Frese v. MacDonald

Citation512 F.Supp.3d 273
Decision Date12 January 2021
Docket NumberCivil No. 18-cv-1180-JL
Parties Robert FRESE v. Gordon J. MACDONALD, in his official capacity only as Attorney General of the State of New Hampshire
CourtU.S. District Court — District of New Hampshire

Brian M. Hauss, Pro Hac Vice, Emerson J. Sykes, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Henry Klementowicz, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, John M. Greabe, Hopkinton, NH, Lawrence A. Vogelman, Shaheen & Gordon PA, Dover, NH, for Robert Frese.


Joseph N. Laplante, United States District Judge

This case concerns the facial constitutionality of New Hampshire's criminal defamation statute, N.H. Rev. Stat. § 644:11, under the First and Fourteenth Amendments. The State of New Hampshire has moved to dismiss plaintiff Robert Frese's amended complaint on standing and sufficiency grounds. See Fed. R. Civ. P. 12(b)(1), (6). In late 2019, the court denied a previous motion to dismiss because the State had failed to show that Frese's original allegations were legally insufficient to state a constitutional claim and because Frese had sufficiently pled his standing to sue. See Frese v. MacDonald, 425 F. Supp. 3d 64, 82 (D.N.H. 2019).1 In 2020, the court also denied a motion for reconsideration by the State which misconstrued the court's 2019 order and raised new arguments and authority which were not developed in the State's first motion to dismiss. In doing so, the court deemed the State's new arguments waived for the purposes of the motion, but reserved the right to revisit the State's new arguments and authority in a later procedural posture if they were properly raised.2

In the wake of these decisions, Frese amended his original complaint to clarify the legal basis for his claims, giving the State the opportunity to challenge anew. Again, the State argues that Frese lacks standing and fails to state a claim, citing newly provided authority that sharpens the State's previous arguments. Additionally, the State newly contends that First Circuit precedent precludes Frese from maintaining his facial constitutional claims under the First and Fourteenth Amendment of the U.S. Constitution. After considering the parties’ arguments, as refined by Frese's amended pleading and motion practice in this case, the court concludes that Frese's allegations cannot sustain his asserted constitutional claims. The court thus grants the State's motion and dismisses Frese's complaint in its entirety for failing to state a claim. See Fed. R. Civ. P. 12(b)(6).

I. Background

The court has provided a more thorough account of the factual allegations underlying this case in its prior orders.3 The following draws from those prior accounts, restates the most pertinent facts, and recounts more recent procedural history.

A. The criminal defamation statute and the police prosecutions of Frese

New Hampshire's criminal defamation statute, N.H. Rev. Stat. § 644:11, provides: "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."4 Because the offense is a Class B misdemeanor, the applicable penalties do not include incarceration. Instead, those convicted face a fine of up to $1,200, see id. § 651:2(IV)(a), have no right to a trial by jury, see State v. Foote, 149 N.H. 323, 324, 821 A.2d 1072 (2003), and are not afforded court-appointed counsel if they are indigent, see State v. Westover, 140 N.H. 375, 378, 666 A.2d 1344 (1995).

Although prosecutions for criminal defamation in New Hampshire are not common, plaintiff Robert Frese has been charged twice under § 644:11. In 2012, the Hudson Police Department arrested Frese for comments he posted on the online platform Craigslist about the owner of a local life coaching business.5 Without counsel, Frese pled guilty and was fined $1,488, with $1,116 conditionally suspended.6 Then, in 2018, the Exeter Police Department arrested and prosecuted Frese for comments he pseudonymously posted on an online newspaper article's comments section about a retiring Exeter police officer who Frese considered corrupt.7 This arrest caused public controversy, and Frese's case was eventually referred to the N.H. Attorney General's Office. Its Civil Rights Division opined that there was no probable cause that Frese violated the criminal defamation statute, even though a New Hampshire Circuit Judge had initially found probable cause to arrest Frese based on the police department's submitted filings.8 Three days after the Attorney General reported this conclusion, the Exeter Police Department dropped its charges against Frese.9

B. Litigation of the state's first motion to dismiss

At the end of 2018, Frese, allegedly fearing future arrests or prosecutions for criticizing law enforcement and other public officials, filed a complaint requesting that this court declare the criminal defamation statute overbroad and void for vagueness. The State, in turn, moved to dismiss on standing and sufficiency grounds.10

In September 2019, the court held oral argument, at which it gave the parties ample opportunity to explain the arguments advanced in their written submissions. At the hearing, the court questioned counsel about how the statute's historical enforcement impacted the constitutional questions presented—an issue addressed at no point in the State's briefing. The court also allowed the parties to submit supplemental briefing on this question, and while Frese's counsel submitted a supplemental brief,11 the State's counsel neither submitted supplemental authority nor responded to the authority submitted by Frese.

The following month, the court denied the State's motion to dismiss. In doing so, the court emphasized that the parties (and the public) should not interpret the preliminary decision as holding "that New Hampshire's criminal defamation statute is unconstitutional on its face."12 425 F. Supp. 3d at 82. Rather, the court's holding was limited to the narrow issue before it under Rule 12(b)(6) : that on the record and arguments briefed by the parties, the State had failed to show that Frese had not stated a claim as a matter of law.13 Id.

In an unusual step, the State then asked the court to reconsider the decision denying the motion to dismiss on the argued grounds that the decision rested on purportedly manifest errors of law.14 The court denied the State's request without oral argument, as the State's arguments rested on a misconstruction of the October 25 Order's plain language, as well as authorities that the State had failed to raise in support of its motion to dismiss, even after the court had invited the State to supplement its briefing.15 In doing so, the court made clear that it took "no position" on the State's new arguments and would "revisit them if raised properly at a later procedural posture."16

C. Amended complaint

In April 2020, Frese amended his complaint to clarify the nature of his constitutional claims.17 In Count 1, as amended, he maintains his original claim that the criminal defamation statute "is unconstitutionally vague, both on its face and as applied in the context of New Hampshire's system for prosecuting Class B misdemeanors," in violation of the Fourteenth Amendment. In Count 2, he newly pleads that the statute violates the First Amendment's prohibition against government abridgment of speech because it criminalizes speech which civil remedies can sufficiently address. This prompted the State to file the instant motion, which not only re-asserts the State's previous arguments, but also advances new arguments concerning the sufficiency of Frese's facial vagueness claims under First Circuit precedent. The court now turns to these arguments.

II. Applicable legal standard

A. Standing

"The Constitution limits the judicial power of the federal courts to actual cases and controversies." Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir. 2012) (citing U.S. Cons. Art. III, § 2 cl. 1 ). "A case or controversy exists only when the party soliciting federal court jurisdiction (normally, the plaintiff) demonstrates ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.’ " Id. (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ).

"To satisfy the personal stake requirement a plaintiff must establish each part of a familiar triad: injury, causation, and redressability." Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); see also Massachusetts v. U.S. Dep't of Health & Human Servs., 923 F.3d 209, 221 (1st Cir. 2019) (explaining that the burden of alleging facts sufficient to prove these elements rests with the party invoking federal jurisdiction). "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof," which is, "with the manner and degree of evidence required at the successive stages of the litigation." Katz, 672 F.3d at 72 (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ) (internal quotation marks omitted).

In considering a pre-discovery grant of a motion to dismiss for lack of standing, the court "accept[s] as true all well-ple[d] factual averments in the plaintiff's ... complaint and indulge[s] all reasonable inferences therefrom in his [or her] favor." Id. at 70. And while generally the court does not consider materials outside the pleadings on a motion to dismiss, it may look beyond the pleadings—to affidavits, depositions, and other materials—to determine jurisdiction. See Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002) ; Strahan v. Nielsen, No. 18-cv-161-JL, 2018 WL 3966318, at *1 (D.N.H. Aug. 17, 2018).

B. Statement of a claim

The court...

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