuit Judge. New Hampshire is among a handful
of states that allow criminal prosecution of defamation. Appellant
Robert Frese has twice been charged with violating the criminal
defamation statute and now argues that the statute itself
contravenes the First and Fourteenth Amendments. 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.
Garrison v. Louisiana, 379 U.S. 64, 75 (1964). We thus affirm the
district court's dismissal.
I.
New Hampshire's criminal defamation statute provides
that "[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." N.H. Rev.
Stat. § 644:11(I). "'[P]ublic' includes any professional or
social group of which the victim of the defamation is a member."
Id. at § 11(II). A person convicted of a class B misdemeanor faces
a fine of up to $1,200. N.H. Rev. Stat. § 651:2(IV)(a). Because
such charges carry no possibility of jail time, criminal defamation
defendants have no right to trial by jury and are not afforded
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court-appointed counsel. See State v. Whitney, 172 N.H. 380, 382
(2019); State v. Foote, 149 N.H. 323, 324 (2003); State v.
Westover, 140 N.H. 375, 377-78 (1995).
New Hampshire's misdemeanor enforcement process empowers
police departments to prosecute defamation. In the absence of the
exercise of discretionary supervisory authority by the state
Attorney General or County Attorneys, municipal police departments
may initiate prosecutions for misdemeanors, including criminal
defamation, without prior input or approval from such prosecutors.
See State v. La Palme, 104 N.H. 97, 98-99 (1962) ("The prosecution
of misdemeanors by police officers is a practice that has continued
in one form or another since 1791 and is still permissible under
existing statutes." (citing State v. Urban, 98 N.H. 346 (1953)));
see also N.H. Rev. Stat. § 41:10-a (recognizing the power of police
officers to prosecute misdemeanors). Private citizens may also
prosecute misdemeanors in New Hampshire, so long as incarceration
is not an applicable penalty. See State v. Martineau, 148 N.H.
259, 261, 263 (2002).1
Although criminal defamation is rarely prosecuted in New
Hampshire, Frese has twice been charged under section 644:11. In
1 Notably, any private citizen who commences one of these
actions could be held liable for malicious prosecution if that
person acted without probable cause; likewise, a police officer
could be liable if the officer acted wantonly. Farrelly v. City
of Concord, 168 N.H. 430, 440 (2015); State v. Rollins, 129 N.H.
684, 687 (1987) (Souter, J.).
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2012, the Hudson Police Department arrested Frese for comments
about a local life coach that he posted on a Craigslist website.
Frese called the coach's business a scam and accused him of, among
other things, being involved in a road rage incident and
distributing heroin. Without the advice of counsel, Frese pleaded
guilty and was fined $1,488, of which $1,116 was conditionally
suspended. Six years later, the Exeter Police Department arrested
Frese for comments he had pseudonymously posted in the online
comments section of a newspaper article about a retiring Exeter
police officer. The comments included statements that the retiring
officer was "the dirtiest[,] most corrupt cop [Frese] ha[d] ever
had the displeasure of knowing" and that the officer's daughter
was a prostitute.
Frese's second arrest generated public controversy. In
response, the New Hampshire Attorney General interposed and
concluded that the police department had arrested Frese without
probable cause because there was no evidence that Frese knew his
statements were false. The Exeter Police Department subsequently
dropped the charges.
In late 2018, maintaining that he feared future arrest,
Frese filed a complaint in federal district court asserting that
section 644:11 is so vague as to violate the Fourteenth Amendment.
After initial skirmishing, Frese filed an amended two-count
complaint, which is the operative complaint before us. As before,
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the first count charges that section 644:11 "is unconstitutionally
vague, both on its face and as applied in the context of New
Hampshire's system for prosecuting [c]lass B misdemeanors," in
violation of the Fourteenth Amendment. The second count asserts
that the statute "violates the First Amendment because it
criminalizes defamatory speech." The State moved to dismiss the
amended complaint, and the district court obliged. After first
finding that Frese had established standing to bring the case, the
court dismissed for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6).2 Frese's timely appeal followed.
II.
We review the district court's dismissal of the
complaint under Rule 12(b)(6) de novo. See Barchock v. CVS Health
Corp., 886 F.3d 43, 48 (1st Cir. 2018) (citing SEC v. Tambone, 597
F.3d 436, 441 (1st Cir. 2010) (en banc)). "We take the complaint's
well-pleaded facts as true, and we draw all reasonable inferences
in [Frese's] favor." Id. Well-pleaded facts are those that are
"'non-conclusory' and 'non-speculative.'" Id. (quoting Schatz v.
The parties do not challenge the finding of standing, and
2
we see no error in the district court's standing analysis. See
Dantzler, Inc. v. Empresas Berríos Inventory and Operations, Inc.,
958 F.3d 38, 46 (1st Cir. 2020) ("'[B]ecause standing is a
prerequisite to a federal court's subject matter
jurisdiction' . . . we must 'assure ourselves of our jurisdiction
under the federal Constitution' before we proceed to the merits of
a case." (first quoting Hochendoner v. Genzyme Corp., 823 F.3d
724, 730 (1st Cir. 2016), then quoting Pérez-Kudzma v. United
States, 940 F.3d 142, 144 (1st Cir. 2019))).
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Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
2012)). To survive dismissal, "the complaint must 'contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.'" Id. (quoting Tambone, 597
F.3d at 437).
A. First Amendment Claim
Frese argues that section 644:11 violates the First
Amendment because criminal defamation laws should be per se
unconstitutional. The Supreme Court, however, has upheld the
criminalizing of false speech, explaining that deliberate and
recklessly false speech "do[es] not enjoy constitutional
protection." Garrison, 379 U.S. at 75. Thus, the state can
"impose criminal sanctions for criticism of the official conduct
of public officials" so long as the statements were made with
"'actual malice' -- that is, with knowledge that [they were] false
or with reckless disregard of whether [they were] false or not."
Id. at 67 (quoting New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964)); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 66
(1st Cir. 2003).
Frese concedes that Garrison forecloses his First
Amendment claim but argues that "[t]he time has come to revisit
that decision." But, as Frese acknowledges, we do not have the
power to revisit Supreme Court decisions. See Hohn v. United
States, 524 U.S. 236, 252-53 (1998); United States v. Morosco, 822
- 6 -
F.3d 1, 7 (1st Cir. 2016) ("[B]ecause overruling Supreme Court
precedent is the Court's job, not ours, we must follow [prior
decisions] until the Court specifically tells us not to . . . even
if these long-on-the-books cases are in tension with [newer
cases]."). Accordingly, we must find that Garrison precludes
Frese's First Amendment attack on section 644:11.
B. Fourteenth Amendment Vagueness
"The vagueness doctrine, a derivative of due process,
protects against the ills of laws whose 'prohibitions are not
clearly defined.'" Nat'l Org. for Marriage v. McKee, 649 F.3d 34,
62 (1st Cir. 2011), abrogated on other grounds by Ams. for
Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972)). A statute is
impermissibly vague if it "fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement." United States v. Williams, 553 U.S.
285, 304 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732
(2000)); see also Johnson v. United States, 576 U.S. 591, 595
(2015). This creates two avenues by which to attack a vague
statute: discriminatory enforcement and lack of notice.
To prevent the chilling of constitutionally protected
speech, we apply a "heightened standard" in cases involving the
First Amendment and "require[] a 'greater degree of specificity'"
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in a statute that restricts speech. McKee, 649 F.3d at 62 (quoting
Buckley v. Valeo, 424 U.S. 1, 77 (1976)). Additionally, "if
criminal penalties may be imposed for violations of a law, a
stricter standard is applied in reviewing the statute for
vagueness." Manning v. Caldwell for City of Roanoke, 930 F.3d
264, 272-73 (4th Cir. 2019) (citing Vill. of Hoffman Ests. v.
Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498-99 (1982)). "But
'perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.'"
Williams, 553 U.S. at 304 (quoting Ward v. Rock Against Racism,
491 U.S. 781, 794 (1989)); see also McKee, 649 F.3d at 62.
Frese mounts a facial challenge to section 644:11, as
well as a "hybrid" challenge. We first consider his facial
challenge. To succeed, Frese must "establish that no set of
circumstances exists under which the [statute] would be valid."
Dutil v. Murphy, 550 F.3d 154, 160 (1st Cir. 2008) (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)). We are mindful that
facial challenges "are disfavored" because they "often rest on
speculation," "run contrary to the fundamental principle of
judicial restraint," and "threaten to short circuit the democratic
process." Hightower v. City of Boston, 693 F.3d 61, 76-77 (1st
Cir. 2012) (quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450 (2008)).
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Frese argues that section 644:11 is unconstitutionally
vague under both lack of notice and discriminatory enforcement
theories, training most of his attention on discriminatory
enforcement. We turn to that claim first.
1. Discriminatory Enforcement
A "statute authorizes an impermissible degree of
enforcement discretion -- and is therefore void for vagueness --
where it fails to 'set reasonably clear guidelines for law
enforcement officials and triers of fact in order to prevent
arbitrary and discriminatory enforcement.'" Act Now to Stop War
& End Racism Coal. v. District of Columbia, 846 F.3d 391, 410-11
(D.C. Cir. 2017) (quoting Smith v. Goguen, 415 U.S. 566, 573
(1974)); see also Kolender v. Lawson, 461 U.S. 352, 358 (1983)
(explaining that the most "important aspect of vagueness doctrine"
is "the requirement that a legislature establish minimal
guidelines to govern law enforcement" (internal citation
omitted)).
We conclude that the statute at issue here provides
adequate guidelines for law enforcement, and therefore passes
constitutional muster. Frese argues that the statute is
unconstitutionally vague, because different persons may have
"different standards for determining what is and is not
defamatory." But the statute provides reasonably clear guidance
-- defamatory statements are those false statements that "expos[e]
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any . . . person to public hatred, contempt or ridicule."
Likewise, we doubt that reasonable persons will have much
difficulty in ascertaining objectively whether a false statement
exposes the victim to public hatred, contempt, or ridicule, even
if the public is defined to include professional and social groups
to which the victim belongs. Frese offers no hypothetical example
of how a factfinder might struggle unduly to determine whether a
given set of facts demonstrates the requisite tendency of the false
remarks. Indeed, for centuries factfinders have made such
determinations. E.g., Richardson v. Thorpe, 73 N.H. 532, 534
(1906) (collecting cases for the proposition that whether an
ambiguous phrase was defamatory is a question for the jury).
The parties also agree that section 644:11 adopts part
of New Hampshire's common law defamation standard. Under the
common law, "[w]ords may be found to be defamatory if they hold
the plaintiff up to contempt, hatred, scorn or ridicule, or tend
to impair [the plaintiff's] standing in the community." Boyle v.
Dwyer, 172 N.H. 548, 554 (2019) (second alteration in original)
(quoting Thomas v. Tel. Publ'g Co., 155 N.H. 314, 338 (2007)).
The incorporation of common law standards provides further
guidance to law enforcement about the meaning of the statute, not
least because the definition of defamation under New Hampshire
common law has remained relatively consistent for over one hundred
years, and has been regularly analyzed by courts and applied by
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juries. Compare Richardson, 73 N.H. 532 at 534 ("Any written words
which directly or indirectly charge a person with a crime, or which
tend to injure his reputation in any other way, or to expose him
to public hatred, contempt, or ridicule, are defamatory."), with
Boyle, 172 N.H. at 554 ("Words may be found to be defamatory if
they hold the plaintiff up to contempt, hatred, scorn or ridicule,
or tend to impair [the plaintiff's] standing in the community."
(alteration in original) (quoting Thomas, 155 N.H. at 338)).
Additionally, common law defamation in New Hampshire is
subject to objective measurement, which further protects against
arbitrary enforcement. Under New Hampshire common law, liability
may be imposed only if "the defamatory meaning . . . [is] one that
could be ascribed to the words by persons of common and reasonable
understanding." Id. (quoting Thomson v. Cash, 119 N.H. 371, 373
(1979)).
Nevertheless, Frese contends that "the common law of
civil defamation is not stable or precise enough to define a
criminal restriction on speech." Frese cites three cases to
support this contention. But in each of these cases the laws found
to be unconstitutionally vague were significantly broader than
section 644:11 and did not contain a requirement that the speaker
know the statement to be false. See Ashton v. Kentucky, 384 U.S.
195, 198 (1966) (trial court defined criminal libel as "any writing
calculated to create disturbances of the peace, corrupt the public
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morals, or lead to any act, which, when done, is indictable");3
Tollett v. United States, 485 F.2d 1087, 1088 n.1 (8th Cir. 1973)
(statute prohibited mailing post cards containing "language of
libelous, scurrilous, defamatory, or threatening character, or
[language] calculated by the terms or manner or style of display
and obviously intended to reflect injuriously upon the character
or conduct of another"); Gottschalk v. State, 575 P.2d 289, 290
n.1 (Alaska 1978) (statute proscribed "publish[ing] defamatory or
scandalous matter concerning another with intent to injure or
defame him").4
Thus, none of Frese's cited cases involved a statute on
all fours with the one here, and Frese offers us no reason to
discount this distinction. And at least one federal district court
3 It is worth noting that in Ashton, the Supreme Court implied
in its analysis that a criminal defamation law that prohibited
"the publication of a defamatory statement about another which is
false, with malice" would not be unconstitutionally vague. See
Ashton, 384 U.S. at 198; How v. City of Baxter Springs, 369 F.
Supp. 2d 1300, 1305-06 (D. Kan. 2005).
4 The statute in Gottschalk did not define "defamatory or
scandalous." Gottschalk, 575 P.2d at 292. The court determined
that therefore, "the common law definition must be relied on."
Id. The common law considered "any statement which would tend to
disgrace or degrade another, to hold him up to public hatred,
contempt or ridicule, or to cause him to be shunned or avoided was
considered defamatory." Id. The court in Gottschalk apparently
found that this common law definition was impermissibly vague,
though at times the court seemed to gesture towards the language
of the statute itself as the root of the vagueness problem. Id.
at 293 (explaining that the language of the statute -- prohibiting
"defamatory" or "scandalous" speech -- is vague).
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has denied a vagueness challenge to a criminal defamation statute
broader than section 644:11. See How, 369 F. Supp. 2d at 1304(finding statute that criminalized "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" was not unconstitutionally
vague).
Section 644:11 also provides significantly more guidance
than statutes that have been determined unconstitutionally vague.
In Kolender, the Supreme Court concluded that a California statute
targeting loitering was unconstitutional. The law required a
suspect stopped by police to provide "reliable" identification and
to account for his presence. Kolender, 461 U.S. at 353. When
asked to give "examples of how suspects would satisfy the
[statute's] requirement[s]," counsel explained that "a jogger, who
was not carrying identification, could, depending on the
particular officer, be required to answer a series of questions
concerning the route that he followed to arrive at the place where
the officers detained him or could satisfy the identification
requirement simply by reciting his name and address." Id. at 360(internal citations omitted).
- 13 -
The Supreme Court determined that this statute afforded
"full discretion" to police "to determine whether the suspect has
provided a 'credible and reliable' identification," id., and
therefore impermissibly "entrust[ed] lawmaking to the moment-to-
moment judgment of the policeman on his beat," id. (quoting Smith,
415 U.S. at 575). Other laws or regulations found by courts to be
unconstitutionally vague include statutes that contain no standard
at all about when officials can exercise their discretion, as well
as regulations prohibiting any "appearance" that is
"objectionable." Act Now, 846 F.3d at 411 (citing Niemotko v.
Maryland, 340 U.S. 268, 271–72 (1951), then quoting Armstrong v.
D.C. Pub. Library, 154 F. Supp. 2d 67, 81-82 (D.D.C. 2001)); see
also Williams, 553 U.S. at 306 (explaining that statutes that
proscribe "annoying" behavior are vague, as they involve "wholly
subjective judgments"). The statute here is a far cry from the
blank checks to law enforcement that were found unconstitutional
in these cases.
Nor is the statute vague because it requires some
exercise of law enforcement judgment -- indeed, "enforcement
[inevitably] requires the exercise of some degree of police
judgment," and the question thus becomes whether "the degree of
judgment involved . . . is acceptable." Hill, 530 U.S. at 733(quoting Grayned, 408 U.S. at 114). The language of section 644:11
is sufficient, as it gives reasonably specific guidance to law
- 14 -
enforcement. Likewise, "[w]hat renders a statute vague . . . is
not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely what that fact
is." Act Now, 846 F.3d at 411 (quoting Williams, 553 U.S. at 306).
At most, Frese contends that, in any given case, it might be
debatable whether it has been established that a statement in fact
"tend[s] to expose . . . another . . . to hatred [or] contempt."
His challenge fails accordingly.5
2. Lack of Notice
A statute is impermissibly vague for lack of notice "only
if it 'prohibits . . . an act in terms so uncertain that persons
of average intelligence would have no choice but to guess at its
meaning and modes of application.'" McKee, 649 F.3d at 62 (quoting
United States v. Councilman, 418 F.3d 67, 84 (1st Cir. 2005) (en
banc)).6 We conclude that the statute provides sufficiently clear
Frese argues that the statute must be considered in light
5
of extrinsic evidence of New Hampshire's enforcement scheme.
However, we need not address this issue, because we determine that
the core statutory text of the criminal defamation statute provides
adequate enforcement guidelines and the prosecution scheme does
not alter or overcome this conclusion. We therefore need not
address precisely what extrinsic context a court may consider in
a vagueness analysis.
The district court collapsed its discussion of lack of
6
notice into its consideration of Frese's excessive discretion
claim. As Frese points out, however, the district court's
"analysis of [his] arbitrary enforcement challenge focused largely
on notice issues."
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notice. For the reasons described above, the language clearly
defines and delimits its scope, such that it gives a person of
"ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits." Hill, 530 U.S. at 732.
In Hill, the Supreme Court confronted a challenge to a
Colorado statute that that prohibited "knowingly approach[ing]" a
person to "engag[e] in oral protest, education, or counseling with
[that] person." Id. at 707. The Court concluded that the statute
provided adequate notice. Specifically, it reasoned, while there
might be some hypothetical cases where there would be a "nice
question" about the "meaning of these terms," courts cannot require
statutes to use language with "mathematical certainty." Id. at
732-33 (quoting Am. Commc'ns Assn. v. Douds, 339 U.S. 382, 412
(1950), then Grayned, 408 U.S. at 110). As with the Colorado
statute considered in Hill, section 644:11 may beget cases where
there are questions about whether the conduct at issue falls within
the language of the statute. However, this alone does not create
a notice problem, given that "it is clear what the [statute] as a
whole prohibits." Hill, 530 U.S. at 733 (quoting Grayned, 408
U.S. at 110); see also Henderson v. McMurray, 987 F.3d 997, 1004
(11th Cir. 2021).
Refining his notice argument, Frese takes issue with
section 644:11's definition of "public" to include "any
professional or social group," which Frese claims does not consider
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"how small the group or how peculiar its views." Frese argues
that the statute cannot provide adequate notice because
"[d]ifferent professional and social groups will often have
different, sometimes conflicting, standards for what constitutes
defamation." The statute, Frese argues, "incorporates each of
these" potentially disparate "standards as a yardstick for
criminal conviction," and as such, makes it difficult for any
person to determine what conduct the statute prohibits.7
We are not convinced. First, the incorporation of the
common law provides safeguards against imposing criminal liability
for speech that offends the views of particularly niche or
idiosyncratic groups, which in turn shields against any notice
problems. As discussed previously, the common law objectivity
standard requires that "the defamatory meaning . . . [is] one that
could be ascribed to the words by persons of common and reasonable
understanding." Boyle, 172 N.H. at 554. And section 644:11(I)'s
knowledge requirement creates additional protection.8
7Frese also asserts that "this is a constitutionally
significant departure from the common law," which imposes civil
liability for defamation only when a person's language "tend[s] to
lower the plaintiff 'in the esteem of any substantial and
respectable group, even though it may be quite a small minority.'"
Thomson, 119 N.H. at 373 (quoting Prosser on Torts § 111 (4th ed.
1971)).
Citing United States v. Alvarez, 567 U.S. 709, 736 (2012)
8
(Breyer, J., concurring in the judgment), Frese points out that a
mens rea requirement does not eliminate chilling concerns because
"a speaker might still be worried about being prosecuted for a
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Moreover, in order for a statute to give fair notice, it
need not map out what is prohibited with "meticulous specificity."
Grayned, 408 U.S. at 110 (upholding statute that prohibited the
"making of any noise or diversion which disturbs or tends to
disturb the peace or good order of [a] school session or class
thereof"). It must only "delineate[] its reach in words of common
understanding." Id. at 112 (quoting Cameron v. Johnson, 390 U.S.
611, 616 (1968)). Thus, while there is indeed some "breadth" and
"flexibility" inherent in the scope of the statute, id. (quoting
Esteban v. Cent. Mo. State Coll., 415 F.2d 1077, 1088 (8th Cir.
1969) (Blackmun, J.)), none of Frese's arguments persuade us that
a person of average intelligence would have to "to guess" at
section 644:11's meaning or the scope of the conduct it prohibits,
Councilman, 418 F.3d at 84.
careless false statement, even if he does not have the intent
required to render him liable." Alvarez did not involve a
vagueness challenge, but there is some force to the point. Even
if, however, the mens rea requirement standing alone might be
insufficient to provide constitutionally adequate notice, it
nevertheless does assist in ameliorating notice concerns here.
Similarly, citing Smith, 415 U.S. at 580, and Ashton, 384
U.S. at 200, Frese argues that a mens rea requirement cannot cure
an inherently vague statute. Again, while this may be true, our
analysis does not rely solely on section 644:11's mens rea
component, and we have no trouble finding that the knowledge
requirement -- considered in combination with the other factors
discussed -- helps to limit vagueness concerns. See United States
v. Nieves-Castano, 480 F.3d 597, 603 (1st Cir. 2007) (explaining
that the statute's "scienter requirement ameliorates any vagueness
concerns" (citing Hill, 530 U.S. at 732)).
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3. "Hybrid" Vagueness Claim
Having addressed Frese's facial claims, we return
briefly to what he characterizes as his "hybrid" vagueness claim.
Frese asserts that section 644:11 "is unconstitutionally vague,
both on its face and as applied in the context of New Hampshire's
system for prosecuting [c]lass B misdemeanors." (Emphasis added).
Frese characterizes this second claim as a "hybrid vagueness
claim": "it is 'facial' in the sense that it is not limited to
Frese's particular case, but it is 'as applied' in the sense that
it does not seek to strike [section 644:11] outside the context of
New Hampshire's particular misdemeanor process." The district
court dismissed Frese's "hybrid" claim for the same reasons that
it dismissed his facial claim.
As we discussed above, the New Hampshire statute is not
unconstitutionally vague, because it gives meaningful enforcement
guidelines and adequate notice. Nor does consideration of the New
Hampshire prosecution context alter that conclusion -- regardless
of the enforcement setting, the statute is not standardless and
provides adequate guidelines for enforcement. See supra note 5.
His hybrid claim therefore falls with his facial claim.
III.
Assuming Frese's 2018 prosecution to have been brought
without reasonable cause to believe that Frese knew that his speech
had been false, then it was certainly wrongful, as implied by its
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dismissal. But that wrong had little, if anything, to do with
what Frese claims is the statute's vagueness. Certainly "knowing"
an assertion to be false is not a vague element. Nor, for the
foregoing reasons, do we think that a reasonable person has much
difficulty in ascertaining whether speech subjects a living person
to public hatred, contempt, or ridicule and what a "professional
or social group" is in this context. Accordingly, the district
court's judgment is affirmed.
-Concurring Opinion Follows-
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THOMPSON, Circuit Judge, concurring. I agree with my
colleagues that the precedent by which we are bound, see Garrison
v. Louisiana, 379 U.S. 64, 68-70 (1964),9 and the procedural
posture in which this appeal arises oblige us to reach the above-
reasoned conclusions. I take this opportunity, however, to shine
a light on sweeping concerns and important questions this case
showcases, but upon which its resolution does not now depend. Each
of these concerns and questions, as I'll explain, stem from this
overarching query: Can the continued existence of speech-chilling
criminal defamation laws be reconciled with the democratic ideals
of the First Amendment?
Ours is a country that touts a "profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open." New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964). That commitment may well be
profound; but it is not the whole story. And lately, one needn't
look far for examples of speech curtailed or, by contrast, speech
that seems to be wholly divorced from the truth but goes
unaddressed by the law. When, as has been the case in this country
of late, the truth often seems up for grabs and objectively
accurate facts are tossed aside in favor of alternative versions
that suit a given narrative, drawing the line between truths and
As my colleagues observe, and as Frese concedes, only the
9
Supreme Court can overrule this precedent.
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lies -- and malicious lies at that -- is exceptionally tricky.
But also exceptionally important. And yet, increasingly, whether
and where that line should be drawn as to some speech or other
speech seems to depend on who's holding the pen. The significance
of all this skyrockets when criminalizing this speech is on the
table.
It's at the intersection of history, present day, fact,
and fiction (and everything in between) that today's case arises.
As we know, this is a case about New Hampshire's criminal
defamation statute, which explains that "[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." N.H. Rev. Stat. § 644:11(I).
The troubling seditious-criminal-libel historical
context that underpins a law like this one is well known to First
Amendment scholars, advocates, and jurists -- and perhaps most
deeply felt by those who've had brushes with it. See Garrison,
379 U.S. at 68-70; id. at 79-80 (Black, J., concurring); id. at
80-83 (Douglas, J., concurring); New York Times Co., 376 U.S. at
296-97 (Black, J., concurring); Beauharnais v. Illinois, 343 U.S.
250, 287 (1952) (Jackson, J., dissenting); Abrams v. United States,
250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting) (joined by
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Brandeis, J.).10 I will not explicate the ins and outs of that
history here -- and there is a great deal of important history to
digest. For today's purposes, it suffices to say these laws have
their genesis in undemocratic systems that criminalized any speech
criticizing public officials. True, that is not today's American
system per se. But like it or not, that is where our system's
roots lie, and even in view of the rightly heightened standards we
deploy when reviewing laws that restrict speech, see Nat'l Org.
for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir. 2011), abrogated
on other grounds by Ams. for Prosperity Found. v. Bonta, 141 S.
Ct. 2373 (2021), it is remarkable that we are still confronting
laws criminalizing speech at all.
Perhaps the persistence of these laws owes to society-
at-large's unawareness of or ambivalence to them. It's possible
many believe criminal defamation is basically off the books;
Garrison can be read to have been aimed at accomplishing as much,
at least from a federal standpoint, in that it nixed as
unconstitutional civil and criminal penalties for truthful
statements about public officials, leaving room to sanction only
those statements made with actual malice (knowledge of falsity or
reckless disregard for the truth). See 379 U.S. at 74. But
I urge the curious reader to consult these important cases
10
and the sources upon which they rely.
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persist they do, with many states retaining their criminal
defamation laws.11
And indeed, this is remarkable. Particularly so given
the current political climate in this country, with "truth" at a
premium. It seems to me that if these laws were robustly enforced,
dockets in these states would be positively teeming with
prosecutions. That's not what happens. Why is that? Probably
because there is no readily discernible boundary between what
gossip or loose talk amounts to being criminal and that which does
not. Instead, the boundary emerges case by case, lying solely in
the eye of the charge-bringing beholder -- or the ego of the person
offended or called out by the speech. And this is troubling
because it underscores the simple truth that a criminal defamation
law can be wielded, weaponized by a person who disagrees with
whatever speech has been uttered.12
See, e.g., Idaho Code §§ 18-4801--4809 (2021); Kan. Stat.
11
Ann. § 21-6103 (2021); Mich. Comp. Laws Ann. § 750.370 (2021);
Minn. Stat. Ann. § 609.765 (2021); N.H. Rev. Stat. Ann. § 644:11(2021); N.C. Gen. Stat. Ann. §§ 14-47, 15-168 (2020); N.D. Cent.
Code Ann. § 12.1-15-01 (2021); Okla. Stat. Ann. tit. 21, §§ 771-
774, 776-778 (2021); Utah Code Ann.§ 76-9-404 (2021); Va. Code
Ann. § 18.2-417 (2021); Wis. Stat. Ann. § 942.01 (2021).
I am mindful that not all criminal defamation prosecutions
12
will be successful, and yes, as my colleagues note, supra note 1,
malicious prosecution might in some instances exist as a means to
pursue recourse for wrongful prosecution. But the fact remains
that a great deal of damage could have already been done to the
person targeted by an unsuccessful (or worse, malicious)
prosecution, particularly depending on what exactly was said and
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To those who might disagree, it strikes me as out of
touch with reality to suggest these laws are not being selectively
harnessed or that these laws aren't particularly susceptible to
such use and abuse. See, e.g., Garrison, 379 U.S. at 80-83(Douglas, J., concurring) (warning of the dangers posed by criminal
defamation laws and those laws acting as "instrument[s] of
destruction" for free expression); Gottschalk v. State, 575 P.2d
289, 292 (Alaska 1978) ("It has become clear that the real interest
being protected by criminal defamation statutes is personal
reputation. Whether that purpose justifies use of the criminal
law has been questioned."). And by virtue of their very existence,
criminal defamation laws deter and chill speech -- indeed, their
existence represents a looming threat of criminal prosecution,
which of course will cause many to think twice before speaking
out. This is all the more so when, as in New Hampshire, a plea
deal or successful criminal defamation prosecution would show up
on a background check (and remember, criminal defamation
defendants have no right to trial by jury and don't get court-
appointed counsel). But "[f]ining [people] or sending them to
jail for criticizing public officials not only jeopardizes the
free, open public discussion which our Constitution guarantees,
done in the course of that prosecution -- that bell, as they say,
cannot be unrung.
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but can wholly stifle it." Garrison, 379 U.S. at 80 (Black, J.,
concurring).
It is not lost on me that proponents of criminal
defamation laws see utility in having them as an alternative to
civil suits to be deployed when, for example, an alleged defamer
might be what we refer to as "judgment-proof," i.e., even if a
favorable verdict resulted from a civil defamation suit, the
defamer wouldn't have the cash available to cover any damages that
were assessed. This assumes money damages are the best relief for
a victim of defamation, and I cannot abide that premise. Does it
not also invite criminal prosecution of people with less means?
And critically, having a criminal defamation route enables an end-
run around the important constitutional restrictions imposed in
civil defamation cases. And I haven't spied any requirement that,
to bring a criminal prosecution, one must demonstrate the criminal
charge is being pursued because a civil suit just wouldn't cut it
for some legitimate reason or another. This brings me back to the
reality that criminal defamation laws are all too easily wielded
as a silencing threat of punishment for speech.
By my lights, criminal defamation laws -- even the ones
that require knowledge of the falsity of the speech -- simply
cannot be reconciled with our democratic ideals of robust debate
and uninhibited free speech. See id. at 79-80 (Black, J.,
concurring) ("[T]he Court is mistaken if it thinks that requiring
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proof that statements were 'malicious' or 'defamatory' will really
create any substantial hurdle to block public officials from
punishing those who criticize the way they conduct their office.
Indeed, 'malicious,' 'seditious,' and other such evil-sounding
words often have been invoked to punish people for expressing their
views on public affairs.").13 And so I echo the concern voiced by
Justice Douglas in Garrison, a concern as valid today as it was
nearly sixty years ago: "It is disquieting to know that one of
[seditious libel's] instruments of destruction is abroad in the
land today." 379 U.S. at 80-83 (Douglas, J., concurring).
13Without touching on criminal defamation laws specifically,
the Court in United States v. Alvarez, striking down part of the
Stolen Valor Act, generally pointed to sweeping dangers posed by
criminal restrictions on speech regarding matters of public
concern. See 567 U.S. 709, 723 (2012) ("Permitting the government
to decree this speech to be a criminal offense, whether shouted
from the rooftops or made in a barely audible whisper, would
endorse government authority to compile a list of subjects about
which false statements are punishable. That governmental power
has no clear limiting principle. Our constitutional tradition
stands against the idea that we need Oceania's Ministry of
Truth."); id. at 736-37 (Breyer, J., concurring) (joined by Kagan,
J.) (". . . [T]here remains a risk of chilling that is not
completely eliminated by mens rea requirements; a speaker might
still be worried about being prosecuted for a careless false
statement, even if he does not have the intent required to render
him liable. And so the prohibition may be applied where it should
not be applied, for example, to bar stool braggadocio or, in the
political arena, subtly but selectively to speakers that the
Government does not like.").
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