From AJR,   September 2002

Overkill in Kansas   

The editor and publisher of a newspaper face jail time for criminal defamation.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

The editor and publisher of the New Observer, a free-circulation newspaper based in Kansas City, Kansas, were convicted of criminal defamation in mid-July. They could be fined and sent to jail for a year. Their offense? Reporting a rumor that Mayor Carol Marinovich and her husband, a judge, did not reside, as required by law, in Wyandotte County where they hold office, but in tonier Johnson County nearby.

The accusation was another salvo in a long-running feud between the paper and Marinovich. The mayor and her husband denied the charge. In January 2001, David Carson and Edward H. Powers Jr., the two now-disbarred attorneys who edit the New Observer, ran a half-hearted apology, conceding that the couple did not live at the address originally alleged but insisting that numerous sightings strongly suggested that they maintained a home in Johnson County.

Marinovich went on to win the primary that February and later the general election. But District Attorney Nick Tomasic filed charges against Carson and Powers anyway. A presiding judge wouldn't allow Tomasic and his staff to prosecute because of their "history of contentiousness" with the defendants. So David Farris, a private attorney, was tapped to act as special prosecutor in the case. According to the Associated Press, Farris told the jury in his closing argument that "you can't print a lie. That's a crime in the state of Kansas and it's a misdemeanor--some of us wish it was a felony."

The Kansas law says it is a crime to communicate information "tending to expose another living person to public hatred, contempt or ridicule" or "tending to deprive such person of the benefits of public confidence and social acceptance," provided that the speaker knows that the information is false or acts with "actual malice"--reckless disregard for the truth. Proof of actual malice is required by the U.S. Supreme Court's 1964 decision in Garrison vs. Louisiana, which struck down the Louisiana criminal defamation law.

As Justice William Brennan observed in his opinion in Garrison, criminal libel is an antiquated legal concept going back to the days when, if someone maligned you, your impulse would be to challenge him to a duel rather than sue him in civil court and drive him into bankruptcy. Insults were believed to be so incendiary that they could incite the uneducated masses to take up arms and riot in the streets. To provide prominent individuals with a way, short of murder, to get satisfaction when they were disparaged--and to keep the mob at bay--legislatures adopted criminal libel statutes. Nineteen states still have them on the books.

Brennan warned that criminal libel laws are constitutional only if truthful criticism of public officials remains protected. The First Amendment requires that truth must be a defense to any criminal libel charge, even if the statements were made with ill will or bad motives.

But Marinovich and her cohorts contend that the allegations published in the New Observer are false. So why shouldn't Carson and Powers go to jail for publishing them? What justification can there be to protect those who publish a lie?

A former district attorney who prosecuted a criminal libel case in the mid-1990s probably would say there is none. She told the Kansas City Star that the jury's verdict was a "victory for the general public" and for news organizations that "try to remain credible." We hear the same excuses from thin-skinned officials in places like Zimbabwe and Kazakhstan, who can't stand criticism and use criminal libel laws to bludgeon dissenters into silence.

But as Brennan wrote in New York Times Co. vs. Sullivan, "erroneous statement is inevitable in free debate." In the United States, we tolerate false statements as the price of robust discussion about public officials. Civil lawsuits offer an adequate remedy for those whose reputations are genuinely harmed, as long as they can also prove that the publication was made with actual malice.

At least, that's sufficient in most states. But not in Kansas. Perhaps it has something to do with history.

On the eve of the Civil War, the tract of land that would become the state of Kansas was torn apart by violence. Repeated clashes between settlers who disagreed over whether this part of the Louisiana Territory should be admitted to the Union as a slave state or a free state earned it the nickname "Bleeding Kansas."

Nearly a century-and-a-half later, one would think that the citizens of Kansas wouldn't need a criminal libel law to settle their disputes without shooting each other. But apparently not. How else can you explain the state's decision to prosecute two journalists for criminal libel?