Kansas journalists face rare criminal-defamation charges
By The Associated Press
04.03.01
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KANSAS CITY, Kan. — The editor and publisher of a free newspaper face the rare charge of criminal defamation because of their published criticism against two Kansas City politicians.
Wyandotte County District Attorney Nick Tomasic filed 10 misdemeanor criminal-defamation charges March 1 against publisher David Carson, editor Edward H. Powers Jr., and Observer Publications, which distributes The New Observer through the mail and at businesses throughout Wyandotte County.
The Observer has been a constant and severe critic of Tomasic and Mayor Carol Marinovich, who is involved in a difficult reelection campaign in today's general election.
The criminal-defamation charges are a new arena for Tomasic, who has never filed them in his 30 years in office. Kansas is one of 25 states that still have criminal-defamation statutes, but this is the first time in many years it has been used in the state, said Ron Keefover, spokesman for the Kansas Supreme Court.
"These are usually civil lawsuits, and we have had those, but a criminal charge is an extremely unusual circumstance," Keefover said.
That's true across the nation, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "It is even more unusual that anyone wins one of these cases," she said.
In the Wyandotte County case, eight of the charges are based on claims in the Observer that Marinovich and her husband, District Court Judge Ernest Johnson, do not actually live in Wyandotte County. If true, Marinovich could not serve as mayor. She has consistently denied the allegations.
The other two charges allege that the men defamed Kansas City residents Andy Rollins and former Kansas City (Mo.) Star reporter Steve Nicely by accusing them of being hired "to lie for Marinovich."
Powers and Carson each posted $1,000 bond and have an April 10 court hearing. If found guilty, they could be fined $2,500 and jailed for a year.
Tomasic said he decided to file the charges because the allegations were "false and malicious" and "that's what the statute provides."
He declined to comment further to the Associated Press, but in an earlier interview with the Star, he denied that the charges were politically motivated and said Marinovich had not encouraged him to file them.
Marinovich and Carson did not return calls from the AP.
Powers declined to comment, saying he said all he wanted to in the Observer. In the edition published after the charges were filed, the Observer said that the charges were "obviously political" and violated the men's right to free speech. The paper also alleges that Marinovich and Tomasic conspired to bring the charges because they are concerned about her reelection chances.
The notion of criminal defamation is based on old English law that presumed the state had to punish falsities. The country got away from that idea in the early 1900s and embraced the idea that if there is an injury to someone's reputation — but not a physical threat — such complaints should be decided in civil court, Dalglish said.
The other problem with the charges, she said, is that the U.S. Supreme Court has ruled that prosecutors must prove actual malice to win.
"It's a real threat to free speech if you make it too easy to win these cases," Dalglish said. "It would really stifle speech, particularly in the context of a political campaign.
"Throwing someone in jail for speaking is misplaced punishment. The appropriate way to proceed is to seek civil damages."
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