New Hampshire’s Criminal Defamation Statute, RSA 644:11, Declared Unconstitutional under the First and Fourteenth Amendment to the U.S Constitution

Frese v MacDonald
U.S. District Court for District of New Hampshire Docket No. 18-cv-1180-JL
Friday, October 25, 2019

The Plaintiff has been twice prosecuted for criminal defamation under New Hampshire’s criminal defamation statute. That statute, RSA 644:11, provides: “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.”

In this action, the Plaintiff claimed that he feared future arrests or prosecutions for speech criticizing law enforcement and other public officials and sought a pre-enforcement challenge the statute, alleging that it violates the First and Fourteenth Amendments to the U.S. Constitution. 

The first basis of the Plaintiff’s challenge was that the statute was void for vagueness - the criminal defamation statute arguably fails to provide “people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” and what speech is acceptable. The Court agreed, stating “[e]ven when construing the criminal defamation statute in line with its ‘knowing’ scienter requirement, the statute may still not adequately delineate what speech must be known to have the tendency ‘to expose any other living person to public hatred, contempt or ridicule.’”

The Court also agreed with the Plaintiff’s second challenge, that that the criminal defamation statute may be prone to arbitrary enforcement largely on the basis of “New Hampshire's distinctive criminal process [which] may exacerbate the potential for arbitrary or selective prosecutions.” The “distinctive criminal process” referred to by the Court is “New Hampshire’s municipal police departments … ability to prosecute misdemeanors like criminal defamation without the oversight of a licensed, state-sanctioned attorney.” “[T]he discretion afforded to police departments to prosecute misdemeanors, taken together with the criminal defamation statute’s sweeping language, may produce more unpredictability and arbitrariness than the Fourteenth Amendment’s Due Process Clause permits.”

Note: This case is still pending trial at the District Court, and the final result may be different than the preliminary order.


Additional Information: 

Practice Pointer:  Law Enforcement agencies should consider RSA 644:11 unconstitutional unless or until the District Court orders otherwise. In addition, law enforcement agencies should take note that the court may determine police-prosecutors, who work for police departments, may be held to a different standard, giving them greater deference, than attorney-prosecutors, who have greater independence by virtue of their appointment by select boards pursuant to RSA 41:10-a and formal legal training.