Frese v. Formella

• Decision Date: 08 November 2022
• Docket Number: 21-1068
• Citation: 53 F.4th 1
• Parties: Robert FRESE, Plaintiff, Appellant, v. John M. FORMELLA, in his official capacity as Attorney General of the State of New Hampshire, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

53 F.4th 1

Robert FRESE, Plaintiff, Appellant,

v.John M. FORMELLA, in his official capacity as Attorney General of the State of New Hampshire, Defendant, Appellee.

No. 21-1068

United States Court of Appeals, First Circuit.

November 8, 2022

Brian Hauss, with whom Emerson Sykes, American Civil Liberties Union Foundation; Gilles Bissonnette and Henry R. Klementowicz, American Civil Liberties Union of New Hampshire; John M. Greabe; Lawrence A. Vogelman and Shaheen & Gordon, P.A. were on brief, for appellant.

Samuel R.V. Garland, Assistant Attorney General, with whom John M. Formella, Attorney General of New Hampshire, and Anthony J. Galdieri, Senior Assistant Attorney General, were on brief, for appellee.

Before Kayatta, Howard, and Thompson, Circuit Judges.

HOWARD, Circuit Judge.

New Hampshire is among a handful of states that allow criminal prosecution of defamation. Appellant Robert Frese has twice been charged with violating the criminal defamation statute and now argues that the statute itself contravenes the First and Fourteenth Amendments. Mindful of the Supreme Court's guidance that "the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]" we conclude that Frese's allegations fall short of asserting viable constitutional claims. Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). We thus affirm the district court's dismissal.

I.

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." N.H. Rev. Stat. § 644:11(I). " ‘[P]ublic’ includes any professional or social group of which the victim of the defamation is a member." Id. at § 11(II). A person convicted of a class B misdemeanor faces a fine of up to $1,200. N.H. Rev. Stat. § 651:2(IV)(a). 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. See State v. Whitney, 172 N.H. 380, 382, 214 A.3d 614 (2019) ; State v. Foote, 149 N.H. 323, 324, 821 A.2d 1072 (2003) ; State v. Westover, 140 N.H. 375, 377-78, 666 A.2d 1344 (1995).

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. See State v. La Palme, 104 N.H. 97, 98-99, 179 A.2d 284 (1962) ("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." (citing State v. Urban, 98 N.H. 346, 100 A.2d 897 (1953) )); see also N.H. Rev. Stat. § 41:10-a (recognizing the power of police officers to prosecute misdemeanors). Private citizens may also prosecute misdemeanors in New Hampshire, so long as incarceration is not an applicable penalty. See State v. Martineau, 148 N.H. 259, 261, 263, 808 A.2d 51 (2002).¹

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.

Frese's second arrest generated public controversy. In response, the New Hampshire Attorney General interposed and concluded that the police department had arrested Frese without probable cause because there was no evidence that Frese knew his statements were false. The Exeter Police Department subsequently dropped the charges.

In late 2018, maintaining that he feared future arrest, Frese filed a complaint in federal district court asserting that section 644:11 is so vague as to violate the Fourteenth Amendment. After initial skirmishing, Frese filed an amended two-count complaint, which is the operative complaint before us. As before, the first count charges that section 644:11 "is unconstitutionally vague, both on its face and as applied in the context of New Hampshire's system for prosecuting [c]lass B misdemeanors," in violation of the Fourteenth Amendment. The second count asserts that the statute "violates the First Amendment because it criminalizes defamatory speech." The State moved to dismiss the amended complaint, and the district court obliged. After first finding that Frese had established standing to bring the case, the court dismissed for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).² Frese's timely appeal followed.

II.

We review the district court's dismissal of the complaint under Rule 12(b)(6) de novo. See Barchock v. CVS Health Corp., 886 F.3d 43, 48 (1st Cir. 2018) (citing SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc)). "We take the complaint's well-pleaded facts as true, and we draw all reasonable inferences in [Frese's] favor." Id. Well-pleaded facts are those that are " ‘non-conclusory’ and ‘non-speculative.’ " Id. (quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) ). To survive dismissal, "the complaint must ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Id. (quoting Tambone, 597 F.3d at 437 ).

A. First Amendment Claim

Frese argues that section 644:11 violates the First Amendment because criminal defamation laws should be per se unconstitutional. The Supreme Court, however, has upheld the criminalizing of false speech, explaining that deliberate and recklessly false speech "do[es] not enjoy constitutional protection." Garrison, 379 U.S. at 75, 85 S.Ct. 209. Thus, the state can "impose criminal sanctions for criticism of the official conduct of public officials" so long as the statements were made with " ‘actual malice’ -- that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not." Id. at 67, 85 S.Ct. 209 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 66 (1st Cir. 2003).

Frese concedes that Garrison forecloses his First Amendment claim but argues that "[t]he time has come to revisit that decision." But, as Frese acknowledges, we do not have the power to revisit Supreme Court decisions. See Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) ; United States v. Morosco, 822 F.3d 1, 7 (1st Cir. 2016) ("[B]ecause overruling Supreme Court precedent is the Court's job, not ours, we must follow [prior decisions] until the Court specifically tells us not to ... even if these long-on-the-books cases are in tension with [newer cases]."). Accordingly, we must find that Garrison precludes Frese's First Amendment attack on section 644:11.

B. Fourteenth Amendment Vagueness

"The vagueness doctrine, a derivative of due process, protects against the ills of laws whose ‘prohibitions are not clearly defined.’ " Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir. 2011), abrogated on other grounds by Ams. for Prosperity Found. v. Bonta, ––– U.S. ––––, 141 S. Ct. 2373, 210 L.Ed.2d 716 (2021) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ). A statute is impermissibly vague if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) ); see also Johnson v. United States, 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). This creates two avenues by which to attack a vague statute: discriminatory enforcement and lack of notice.

To prevent the chilling of constitutionally protected speech, we apply a "heightened standard" in cases involving the First Amendment and "require[ ] a ‘greater degree of specificity’ " in a statute that restricts speech. McKee, 649 F.3d at 62 (quoting Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ). Additionally, "if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness." Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019) (citing Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ). "But ‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’ " Williams, 553 U.S. at 304, 128 S.Ct. 1830 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ); see also McKee, 649 F.3d at 62.

Frese mounts a facial challenge to section 644:11, as well as a "hybrid" challenge. We first consider his facial challenge. To succeed, Frese must "establish that no set...