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Criminal libel is a libel punishable criminally. It consists of a defamation of an individual (or group) made public by a printing or writing. The defamation must tend to excite a breach of the peace or damage the individual (or group) in reference to his character, reputation, or credit.
At common law, libel was recognized as a criminal misdemeanor as well as an individual injury justifying damages (a tort). Prosecutions of the offense had three goals: protection of government from seditious statements capable of weakening popular support and causing insurrection; reinforcement of public morals by requiring a ‘‘decent’’ mode of community discourse; and protection of the individual from writings likely to hold him up to hatred, contempt, or ridicule. The protection of the individual, a goal that is generally left to tort law, was justified by the criminal law’s responsibility for outlawing statements likely to provoke breaches of peace.
Although contemporary criminal libel prosecutions are rare, development of the law in this area exposes a society’s sense of the proper relationship between citizen and state as well as the proper balance between the community’s need for avenues of communication and that for decency in discourse. The law of libel establishes the outer boundary set by interests in community and individual dignity on the processes of reason furthered by robust discussion. Libel, thus, is a perennial problem for a society that prizes uninhibited debate.
The History of Criminal Libel
The Ecclesiastical Courts
After the Norman conquest of England, William I established church courts that sentenced to public penance those found guilty of the canon-law crime of saying or writing a false allegation. The sinner, wrapped in a white shroud, holding a lighted candle, and kneeling, would acknowledge his ‘‘false witness’’ in the presence of the priest and parish wardens and beg the pardon of the injured party (Eldredge, p. 5). While this remedy gave the injured party vindication, its primary focus was absolution of the sinner.
By the sixteenth century, the king’s courts, in efforts to wrest power from the church, competed increasingly with ecclesiastical courts for jurisdiction over defamation cases. Development of a mercantile class more concerned with the monetary impact of a defamatory statement than with saving the offender’s soul further accelerated replacement of church courts by civil courts.
The Star Chamber
The invention of the printing press created a set of circumstances that heightened fear of seditious libel. The ponderous political folio written for the learned and given limited circulation in manuscript form was succeeded by the easily reproduced political tract and fly sheet addressed to the multitude. Consequently, in the early seventeenth century the Court of the Star Chamber, a court established to affirm and protect royal authority, began to punish political libel as a breach of the peace. Any criticism that the court felt was capable of causing the public to hold the government in disrepute constituted an offense. Since any such libel was thought to undermine public peace or legitimate government, its truth or falsity was immaterial.
In fact, ‘‘the greater the truth the greater the libel,’’ since exposure of the truth was more likely to lead to the government’s downfall or a breach of the peace than would false statements (Schofield, p. 516). To assure the conviction of governmental critics, all decisions of the Star Chamber were rendered, without aid of a jury, by officials of the very government being criticized. Guilt required no proof of any intent beyond intent to publish. Criminal libel, in essence, was a crime of strict liability.
To protect the public peace, the Star Chamber also recognized the libel of a private individual as deserving criminal punishment. It was feared that individual libels would provoke duels and family revenge, thus leading to bloodshed. A legal remedy was created to deter such behavior.
Development in The Common Law Courts
In the late seventeenth century, after the abolition of the Star Chamber by Parliament, jurisdiction over criminal libel prosecutions was assumed by the common law courts. The law applied by the latter, however, was for the most part that earlier shaped in the Star Chamber. Typically, the legal system punishes criminally only the worst and most extreme forms of behavior but imposes civil damages on individuals for a wide range of less injurious conduct. The law of criminal libel reversed this norm. No tort cause of action exists for a libelous statement which is true, which libels only the dead, which is expressed only to the libeled individual, or which refers to a group so large that no individual member may justly feel tainted. In each of these situations, however, penalties for criminal libel existed at common law. The history of the Star Chamber, with its focus on preventing breaches of the peace and displays of disrespect toward the government, explains this aberration.
Assumption of jurisdiction over criminal libel by the common law courts nevertheless produced important consequences. Although prosecution for criminal libel remained a potent weapon of political oppression, the jury system developed as a curb on its abuse. Free-press proponents argued that the jury, in addition to finding fact, should decide the legal question of whether the writing constituted a libel. After a bitter struggle, this view was adopted by the Libel Act, 1792, 32 Geo. 3, c. 6o (Great Britain). Thereafter, by returning a verdict of not guilty, a jury could indicate indirectly its belief in the truth of the defamatory statement. Not until 1842, however, was evidence of truth expressly made admissible at trial in England (Libel Act, 1843, 6 & 7 Vict., c. 96, § 6 (Great Britain)).
Development of The Law in The United States
The Use of Criminal Libel
Following the English example, the American Sedition Act of 1798, ch. 74, 1 Stat. 596, criminalized the publication of anything ‘‘false, scandalous and malicious’’ against the administration, Congress, or the President ‘‘with intent to defame . . . or to bring them . . . into contempt or disrepute . . . or to stir up sedition within the United States.’’ Adverse public reaction to the statute led President Thomas Jefferson to pardon all convicted persons and Congress to pass statutes reimbursing all fines paid. Since that time, seditious libel has had little overt recognition in American jurisprudence. Statutory control of speech affecting government generally has been phrased in nonlibel terms.
Criminal libel statutes have wavered between an emphasis on the reputational injury that libelous statements create and the breach of the peace they threaten. The concern with breach of the peace, however, is more one of form than of substance, for courts have not required proof that the alleged libel was in fact likely to provoke a breach of peace. The public’s general acceptance of the rule of law as a substitute for private revenge has significantly decreased the credibility of a ‘‘maintenance of peace’’ justification for prosecuting private defamation as a crime. Yet, the criminal libel law’s historic peacekeeping function explains some of its current features, such as the lack of any requirement that anyone other than the injured party be aware of the libelous remark.
Two major defenses to a defamation prosecution have developed: privilege and truth. Absolute and conditional privileges have evolved to protect societal values of discourse and communication. Absolute privileges prohibit prosecutions regardless of malice and generally are limited to official participants in the process of government, such as judges, legislators, and high public officials. The privilege is grounded on the belief that the public benefits by having officials at liberty to exercise their function with independence and without fear of litigation. A conditional privilege exists when the defendant publishes his statement to fulfill a public or private duty to speak, whether the duty is legally based (such as reporting a crime) or only morally grounded (such as answering a question of a business associate). Conditional privilege includes statements made to protect one’s own legitimate interests. Such privileges, however, are vitiated by proof of publication with malice.
Although truth was not a defense in English common law, it has been accepted as such by most American states through judicial decision, statute, or state constitutional provision. Truth, under these provisions, usually has to be accompanied by good motives, however, before the defense is complete.
A Concern for Group Libel
Public concern with libel has broadened from protection of individual reputation to include protection of respectful and tolerant discourse within the community. Twentieth-century history demonstrated that the poisonous atmosphere of the easy lie infects and degrades an entire society.
Yet, in spite of the group defamation tactics used by fascist organizations during the 1930s and 1940s, the common law tort of libel barred suit by any member of a defamed group who could not prove individual tainting and injury. Words against an indeterminate class, such as a race, were to be discounted by the hearer according to the size of the disparaged group. Discounting, however, presumes a rational hearer; group defamation often occurs in nonrational settings. The ineffectiveness of traditional tort law in combating the group libeler led many states to enact criminal laws prohibiting communications that were abusive, offensive, or derogative to a group or that tended to arouse public contempt, prejudice, or hatred toward a group.
In 1952 the U.S. Supreme Court upheld an Illinois statute criminalizing group libel (Beauharnais v. Illinois, 343 U.S. 250 (1952)). The Illinois legislature, wrote the Court, could reasonably believe group libel would jeopardize public peace. Group libel statutes have also been defended by some as a protection of pluralistic forces within a democratic society and of the individual members whose status derives from group affiliations. These laws, it is argued, protect the tone of society or the style and quality of life.
The Constitutional Protection of Freedom of Expression
The Development of New Doctrine
Before 1964 the Supreme Court largely avoided the dilemma between First Amendment (freedom of speech) and decency concerns. Libelous statements were simply excluded from First Amendment protection, for they ‘‘by their very utterance inflict injury or tend to incite an immediate breach of the peace’’ (Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572 (1942)).
In 1964, however, the Supreme Court acknowledged that civil suits for defamation could have an adverse impact on First Amendment values (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). The Court held that freedom of the press prohibited a public official from recovering tort damages for a defamatory falsehood relating to his official conduct without proof that the statement was made with ‘‘actual malice,’’ defined as knowledge that the statement was false or as reckless disregard of whether it was false.
The Court equated libel suits by public officials with actions for seditious libel, and such actions were perceived as destructive of the public dialogue necessary for popular sovereignty. Critical speech must be protected if frank and forceful judgments are to be expressed. Accurate information is valued; consequently, truth must always be a defense from liability. The Court reasoned that although falsity has no value in a system of free expression, the difficulty and expense of proving truth, coupled with the uncertainty of the jury process, might cause critics to exercise caution at the expense of free debate. Falsehoods are protected only to avoid chilling potentially accurate expression. Intentional falsehoods, however, lack any redeeming social importance. Consequently, statements known or believed false by their utterer could give rise to liability. In a later decision, Garrison v. Louisiana, 379 U.S. 64 (1964), the Court extended to criminal libel the protections of its New York Times decision.
In 1967 the Supreme Court further expanded this doctrine by protecting the press against civil libel actions brought by prominent public figures (Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)). Although such plaintiffs were not public officials, the Justices recognized that they might be the subject of legitimate public interest or concern. Free speech included more than political expression or comment on public affairs.
Expansion of the application of the First Amendment to civil libel suits culminated in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). The Court held that defamation actions brought by public persons (public officials and public figures) must meet the New York Times standard but that states could impose a lesser standard in actions brought by private individuals as long as at least negligence, but not necessarily actual malice, was demonstrated.
The crucial issue after Gertz is who qualifies as a public figure. That opinion suggested that the status of public figure could be established in one of two ways. First, an individual may achieve such fame and notoriety that he becomes a public figure for all purposes. Second, an individual may have injected himself or been drawn into a public controversy, thereby becoming a public figure for a limited range of issues.
Prior to Gertz the Court’s emphasis was on protecting the press, as the public’s guardian, from threat and limitation by the potentially stronger government and public figures. Gertz, however, recognized that the media themselves have become a vast repository of privilege and power that could be abused. Gertz, by facilitating civil suits by private figures, reserved some protection for individuals from abuses of a guardian grown too strong to disregard.
Constitutional Impact on Criminal Libel
Although Garrison explicitly stated only that New York Times would apply to criminal libel prosecutions, there is no reason to assume that criminal defendants will not be protected at least as fully as civil defendants under Butts and Gertz. In fact, the stigma and deprivation of liberty associated with criminal prosecutions should make charges of criminal libel more subject to scrutiny under the First Amendment than are those of civil libel.
At minimum, therefore, the following should be clear: Truth, whether with good motives or otherwise, is always an absolute defense, and the burden of proving falsity is upon the prosecutor. Libelous statements concerning public officials or figures are criminally actionable only if ‘‘actual malice’’ on the part of the defendant can be proved. In all other cases negligence, at least, must be demonstrated.
While the decided cases all focus on media defendants, their scope would logically include nonmedia defendants. To exclude individual, but not institutional, communications from First Amendment protection would create a dangerous disequilibrium between the guarantee of freedom of speech and that of the press. Statements of the press may cause much greater damage than those of private persons because of the wider dissemination of press communications and the greater difficulty in effectively rebutting them. It is anomalous, therefore, that the press be held accountable only for negligence or malice while the private person, engaged in a casual private conversation with a single individual, be held liable for false statements regardless of fault or negligence.
Hate Speech and Group Libel
In light of New York Times and its progeny, the continuing constitutionality of group libel laws is now unclear. Beauharnais, the 1952 decision that upheld such provisions, has been harshly criticized and has proven remarkably inert as a basis for further case law. Indeed, recent developments have only deepened the uncertainty surrounding this longdormant decision.
Beginning in the 1980s, a few cities and an even greater number of colleges and universities considered or adopted prohibitions on speech conveying animus toward members of racial, ethnic, or religious minority groups and (in some cases) toward gays and lesbians. Civil libertarians challenged these ‘‘hate speech codes’’ as violations of the First Amendment. Defenders of them pointed to the approval of group libel provisions in Beauharnais, a case many thought weakened by subsequent decisions but one the Supreme Court had nevertheless refrained from ever overruling.
In R.A.V. v. St. Paul, 505 U.S. 377 (1992), the Supreme Court invalidated a city ordinance that prohibited cross burnings and like forms of racially or religiously motivated ‘‘fighting words.’’ By proscribing only a select class of inflammatory behavior, the law in question, the Court held, impermissibly conditioned liability on the content of the message such conduct was thought to express. But while clearly intimating disapproval of ‘‘hate speech’’ provisions, the Court in R.A.V. again declined to overrule or limit Beauharnais; indeed, the opinion in R.A.V. cited Beauharnais approvingly for the proposition that certain ‘‘categories of expression are ‘not within the area of constitutionally protected speech’’’ (p. 383). The constitutionality of ‘‘group libel laws,’’ which can still be found on the books in several states, thus remains a mystery.
A Critical Analysis of Criminal Libel
Tort and Criminal Law: A Difference of Function
Although a defamatory statement may constitute both a tort and a crime, there are fundamental differences of purpose in the two systems of allocating responsibility. Whether the damage is to the individual’s life, limbs, property, or reputation, the law of torts attempts to reduce the cost of injury through placement of liability. It employs deterrence and compensation to promote human dignity by using money damages to discourage the violation of an individual’s integrity and to reduce the impact of those injuries that do occur. Tort law’s concern with reducing the frequency, extent, and impact of injury results in a reluctance to set standards that, once attained, would cease to apply pressure for improvement. The tort of defamation vindicates a plaintiff’s reputation, rebukes and economically penalizes the offenders and thus affects their behavior, and provides compensation for economic and personal loss caused by the defamatory statements.
Crime, on the other hand, is that deviance which society finds intolerable. Using the criminal process to respond to such behavior channels and reduces the emotive response—the passion—that the deviance engenders in those personally confronted by it. Without a system of criminal law, riot, vigilantism, and vendetta would be the only recourse for controlling deviance. As long as the criminal process retains a sufficient ritual representation of passion, these excesses may be deterred. To aid and restrict this release of passion, criminal law makes violation a moral issue by unifying legal and moral guilt, through use of articulated and knowable standards. Although criminal law serves other purposes as well, the potential for controlling passion often accounts for the choice of criminal, rather than civil, remedies in a given situation. Criminal law, thus, should be reserved for behavior that exceptionally disturbs the community’s sense of security.
The Role of The Constitution.
Unlike criminal law, which involves the expression of societal passion, the Bill of Rights of the United States Constitution is a document by which the populace, fearing the tyranny of a temporary majority, institutionalized a barrier to fulfillment of momentary whims. No document, constitutional or otherwise, can save liberty once it has been abandoned by the people, but it can retard the process of abandonment long enough to allow a deliberate, dispassionate reconsideration.
The First Amendment plays such a role. It is based on the premise that the individual and the community, rather than the government, should make the vital political, moral, and aesthetic decisions. Censorship, on the contrary, demands a difficult, if not impossible, decision on what the public should not know. If truth is viewed not as a fixed concept but as a transient one, any reduction of communication, no matter how abhorrent the communication, is detrimental to society. Even if some speech is in fact worthless, the risks involved in censoring even offensive and obnoxious expression would significantly endanger uninhibited public debate, for there may be no principled stopping place.
First Amendment evaluations involve a tension between the values of free expression and those of public safety, morality, comfort, and convenience. This tension involves interests of society in general, and society bears the impact of the decision to sacrifice either. Traditionally, the societal benefits of a system of free expression are thought to outweigh the temporary societal dangers of false statements, at least so long as sufficient time exists for corrective discussion to take place.
In limiting civil suits for defamation, however, the impact of the First Amendment is not shared generally by the populace. Rather, it falls directly and immediately upon the defamed individual. If he is unable to obtain redress through the legal system because of First Amendment interests, the value of free speech is subsidized by the injured party rather than by the general populace that benefits from a system of free expression. Tort law, consequently, with its focus on individual injury reduction and impact minimization, is more solicitous of the defamation victim than is criminal law, with its focus on societal impact. This emphasis on individual over societal harm suggests that civil law, rather than criminal law, responses to libel should be the norm.
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