Trying to Make Speech a Crime   

California rejects an attempt to punish those who sell phony stories to tabloids.

Mention the word "libel" to most journalists, and it conjures up nightmare scenarios of protracted civil suits launched by powerful plaintiffs, culminating in big money judgments rendered by resentful juries against news organizations.

But that's only part of the story. Lurking in the statute books of more than half the states are laws that make it a crime to publish or broadcast false and defamatory statements. Penalties include fines, jail time or both.

Historically, these statutes were intended to prevent public disorder by punishing reckless falsehoods that might incite
duels, riots or other acts of revenge. They also tried to ensure that only "right-thinking" people expressed critical opinions about the government by allowing libel defendants to cite truth as a defense only if they could also show that they acted with "good motives and justifiable ends."

Most of these statutes are clearly unconstitutional by modern standards. A 1964 U.S. Supreme Court case, Garrison vs. Louisiana , decided the same year as the landmark New York Times vs. Sullivan, held that truthful criticism of public officials is absolutely protected from criminal as well as civil defamation charges. But the court did not address the question of whether criminal libel was unconstitutional in purely private defamation actions.

In the wake of Garrison , several state legislatures repealed criminal defamation laws, and some state courts struck them down. But Montana's law stayed on the books. And so in 1994, when Richard Helfrich was prosecuted for stalking after he distributed about 100 fliers in the Butte area alleging that another man had committed a crime, he was also charged with violation of the criminal defamation law.

Helfrich was convicted of both charges. On appeal, he argued that the statute was unconstitutional because it allowed him to be convicted of a crime based on a standard less rigorous than in a civil libel suit. The Montana law permitted him to assert truth as a defense, but only if he could show he had communicated the information with "good motives and for justifiable ends."

The Montana Supreme Court agreed with Helfrich. It ruled unanimously that the state legislature could not dilute the constitutional requirement that truth is an absolute defense to any libel claim by requiring the speaker to demonstrate that he had good motives for saying what he did. The court didn't even consider whether what Helfrich had written was true. It struck down the statute as unconstitutional on its face.

While the Montana Supreme Court was eliminating one criminal libel statute, the California legislature was fashioning a new one to replace criminal libel and slander statutes repealed in 1986 and 1991. Democratic Assemblyman Charles Calderon introduced a bill that would make it a crime – punishable by up to a year in prison, a fine ranging from $100 to $10,000, or both – to make false statements to for-profit media organizations in return for "valuable consideration." The media organizations could be charged with being accessories to criminal defamation if the prosecution could show that they had a "pattern or practice" of paying for "malicious false defamatory statements."

Supporters claimed that the law was necessary to rein in "disreputable publications" that pay for stories, in the process encouraging people to fabricate or embellish tales to make them more sensational – and more marketable. They argued that civil penalties alone weren't enough to stop media organizations that consider damage awards to be just another cost of doing business.

Hoping to head off a constitutional challenge, they included a provision permitting defendants to raise the same defenses as in civil cases, including truth as an absolute defense against prosecution.

But that wasn't enough to save the measure. The Associated Press reported that a Democratic assemblyman from Los Angeles denounced the bill as a boon to "whiny celebrities who have squads of lawyers," while a Republican said that the proposal was tantamount to burning down a barn to eliminate rat droppings.

Several legislators argued that they simply had no business making speech a crime in a free society. The bill was defeated, 50-24.

Journalists have become smug about First Amendment protection. Whatever concerns we may have about civil libel suits, the possibility of being jailed for what we publish or broadcast never occurs to most of us. We assume that could only happen in countries like Singapore or Romania, where freedom of speech and thought often take a back seat to other agendas.

But as hostility toward the tabloid press mounts, the Montana and California experiences remind us that we should never assume that it can't happen here. l