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Attorney for Utah teen says state's criminal-libel law unconstitutional

By David Hudson
The Freedom Forum Online

07.07.00

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Ian Lake

The attorney for a Utah teen charged with criminal libel for comments he made in cyberspace says the charges should be dropped because the law violates the First Amendment.

Prosecutors charged Ian Lake with criminal libel for offensive content on his Web page. Lake referred to one female classmate as a "slut" and called the principal "the town drunk."

On May 18, Beaver County sheriff's deputies arrested Lake and seized his computer. The teen spent seven days in juvenile detention in Cedar City, Utah.

Prosecutors later charged the teen with criminal libel under a law that defines libel as "a malicious defamation ... tending to impeach the honesty, integrity, or reputation, or publish the natural defects of one who is alive and there expose him to public hatred, contempt or ridicule."

Rick Van Wagoner, Lake's attorney, says he will present several lines of defense against this prosecution.

"First of all, we will file a motion challenging the constitutionality of the statute on its face," he said. "Even if what he [Lake] said was offensive and beyond the pale of decency, so to speak, the statute is unconstitutional on its face because it doesn't apply the correct actual malice standard as required by the U.S. Supreme Court."

Van Wagoner, who is taking the case as a cooperating attorney for the American Civil Liberties Union of Utah, cites the U.S. Supreme Court's 1964 decision in Garrison v. State of Louisiana, in which the high court struck down a state criminal libel statute and dismissed the conviction of New Orleans Parish district attorney Jim Garrison for his comments criticizing several criminal trial judges.

The Louisiana criminal defamation law punished false statements about public officials that were made with ill will. However, earlier that year, the U.S. Supreme Court established in New York Times Co. v. Sullivan that even false statements about public officials could not be subject to a civil defamation suit unless the statements were made with actual malice or reckless disregard for the truth.

In Garrison, the U.S. Supreme Court extended the actual malice standard set in New York Times Co. v. Sullivan to criminal libel cases, writing: "Only those statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions."

Van Wagoner asserts that the Utah criminal libel statute applies a malice standard of ill will or hatred rather than the constitutional standard of reckless disregard for the truth.

He says that if the facial challenge to the statute fails, he will argue that his client's speech is parody, a protected form of speech that cannot be criminally libelous.

Finally, Van Wagoner says that if the facial attack and parody defense fail, he will contend that Lake cannot be convicted of criminal libel because his statements were not false. "Truth is a defense to any libel action," he said.

Several calls placed to the prosecutor, Beaver County District Attorney Leo Kanell, were not returned.

A pretrial conference in the case was set for July 11. However, Van Wagoner says he has a conflict with that date and has requested the judge hearing the case to postpone the hearing until August 1.

Update

It's the 'principal' of the thing
Ombudsman One administrator takes high road in handling controversy over student newspaper; another takes wrong path by trying to squelch student expression.  07.11.00

Related

If it's online, we overreact
The Internet is the freest part of the American communications culture. As such, it raises new questions about the limits of freedom and poses some new challenges to a culture in which the First Amendment sometimes seems almost timid.  06.02.00

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