The Internet comments section on just about any news story can get pretty wild these days, but you don’t usually expect the cops to show up.
That’s what happened in New Hampshire last year, though, when Robert Frese of Exeter was arrested under the Live Free Or Die state’s criminal libel statute after posting a few comments claiming, without presenting evidence, that a local police officer was corrupt and the chief was covering for him.
Live Free, But Type Carefully.
Amid widespread eye-rolling, the case against Frese was dropped once it got to a prosecutor, and now the American Civil Liberties Union is suing the state over the constitutionality of the law.
“The reaction that we’ve gotten from a lot of people is, ‘How does this still exist?’” said Emerson Sykes, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “It exists in half of the states, basically. It’s been used disproportionately to punish speech against elected officials.”
These laws aren’t often enforced; defamation, slander, libel — these are typically subjects for civil lawsuits, not criminal prosecutions. But you have to wonder: If lying about someone online is a misdemeanor in New Hampshire — and if police are actually enforcing it — how exactly has the Granite State been holding presidential primaries without exhausting its supply of handcuffs?
“It’s obviously a question that’s come to mind,” Sykes said, chuckling, when I asked — strictly hypothetically — whether calling someone, say, “Pocahontas” might qualify.
“The context matters,” said Sykes. “If you’re talking about political speech and debates, courts have found there’s more leeway for hyperbole.”
New Hampshire’s law has a few components that make it awfully difficult to enforce: The person making the statement must know that it’s false, and also know that the statement “will tend to expose any other living person to public hatred, contempt or ridicule.”
Proving all of that often involves a fair amount of mind-reading.
But what if — again, strictly hypothetically, just to pull an example out of thin air — an aspiring presidential candidate with an elaborate combover and a raging Twitter addiction took to social media to call one of his opponents a derisive and not-that-clever nickname based on nothing in particular? Would that be arrestable?
If only there were some real world examples we could look at … Oh wait.
Everybody is laughing at Jeb Bush-spent $100 million and is at bottom of pack. A pathetic figure!— Donald J. Trump (@realDonaldTrump) February 8, 2016
While everybody may well have been laughing at “low-energy” Jeb — and “pathetic” is in the eye of the beholder — he was not, in fact, at the bottom of the pack in New Hampshire. That was Rick Santorum and somebody named Jim Gilmore. And this tweet most certainly exposed old Jeb! to ridicule (though perhaps less than his own campaign did).
“Jeb is sad and desperate, he’s a pathetic person. He’s gone absolutely crazy. This guy is a nervous wreck, I’ve never seen anything like it,” Trump said at a rally in New Hampshire, according to The Telegraph.
“Jeb is having some kind of a breakdown. He’s an embarrassment to his family. Frankly, he’s a stiff. He’s not a guy who can be president. He doesn’t have what it takes to be president.”
Well, that last thing appears to be true.
My two wonderful sons, Don and Eric, will be on @foxandfriends at 7:02 - now! Enjoy.— Donald J. Trump (@realDonaldTrump) February 8, 2016
Even he must know that Eric and Don Jr. are not wonderful, right?
“Tom Brady is a great friend of mine,” Trump said in a Facebook video the morning of the primary. “And he’s said so many nice things about me and my ability to win.” But while this certainly opened someone up to a lot of ridicule, it’s unfortunately true.
We will immediately repeal and replace ObamaCare - and nobody can do that like me. We will save $'s and have much better healthcare!— Donald J. Trump (@realDonaldTrump) February 9, 2016
This whopper arrived the day of the New Hampshire primary, and while it was obviously false, the law is clear: The contempt has to be directed at someone other than yourself.Nestor Ramos can be reached at firstname.lastname@example.org. Follow him on Twitter @NestorARamos.