From Frese v. Formella, decided today by the First Circuit, in an opinion by Judge Jeffrey Howard, joined by Judges William Kayatta and Rogeriee Thompson:
New Hampshire's criminal defamation statute provides that "[a] person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule." "'[P]ublic' includes any professional or social group of which the victim of the defamation is a member." A person convicted of a class B misdemeanor faces a fine of up to $1,200. Because such charges carry no possibility of jail time, criminal defamation defendants have no right to trial by jury and are not afforded court-appointed counsel.
New Hampshire's misdemeanor enforcement process empowers police departments to prosecute defamation. In the absence of the exercise of discretionary supervisory authority by the state Attorney General or County Attorneys, municipal police departments may initiate prosecutions for misdemeanors, including criminal defamation, without prior input or approval from such prosecutors…. "The prosecution of misdemeanors by police officers is a practice that has continued in one form or another since 1791 and is still permissible under existing statutes." Private citizens may also prosecute misdemeanors in New Hampshire, so long as incarceration is not an applicable penalty. {Notably, any private citizen who commences one of these actions could be held liable for malicious prosecution if that person acted without probable cause; likewise, a police officer could be liable if the officer acted wantonly.}
Although criminal defamation is rarely prosecuted in New Hampshire, Frese has twice been charged under section 644:11. In 2012, the Hudson Police Department arrested Frese for comments about a local life coach that he posted on a Craigslist website. Frese called the coach's business a scam and accused him of, among other things, being involved in a road rage incident and distributing heroin. Without the advice of counsel, Frese pleaded guilty and was fined $1,488, of which $1,116 was conditionally suspended. Six years later, the Exeter Police Department arrested Frese for comments he had pseudonymously posted in the online comments section of a newspaper article about a retiring Exeter police officer. The comments included statements that the retiring officer was "the dirtiest[,] most corrupt cop [Frese] ha[d] ever had the displeasure of knowing" and that the officer's daughter was a prostitute….
The court held that § 644:11 was constitutional under Garrison v. Louisiana (1964):
