Free speech has its limits. This concept isn’t new. That doesn’t keep many of us from fighting over our rights as they are defined by the First Amendment. And now there’s a new case that will test the limits of law enforcement to prosecute violations of free speech. A man who criticized his town’s police officers on-line has been arrested for doing so.
“On May 23, a police officer arrested Robert W. Frese in Exeter, New Hampshire and took him to the station for booking.” Slate writes. “He [was] apprehended for insulting a police officer on the internet.”
The case begins with Frese’s criminal history. He has been in trouble with the law for more traditional crimes in the past. Slate runs down the laundry list: “he has been convicted of fraud, criminal trespassing, and a hit-and-run.”
Perhaps this is why Frese has a bone to pick with the police.
“On May 3, Frese wrote a comment on a Seacoast Online article about recently retiring police officer Dan D’Amato. He believed that D’Amato had treated him unfairly and harshly criticized his alleged misconduct. He then tore into Exeter Police Chief William Shupe, declaring that ‘Chief Shupe covered up for this dirty cop’.”
Frese was then charged with criminal defamation of character, a Class B misdemeanor. The police contend that 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.”
Slate, coming to the defense of the First Amendment, and (vicariously, Frese) has parsed out an opinion on the legality of the arrest:
Are these actions by the Exeter police actually legal? Almost certainly not. Political speech—and, in particular, criticism of public officials—lies at the heart of the First Amendment, and the Exeter police would have to overcome several hurdles to secure a conviction. Perhaps most obviously, the law under which Frese was charged may be unconstitutional on its face. The statute criminalizes false speech that ‘tend[s] to expose’ a living person to ‘public hatred, contempt or ridicule,’ without distinguishing between expression directed at private individuals and public figures. But the First Amendment protects some false speech, particularly in the context of political debate. And the astonishing breadth of this law, outlawing any fiction that brings ‘ridicule’ upon a living person, raises serious constitutional concerns.”
“Even if the statute comports with the constitution, its application in this case remains suspect. Under New York Times v. Sullivan, the government may not penalize criticism of public officials (like a police chief) unless it was made with ‘actual malice’—knowledge of its falsity, or ‘reckless disregard’ to its truth. That stringent standard protects “rhetorical hyperbole,” which appears to be what Frese engaged in here. It’s not at all clear that Frese intended to express a statement of fact; read in context, his comment seems to imply that the police chief excused the patrolman’s alleged misbehavior. Frese is not necessarily accusing Shupe of a crime so much as drawing an inference from his own (manifold) encounters with the Exeter police. Sullivan plainly protects his right to fling this disparagement at Shupe, even if it might not be true in a strictly literal sense.”
Now the American Civil Liberties Union of New Hampshire is looking into Frese’s case. If the police are using prosecution to suppress the legal criticism of police officers, they will likely end up paying Frese a tremendous amount in damages.