Defamation is a form of speech that is not protected by the First Amendment. It is defined as a false statement, made about a person to third parties, which damages that person’s reputation. Defamation is generally treated as a civil wrong, meaning that you can be sued for it. However, in some states, including New Mexico, anti-defamation statutes remain on the criminal code, meaning that defamation is considered a crime—at least in principle. See N.M.S.A § 30-11-1.
These laws are generally pretty archaic. See State v. Powell, 1992-NMCA-086, ¶ 3, 114 N.M. 395 (“Although the statute was enacted in 1963, the statutory language is taken almost verbatim from a statute enacted by the territorial legislature in 1889.”) As in New Mexico, Washington state’s criminal law against libel pre-dates statehood. See RCW 9.58.010.
These laws have been largely unenforceable since 1964, when the Supreme Court first constitutionalized defamation law in New York Times Co. v. Sullivan, by holding that statements about public officials cannot be subject to defamation liability absent a showing of actual malice (i.e., knowledge of the statement’s falsity or reckless disregard of whether it was true). This standard was later extended to cover not just public officials, but all public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
Thus, in practice, state criminal statutes against defamation are rarely enforced. The last time a New Mexico higher court heard an appeal stemming from a criminal prosecution for defamation was in 1992. In 2008, Washington state’s criminal libel law was struck down by the Washington Court of Appeals as overly broad, unduly vague, and unconstitutional per Sullivan and its progeny, and has not been enforceable since then. See Parmelee v. O’Neel, 145 Wash. App. 223, 186 P.3d 1094 (2008).
But that’s not where the story ends, because (1) all 50 states have laws against harassment that may be applicable in defamation scenarios, and because (2) defamation scenarios often coincide with other crimes.
The criminal code in each of the fifty states defines harassment as a crime, although the way each state defines harassment may vary.
In New Mexico, harassment is a misdemeanor that “consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.” N.M.S.A. § 30-3A-2(A).
In Washington state, harassment is a gross misdemeanor (i.e., more serious than a misdemeanor but not as serious as a felony) and is defined as a credible threat of property damage, physical harm, or physical confinement, made knowingly and without lawful authority. RCW 9A.46.020.
Furthermore, assault (i.e., a threat of unwanted physical contact) and domestic violence are crimes in all fifty states, as is stalking, which is often defined the way that Washington state defines harassment, albeit with a requirement that the violative act be committed multiple times in order to meet the definition of stalking. These statutes may apply in defamation scenarios, where a someone is attacking another person’s reputation and simultaneously engages in conduct that meets these definitions. In other words, civil wrongs being committed against you may also run afoul of criminal law.
Because we are civil law practitioners, and not prosecutors, we are not allowed to threaten your detractor with criminal liability. This is because the right to make a report to law enforcement cannot be compromised in a civil settlement. Thus, when a client who is being defamed has reasonable or urgent grounds to file a criminal complaint, this is separate from our services.
If you believe that you are in physical danger, or that someone who is defaming you may have committed a crime against you, it may be necessary for you to call law enforcement. If you are being subjected to defamation in the media, or online, contact us here, or call us at (505) 587-8688 to speak with a defamation attorney today.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.