Exeter, New Hampshire police may have some trouble on their hands after arresting Robert W. Frese. It seems the Exeter police aren't fully educated on some of the finer points of the law, specifically the first amendment's Constitutional guarantee of free speech. It all started with a simple comment left on New Hampshire's Seacoast Online news site. The article in question was related to the retirement of police officer Dan D'Amato.
Frese had been previously convicted of fraud, criminal trespassing and hit and run. His most recent arrest, however, is related to <a href="http://www.seacoastonline.com/news/20180531/exeter-man-charged-with-defaming-police-chief">criticizing D'Amato and the Exeter Police Chief William Shupe</a>, saying "Chief Shupe covered up for this dirty cop.” Seacoast Online removed the comment, but police have charged Frese with criminal defamation of character, a Class B misdemeanor. The written complaint has the department claiming Frese “purposely communicated on a public website, in writing, information which he knows to be false and knows will tend to expose another person to public contempt, by posting that Chief Shupe covered up for a dirty cop.”
<a href="https://slate.com/news-and-politics/2018/06/exeter-police-arrested-a-man-for-criticizing-them-on-the-internet.html?via=recirc_recent">Class B misdemeanors are punished by fines</a>. In this case, the department could be in hot water as the alleged crime should not result in deprivation of liberty. Frese was released on his own recognizance but his arraignment is scheduled for July 10. Free speech does not mean freedom from consequences of unpopular speech, but it should be a guarantee that one can criticize anyone holding public office without fear of being deprived of liberty.
In fact, the law that Frese was held and is being charged on may be unconstitutional itself. The defamation charge the Exeter police are citing states that it is a crime to make any speech that “tend[s] to expose” a living person to “public hatred, contempt or ridicule.” The real issue with the law is that it makes no distinction between speech directed at private individuals or public figures.
It's not just the constitution either, the specifics of this law don't stand up against the Supreme Court case of New York Times v. Sullivan. The government may not penalize criticism of public officials (and this includes polices) if it can't be proven that the speech was made with "actual malice" and "reckless disregard" for truth.
Defamation is generally prosecuted as a civil matter wherein one private party charges another. The charge of "sedition" (libeling the government) resulted in one of the most famous cases of jury nullification in US history with the <a href="http://www.famous-trials.com/zenger/99-nullification">John Peter Zenger case that was tried in 1735</a> and involved alleged libel of the governor of the colony of New York.
A similar battle for free speech <a href="https://nypost.com/2004/07/12/hamiltons-triumph-fought-for-freedom-of-the-press/">occurred under the John Quincy Adams administration</a>. Adams attempted to silence pro-Jefferson papers with the Alien and Sedition act of 1798. Jefferson overturned the act in 1801 freeing those who were currently held for criticizing the government under the act. In between the first amendment, the Zenger case nullification, the Alien and Sedition Act being struck down and the New York Times v. Sullivan there should be ample, historical precedent for this case being thrown out.
The New Hampshire chapter of the American Civil Liberties Union legal director Gilles Bissonnette is investigating the case currently:
<blockquote>“It appears that the police may be using this statute to suppress speech that is critical of police,” he told me. “This is deeply troubling.” He added that while there is a “public interest in preventing defamation,” it is “not sufficient to justify the repressive effect that criminal libel prosecutions may have on public expression.”
“It would be prudent,” Bissonnette said, “for the Exeter police to dismiss this charge immediately.”</blockquote>
<a href="http://www.unionleader.com/article/20180602/NEWS21/180609911&source=RSS">Frese could find himself in more trouble</a> if the arraignment in July doesn't go well. A misdemeanor charge like this could result in a prison sentence as he's currently on a suspended sentence. If revoked he could end up back in. Frese also finds it hard to see how what he did was seriously defamation when “we see Kathy Griffin, the comedian, walking around with the severed head of Donald Trump with blood dripping out … and that’s free speech.”
The ACLU pointed to the U.S. Supreme Court case New York Times vs. Sullivan in which the court found that “debate on public issues should be uninhibited, robust, and wide-open,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”