Kenya knows best: Let's not "open up" criminal libel

In one campaign-trail declaration, President Trump said he would “open up” defamation law, increasing media liability exposure.  The Trumps know a thing or two about defamation law.  Just this past week, Melania Trump favorably settled a claim against a blogger who had written that she worked as an escort.

With President Trump continuing to denounce “dishonest” media, there has been much hand-wringing in the media defense bar over the vitality of defensive legal doctrines in civil defamation.  There has been less talk about the possibility of a criminal defamation revival.  Criminal defamation was at issue in a decision of the High Court of Kenya on February 7.  The court threw out a criminal conviction for defamation, ruling the applicable penal statute incompatible with the freedom of expression.  The decision can be downloaded from Live Law India.

Commentators have aptly pointed out that defamation law is state tort law, so the President of our federation of states has limited power to effect civil defamation reform.  But often overlooked is the possibility “to open up” criminal defamation law at both state and federal levels.  Criminal defamation imposes the threat of arrest and prosecution for the same libel or slander against a person that civil defamation means to redress.  Because the “plaintiff” in a criminal case is the state, or the people, rather than the individual claiming injury, criminal defamation is highly disproportionately invoked when the alleged victim is a public official.

Because criminal defamation implicates the power of the state to condemn spoken or written words, the First Amendment freedom of expression is powerfully implicated.  The use of criminal defamation law disproportionately to silence criticism of public officials implicates freedom of expression all the more, because core political speech is placed at risk.  For this reason, human rights law around the world strongly disfavors criminal defamation.  NGOs from the Reporters Committee for Freedom of the Press in the United States to the global Committee to Protect Journalists and International Press Institute maintain flatly that criminal defamation is irreconcilable with the freedom of expression.

The U.S. Supreme Court has not gone so far, but has extended to criminal defamation defendants the same substantial constitutional advantages that First Amendment law affords to defendants in civil actions.  Criminal defamation has been rejected in many states, whether by state constitutional ruling, statutory repeal, or just failure to prosecute.

A problem with criminal defamation at the federal level is that when the alleged victim of defamation is a high-ranking federal official—such as the President of the United States—there is only a fuzzy line between criminal defamation and sedition.  The regulation of sedition is the province of the federal government, and federal law against sedition dates back to the Congress of 1798.  Like regulation of criminal defamation, the criminalization of seditious expression is limited by the First Amendment, with standards such as the not-precisely-named “clear and present danger” doctrine.  Also like regulation of criminal defamation, the criminalization of seditious expression is not unconstitutional per se.  Fuzzy First Amendment limitations leave room for interpretation.  If criminal defamation is viewed interchangeably with sedition, based on the identity of the victim, there might be room to expand criminal prosecution of either.

The decision in Kenya is a reminder that criminal defamation is out of step with contemporary human rights norms, especially when the machinery of the state is used to protect public officials and their powerful allies.  The prosecutions in Kenya arose over a long running feud between the defendants and a complainant-lawyer.  Rightly or wrongly, the defendants impugned the integrity of the lawyer, who brought civil suit.  The defendants defied a judicial restraining order.  Ultimately the lawyer complained to police.  

The penal statute on defamation authorized imprisonment for up to two years.  Referencing the European human rights principle of proportionality, the High Court held in essence that criminal sanction is a disproportionate response to injurious expression.  Civil remedies are instead appropriate to protect reputation.  Criminal sanction, the court concluded, should be reserved for war propaganda, incitement to violence, hate speech, or advocacy of hatred based on ethnicity.  The result should not be read to condone the defendants’ conduct, nor to condemn the complainant.

Whether or not we need “to open up” defamation liability, there is a case to be made that the defense-friendly developments in U.S. defamation law in the late 20th century were excessive.  Our constitutional norms over-protect free expression, well beyond the proportionality principle, to the diminution of competing personal rights.

But the imposition of criminal sanction for speech is another matter.  Criminal defamation cases in the United States often implicate the reputations of police officers, politicians, or other persons of power or high profile, indicating that criminal defamation is a power too readily perverted to authoritarian ends.