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Rethinking Criminal Libel: an Empirical Study David Pritchard a a Department of Journalism and Mass Communication, University of Wisconsin-Milwaukee

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This article was downloaded by: [Pritchard, David] On: 23 June 2009 Access details: Access Details: [subscription number 912649897] Publisher Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Communication Law and Policy Publication details, including instructions for authors and subscription information: http://www.informaworld.com/smpp/title~content=t775653632 Rethinking Criminal Libel: An Empirical Study David Pritchard a a Department of Journalism and Mass Communication, University of Wisconsin-Milwaukee, Online Publication Date: 01 June 2009 To cite this Article Pritchard, David(2009)'Rethinking Criminal Libel: An Empirical Study',Communication Law and Policy,14:3,303 — 339 To link to this Article: DOI: 10.1080/10811680903000989 URL: http://dx.doi.org/10.1080/10811680903000989 PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: http://www.informaworld.com/terms-and-conditions-of-access.pdf This article may be used for research, teaching and private study purposes. Any substantial or systematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material. 14 COMM.L.&POL’Y 303–339 (2009) Copyright c Taylor & Francis Group, LLC ISSN: 1081-1680 print / 1532-6926 online DOI: 10.1080/10811680903000989 RETHINKING CRIMINAL LIBEL: AN EMPIRICAL STUDY ∗ DAVID PRITCHARD The prevailing view of criminal libel among communication law schol- ars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defama- tion can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, sug- gest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically mo- tivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the repu- tations of private figures in cases that have nothing to do with public issues. Criminal libel1 is the black sheep of communication law2 — so much so that some recent communication law textbooks do not even mention 3 Downloaded By: [Pritchard, David] At: 17:01 23 June 2009 it. Authors who do refer to criminal libel frequently disparage it as ∗Professor, Department of Journalism and Mass Communication, University of Wisconsin-Milwaukee. The author thanks Andrew Pease for research assis- tance and the Greater Milwaukee Foundation’s Journal Foundation/Walter Jay and Clara Charlotte Damm Fund for financial support. 1This article uses the term “criminal libel,” though some statutes and scholars use the term “criminal defamation.” The two terms are considered synonymous for purposes of this article. 2The term “black sheep” refers to “the least reputable member of a group; a disgrace.” CHRISTINE AMMER,THE AMERICAN HERITAGE DICTIONARY OF IDIOMS 64 (1997). 3See, e.g.,RANDY BOBBITT,EXPLORING COMMUNICATION LAW:ASOCRATIC APPROACH (2008); ROBERT TRAGER,JOSEPH RUSSOMANNO &SUSAN DENTE ROSS,THE LAW OF JOURNALISM &MASS COMMUNICATION (2007). 304 D. PRITCHARD “ancient,”4 “archaic,”5 “antiquated,”6 “obsolete,”7 “outdated,”8 and “un- democratic.”9 Prosecutions are thought to be extremely rare,10 a state of affairs that provides solace to free-speech advocates who believe that the principal use of criminal libel is to punish political dissent.11 The presumed link between criminal libel and suppression of political speech leads to frequent claims that criminal libel prosecutions violate the First Amendment.12 Constitutional concerns aside, it is often asserted that 4Wendy Tannenbaum, Critics Question Constitutionality of Criminal Libel Laws,27 NEWS MEDIA & THE L. 37, 38 (Winter 2003) (“the use of an ancient law to punish mere insults”). 5Bonnie Bressers, The Dangers of Criminalizing Speech,91QUILL, Mar. 2003, at 8 (Criminal defamation statutes are “often clearly archaic.”); Criminal Libel Develop- ments: 2007 Update,MEDIA L. RESOURCE CENTER BULL., Dec. 2007 at 123 (“These statutes are a mix of archaic laws and others that have been revised to require ac- tual malice.”); Editorial, Nasty? Yes. Criminal? No., L.A. TIMES, Dec. 11, 2008, at A24 (“Archaic laws in several states also allow libel to be prosecuted as a criminal offense.”). 6Jane Kirtley, Overkill in Kansas, 24 AM.JOURNALISM REV. 74, 74 (Sept. 2002) (“Crim- inal libel is an antiquated legal concept.”). 7WAYNE OVERBECK,MAJOR PRINCIPLES OF MEDIA LAW 160 (2001) (“The reason we can touch criminal libel so lightly in a text such as this is that it has become an obsolete legal action.”). 8Tannenbaum, supra note 4, at 38 (“Media advocates and legal experts have criticized laws that punish people for speech, calling the statutes outdated and undemocratic.”). 9Id. 10See, e.g.,KENT R. MIDDLETON &WILLIAM E. LEE,THE LAW OF PUBLIC COMMUNI- CATION 97 (7th ed. 2009) (“There might not have been a successful prosecution in the last thirty-five years.”); 1 ROBERT D. SACK,SACK ON DEFAMATION:LIBEL,SLANDER, AND RELATED PROBLEMS §3.2, 3-4 n.11 (3d ed. 2008) (“Criminal libel lives on in American law, but barely.”); PAUL SIEGEL,COMMUNICATION LAW IN AMERICA 98 (2d ed. 2008) (“Sev- enteen states still have criminal libel laws on the books, though they are rarely used.”); THOMAS L. TEDFORD &DALE A. HERBECK,FREEDOM OF SPEECH IN THE UNITED STATES Downloaded By: [Pritchard, David] At: 17:01 23 June 2009 81 (5th ed. 2005) (“Not all states have criminal libel laws, and nowadays those that do rarely invoke them.”); Salil K. Mehra, Post a Message and Go to Jail: Criminalizing Internet Libel in Japan and the United States,78U.COLO.L.REV. 767, 768 (2007) (Criminal libel is “a dead-letter office in the law in the United States.”); Clive Walker, International and Comparative Perspectives on Defamation, Free Speech, and Privacy: Reforming the Crime of Libel, 50 N.Y.L. SCH.L.REV. 169, 195 (2005) (“Criminal libel has been largely, but not completely, curtailed in the United States.”). 11See, e.g.,DON R. PEMBER &CLAY CALVERT,MASS MEDIA LAW 234 (2009/2010 ed.) (“Most criminal libel prosecutions are generated for political reasons.”); Dan Dischof, A Renaissance in Speech Crime Prosecutions, NEWS MEDIA & THE L., Spring 2001, at 14 (“Many times, the targets of prosecutors’ charges are their political opponents.”). 12See, e.g., Gregory J. Lisby, No Place in the Law: The Ignominy of Criminal Li- bel in American Jurisprudence,9COMM.L.&POL’Y 433, 487 (2004) (“The Supreme Court must act. Until it does, criminal libel will continue to hang on the face of the First Amendment as spittle does from the mouth of a baby, who is not ma- ture enough intellectually to know any better or mature enough physically to wipe it off.”); Editorial, EDITOR &PUBLISHER, Dec. 9, 2002, at 10 (“Criminal-libel statutes no longer protect offended honor — they dishonor our nation’s bedrock principles of free speech and free press.”); Stacey Laskin, Absence of Malice? Criminal Libel Statutes Still Threaten Free Speech,NEWS MEDIA & THE L., Spring 2008, at 28; Ken Paul- son, Jailed for Speech: Criminal Libel is an Old — and Bad — Idea, Jan. 18, 2004, RETHINKING CRIMINAL LIBEL 305 criminal libel serves no legitimate purpose because people who have been defamed can file civil lawsuits alleging libel.13 In a nutshell, that is the scholarly consensus about criminal libel in the United States: very few prosecutions, most of them about politics or public issues, all of them of dubious constitutionality, and none of them necessary because victims of defamation can sue for civil libel. This article questions the validity of the scholarly consensus. It re- ports the results of a page-by-page review of trial-court files from sixty- one criminal libel prosecutions in Wisconsin from 1991 through 2007. The study documents a reality of criminal libel that is stunningly differ- ent from the prevailing view. Among other things, the Wisconsin data show: r Criminal libel is prosecuted far more often than communication law textbooks assert. r Most criminal libel prosecutions have nothing to do with political or public issues. r On the rare occasions when criminal libel is used in an attempt to punish dissent, First Amendment arguments by defendants tend to be successful. r Most criminal libel cases never reach an appellate court or attract coverage from major newspapers, which means that they are invis- ible to scholars who rely on computer databases of appellate court decisions and news coverage. Overall, the Wisconsin data suggest that criminal libel can be, and often is, a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues. This is especially true when a defamed person Downloaded By: [Pritchard, David] At: 17:01 23 June 2009 cannot afford to hire a lawyer to file a lawsuit for civil libel or when a potential defendant is so poor that a plaintiff’s lawyer working on a contingent-fee basis would decline to take the case because the lawyer would see no realistic hope of collecting any damages a court might award.
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