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Criminal Statues Regarding Defamation of the Deceased

14 Mar

7 U.S. States With criminal Libel Laws for Internet Defamation

(7) States Having Criminal Statues Regarding Defamation of the Deceased

NOTE: The following  information was published February 24, 2011 on the Cadeflaw website Five States Having Criminal Statues Regarding Defamation of the Deceased  http://www.cadeflaw.org.

Original information was first obtained from Wikipedia and First Amendment Center. However, none of that information can be found on either webpage, as I’ve recently found out. That is very interesting. It is not unusual for information to be periodically updated, but information concerning the five states in reference to “Defamation of the Deceased” can not be found on either site.

Original Information from Wikipedia on February 24, 2011 It should be noted that there can be regional statutes as well that may differ from the national norm. For example, in the United States as a general rule of thumb defamation is limited to the living. However, there are five states (Colorado, Idaho, Georgia, Louisiana, and Nevada) that have criminal statues regarding defamation of the dead[20]

1. ^ Colorado Revised Statute Section 18-13-105, Idaho Code § 18-4801, Georgia Code – Crimes and Offenses – Title 16, Section 16-11-40, Louisiana Revised Statute § 14:47, and Nevada Revised Statutes § 200.510.

Original Information from First Amendment Center Site

Colorado

“(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

(3) Criminal libel is a class 6 felony.”

Colo. Rev. Stat. § 18-13-105 (2005)

Truth is an absolute defense to a libel action. A defendant is not required to prove the truth of the entire statement, only the truth in the substance of the statement. Gomba v. McLaughlin, 504 P.2d 337 (Colo. 1972).

People v. Ryan, 806 P.2d 935 (Colo., 1991), upheld the Colorado statute to the extent that it criminalized statements made by one private individual about another private individual. The court also held that “actual malice” need not be proved in cases between two private individuals.

Georgia

“(a) A person commits the offense of criminal defamation when, without a privilege to do so and with intent to defame another, living or dead, he communicates false matter which tends to blacken the memory of one who is dead or which exposes one who is alive to hatred, contempt, or ridicule, and which tends to provoke a breach of the peace.

(b) A person who violates subsection (a) of this Code section is guilty of a misdemeanor.”

Ga. Code Ann. § 16-11-40 (2005).

Porter v. Kimzey, 309 F.Supp. 993 (N.D. Ga. 1970), aff’d 401 U.S. 985, held that the criminal-libel statute does not violate the First Amendment so long as the provisions in the statute are precise and objective. However, Williamson v. State, 249 Ga. 851 (1982), held that the statute was partially unconstitutional because the language “tends to provoke a breach of peace” is vague and overbroad. Yet in light of the decision, the statute has not been revised and remains on the books.

Idaho

Libeling either the living or the dead is a crime. Idaho Code § 18-4801 (2005).

“Every person who willfully, and with a malicious intent to injure another, publishes, or procures to be published, any libel, is punishable by fine not exceeding $5,000, or imprisonment in the county jail not exceeding six (6) months.” Id. at 18-4802.

Truth is a defense, which is to be determined by the jury. Id. at 18-4803.

“An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” Id. at 18-4804.

It is not necessary that anyone actually have read or seen the libel. Id. at 18-4805. Each author, editor and proprietor of libelous material is liable. Id. at 18-4806.

“True and fair” reports of public proceedings are not libelous, except upon a showing of malice. Id. at 18-4807.

Libelous remarks or comments in relation to “true and fair” reports receive no protection. Id. at 18-4808.

It is a misdemeanor to either threaten to libel a person or their family member or solicit money in return for preventing a libel. Id. at 18-4809.

Louisiana

“Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:

(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or

(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or

(3) To injure any person, corporation, or association of persons in his or their business or occupation.

Whoever commits the crime of defamation shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.”

La. Rev. Stat. § 14:47 (2005)

Garrison v. Louisiana, 379 U.S. 64 (1964), holds that the Louisiana statute is unconstitutional so far as it punishes true statements about public officials that are uttered with malicious purpose. Additionally, the statute is unconstitutional in respect to its failure to differentiate whether false statements against public officials were made with malice, reckless disregard of truth or falsity, or in a reasonable belief of the truth of the statement. However, Louisiana’s statute is not unconstitutional per se as long as any actual prosecutions under it follow the constraints laid out in Garrison. Snyder v. Ware, 314 F. Supp. 335 (W.D. La. 1970), aff’d 397 U.S. 589. The Louisiana statute still remains on the books.

Nevada

Nevada makes it a “gross misdemeanor” to libel the living through publication of material that would expose them to ridicule, or to “blacken the memory of the dead.” Nev. Rev. Stat. § 200.510. Similarly, it is a misdemeanor to furnish libelous information to a newspaper or other publication. Id. at 200.550. There is no “intent” requirement, but there is a defense if the information was true and published “for good motive and justifiable ends.” Id. at 200.510

“Any method by which matter charged as libelous may be communicated to another shall be deemed a publication thereof.” Id. at 200.520.

Editors and proprietors of published material may be held liable, but an editor or proprietor may escape guilt by proving “that the matter complained of was published without his knowledge or fault and against his wishes by another who had no authority from him to make such publication, and was retracted by him as soon as known with an equal degree of publicity.” Id. at 200.530.

Nevada law makes it a “gross misdemeanor” either to threaten to libel somebody, or to solicit personal gain in return for not libeling somebody. Id. at 200.560.

Note: In an unpublished order, federal Judge Johnnie Rawlinson approved an agreement between the Nevada Press Association and the Nevada Attorney General that the statutes would not be enforced because they were unconstitutional. In Nevada Press Association v. del Papa, CV-S-98-00991-JBR (199, the final judgment stated that the statutes were unconstitutional because they were overbroad and punished individuals for the publication of truthful statements.

NEW INFORMATION OBTAINED 

Different Standards For Public Figures & Private Individuals In Internet Defamation Lawsuits Kelly Warner Law

In most cases, only the living can be defamed. However, ten states have laws prohibiting defamation of the dead (Georgia, Louisiana, Nevada, Colorado, Kansas, Idaho, Oklahoma, Utah, North Dakota and Washington).

Utah, North Dakota and Washington….unable to find any information on these three states concerning Internet Defamation for the deceased.

Criminal libel laws for Internet Defamation (Living and Deceased) Criminal Libel Laws for Internet Defamation

Colorado
“(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

(3) Criminal libel is a class 6 felony.”

Colo. Rev. Stat. § 18-13-105 (2005)

Truth is an absolute defense to a libel action. A defendant is not required to prove the truth of the entire statement, only the truth in the substance of the statement. Gomba v. McLaughlin, 504 P.2d 337 (Colo. 1972).

People v. Ryan, 806 P.2d 935 (Colo., 1991), upheld the Colorado statute to the extent that it criminalized statements made by one privateindividual about another private individual. The court also held that “actual malice” need not be proved in cases between two private individuals.

Georgia
“(a) A person commits the offense of criminal defamation when, without a privilege to do so and with intent to defame another, living or dead, he communicates false matter which tends to blacken the memory of one who is dead or which exposes one who is alive to hatred, contempt, or ridicule, and which tends to provoke a breach of the peace.

(b) A person who violates subsection (a) of this Code section is guilty of a misdemeanor.”

Ga. Code Ann. § 16-11-40 (2005).

Porter v. Kimzey, 309 F.Supp. 993 (N.D. Ga. 1970), aff’d 401 U.S. 985, held that the criminal-libel statute does not violate the First Amendment so long as the provisions in the statute are precise and objective. However, Williamson v. State, 249 Ga. 851 (1982), held that the statute was partially unconstitutional because the language “tends to provoke a breach of peace” is vague and overbroad. Yet in light of the decision, the statute has not been revised and remains on the books.

Idaho
Libeling either the living or the dead is a crime. Idaho Code § 18-4801 (2005).

“Every person who wilfully, and with a malicious intent to injure another, publishes, or procures to be published, any libel, is punishable by fine not exceeding $5,000, or imprisonment in the county jail not exceeding six (6) months.” Id. at 18-4802.

Truth is a defense, which is to be determined by the jury. Id. at 18-4803.

“An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” Id. at 18-4804.

It is not necessary that anyone actually have read or seen the libel. Id. at 18-4805. Each author, editor and proprietor of libelous material is liable. Id. at 18-4806.

“True and fair” reports of public proceedings are not libelous, except upon a showing of malice. Id. at 18-4807.

Libelous remarks or comments in relation to “true and fair” reports receive no protection. Id. at 18-4808.

It is a misdemeanor to either threaten to libel a person or their family member or solicit money in return for preventing a libel. Id. at 18- 4809.

Kansas
“(a) Criminal defamation is communicating to a person orally, in writing, or by any other means, information, knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.

(b) In all prosecutions under this section the truth of the information communicated shall be admitted as evidence. It shall be a defense to a charge of criminal defamation if it is found that such matter was true.

(c) Criminal defamation is a class A nonperson misdemeanor.” Kan. Stat. Ann § 21-4004 (2005).

The court in Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995), found the statute required actual malice in matters of public concern and furtherheld that the statute was neither vague nor overbroad.

Louisiana
“Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:

(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or

(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or

(3) To injure any person, corporation, or association of persons in his or their business or occupation.

Whoever commits the crime of defamation shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.”

La. Rev. Stat. § 14:47 (2005)

Garrison v. Louisiana, 379 U.S. 64 (1964), holds that the Louisiana statute is unconstitutional so far as it punishes true statements about public officials that are uttered with malicious purpose. Additionally, the statute is unconstitutional in respect to its failure to differentiate whether false statements against public officials were made with malice, reckless disregard of truth or falsity, or in a reasonable belief of the truth of the statement. However, Louisiana’s statute is not unconstitutional per se as long as any actual prosecutions under it follow the constraints laid out in Garrison. Snyder v. Ware, 314 F. Supp. 335 (W.D. La. 1970), aff’d 397 U.S. 589. The Louisiana statute still

Nevada
Nevada makes it a “gross misdemeanor” to libel the living through publication of material that would expose them to ridicule, or to “blacken thememory of the dead.” Nev. Rev. Stat. § 200.510. Similarly, it is a misdemeanor to furnish libelous information to a newspaper or other publication. Id. at 200.550. There is no “intent” requirement, but there is a defense if the information was true and published “for good motive and justifiable ends.” Id. at 200.510

“Any method by which matter charged as libelous may be communicated to another shall be deemed a publication thereof.” Id. at 200.520.

Editors and proprietors of published material may be held liable, but an editor or proprietor may escape guilt by proving “that the mattercomplained of was published without his knowledge or fault and against his wishes by another who had no authority from him to make suchpublication, and was retracted by him as soon as known with an equal degree of publicity.” Id. at 200.530.

Nevada law makes it a “gross misdemeanor” either to threaten to libel somebody, or to solicit personal gain in return for not libeling somebody. Id. at 200.560.

Note: In an unpublished order, federal Judge Johnnie Rawlinson approved an agreement between the Nevada Press Association and the Nevada Attorney General that the statutes would not be enforced because they were unconstitutional. In Nevada Press Association v. del Papa, CV-S-98-00991-JBR (1998), the final judgment stated that the statutes were unconstitutional because they were overbroad and punished individuals for thepublication of truthful statements.

Oklahoma
The state has promulgated four libel-related crimes:
1.“Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.” 21 Okla. Stat. § 771 (2005). It is not, however, necessary that anyone actually read or otherwise learn of the libel for a conviction to be secured; mere exposure to the possibility of being read by another person is enough. Id. at 776.
2.Any person who makes a libel, willfully publishes one or willfully or knowingly aids in the making of a libel may be punished by up to one year in jail and/or a fine of $1,000 (and shall be liable in civil court to the injured party). Id. at 773.
3.One who “falsely and maliciously or falsely and wantonly” imputes unchastity to a female is guilty of a crime, but one with much less severepenalties: $25.00 in fines or 90 days in jail. In such cases, the state need not prove the imputed information to be false; rather, the truth of the information is an affirmative defense. Id. at 779-80.
4.“Willfully, knowingly, or maliciously” spreading false rumors is also a crime. Id. at 781; see Pegg v. State, 659 P.2d (Okla. Crim. App. 1983)(upholding this statute as not unconstitutionally vague or overbroad).

A person who threatens to make a libel is presumed to have the same “intent” (mens rea) as one who actually does make a libel. Id. at 778.

The truth of information published with “good motives” and “justifiable ends” is a defense to libel. Id. at 774. An individual will not be liable for a statement if the statement is privileged information that is published as part of a legislative or judicial process, as part of one’s official duties, or as a “fair and true” report of the former. In the case of unprivileged information, publication gives rise to a rebuttal e presumption of malice. Id. at 772. Moreover, even when a newspaper makes a “fair and true” report of one of the above proceedings, if it does so with malicious intent, it can still be convicted of libel — although malice will not be presumed from publication. Id. at 777.

The Oklahoma statute contains the language “blackens the name of the dead,” which alludes to a cause of action for a deceased individual or their relatives. However, in Turner v. Crime Detective, 34 F.Supp. 8 (N.D. Okla. 1940), the court held that a common law recovery for libel was not available to a deceased individual nor could the deceased individual’s estate or relatives recover for the libel. The Oklahoma statute does not include language that expressly changes the common law requirement that the individual be living nor does the statute language expressly create a right for a deceased individual or their relatives to recover for the libel. Therefore, the court held that in Oklahoma an action for libel cannot be brought on behalf of a deceased individual. Nonetheless, the statute language has remained unchanged.

 
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Posted by on March 14, 2013 in Advocacy

 

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