Convicted for speech

The following editorial appeared in Monday's Washington Post:

One could be forgiven for thinking that the day was long past when an American could be locked up for publishing an untruth about a public official. But recently, a jury in Kansas City, Kan., convicted a newspaper, its publisher and its editor for the crime of libeling the mayor. The publication's behavior appears to have been irresponsible, and a civil libel suit seeking damages might well have been appropriate. But the idea of criminally prosecuting speech that does not endanger anyone is a creature of an earlier time. Though prosecutions under criminal libel laws are exceedingly rare, several states have such laws on the books. It is past time for them to go.

The Kansas case began when a gadfly tabloid called the New Observer published a series of articles alleging that Carol Marinovich, mayor of the unified government of Kansas City and neighboring Wyandotte County, was violating the law's residency requirement by not living in town. This was false and verifiably so. And had Ms. Marinovich sued, she might well have won a judgment. Instead, however, a politically allied district attorney brought a criminal case under Kansas' rarely used criminal defamation law -- and last month a jury convicted on several misdemeanor accounts.

Newspapers shouldn't knowingly publish harmful falsehoods; neither should anyone else. But the criminal law is the wrong vehicle to resolve even the worst abuses of this type. Criminal libel laws were designed originally as a way to prevent dueling; certain speech, even if true, was regarded as so inflammatory that men of honor would feel duty-bound to respond violently unless the state took action in their place. Preventing dueling is hardly a needed function these days, and in any event, the Supreme Court has insisted both that truth is an absolute defense against any libel charge and that good-faith errors may not constitute libel. Civil suits provide ample redress for those public figures who can show, within the exacting standards of the Supreme Court's case law, that they have been defamed. Additional criminal penalties can only serve as means for states to intimidate the press.

Prosecutions such as this are particularly anomalous given the fact that the court has broadly protected even categories of speech that may be truly dangerous. Urging violence can only be prosecuted if it is likely to produce lawless action imminently, for example, and threats in public discourse have to be clear before they are beyond protection under the First Amendment. It seems wrong, given this, to permit prosecutions for speech that does harm at worst to the reputation of individuals who have alternative remedies at their disposal.