Criminal Libel

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.

Defenses. 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.