Frese v. MacDonald, Civil No. 18-cv-1180-JL

• Decision Date: 25 October 2019
• Docket Number: Civil No. 18-cv-1180-JL
• Citation: 425 F.Supp.3d 64
• Parties: Robert FRESE v. Gordon J. MACDONALD, In his official capacity only as Attorney General of the State of New Hampshire
• Court: U.S. District Court — District of New Hampshire

425 F.Supp.3d 64

Robert FRESE
v.
Gordon J. MACDONALD, In his official capacity only as Attorney General of the State of New Hampshire

Civil No. 18-cv-1180-JL

United States District Court, D. New Hampshire.

Signed October 25, 2019

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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, Nixon Vogelman Barry Slawsky & Simoneau PA, Manchester, NH, for Robert Frese.

Lawrence Edelman, Rebecca D. Ricard, NH Attorney General's Office, Concord, NH, for Gordon J. MacDonald, In his official capacity only as Attorney General of the State of New Hampshire.

MEMORANDUM OPINION

Joseph N. Laplante, United States District Judge

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This case concerns the constitutional permissibility of criminal defamation enforcement. The Attorney General of the State of New Hampshire ("the State") has moved to dismiss a pre-enforcement challenge to New Hampshire's criminal defamation statute, N.H. Rev. Stat. 644:11, on Article III standing and sufficiency grounds. Plaintiff Robert Frese, a self-described "outspoken" New Hampshire resident twice charged with criminal defamation, submits the statute is unconstitutional under the First and Fourteenth Amendments because it fails to provide fair notice of what conduct it prohibits and is highly susceptible to arbitrary enforcement. The question at this stage is two-fold: Does Frese's alleged fear of future prosecution amount to an "injury in fact" that confers standing to sue? And if so, does his complaint sufficiently plead that the statute is unconstitutionally vague? While the ultimate permissibility of the statute's enforcement remains to be determined, the preliminary answer to these standing and sufficiency questions is yes.

At the motion-to-dismiss stage, a plaintiff in a pre-enforcement case need only plead an intention to engage in conduct arguably affected with constitutional interest, but proscribed by a statute, and a credible threat of prosecution to allege an Article III injury in fact. Frese has cleared this bar by alleging an intent to publicly criticize law enforcement and public officials. Such speech occupies "the highest rung of the hierarchy of First Amendment values," see O'Connor v. Steeves, 994 F.2d 905, 915 (1st Cir. 1993), and is arguably proscribed by the criminal defamation statute's sweeping language. The threat of enforcement is also credible, given that in 2018, a municipal police department arrested and prosecuted Frese for accusing an officer of corruption. He has therefore alleged an injury in fact that confers standing to sue.

Additionally, to plead a void-for-vagueness claim, a plaintiff need only allege that a statute either fails to provide people of ordinary intelligence fair notice of the conduct it prohibits or encourages arbitrary and discriminatory enforcement. Again, Frese's allegations satisfy both theories. Although the statute's scienter element requires that the speaker know his speech is false and will tend to be defamatory, a question remains as to whether the statute adequately delineates the threshold between speech that is criminal rather than merely provocative. Additionally, Frese's allegations give reason to question whether the criminal defamation statute, when construed in the context it is enforced, encourages arbitrary and selective enforcement by municipal police departments, which retain the ability to prosecute misdemeanors like criminal defamation without the oversight of a licensed, state-sanctioned attorney. As such, Frese has stated a cognizable claim for relief. This court has jurisdiction under 28 U.S.C. § 1331.

I. Background

The following draws from the complaint's non-conclusory allegations and the submitted documents referenced therein. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019).

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

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which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule."¹ Infractions carry no jail time, but can result in a fine of up to $1,200, plus a 24 percent penalty assessment. See id. 651:2(IV)(a).

Municipal police departments in New Hampshire have been empowered since colonial times to initiate prosecutions for misdemeanors like criminal defamation without input or approval from a state-employed and legally trained prosecutor.² Because charges carry no possibility of imprisonment, criminal defamation defendants are not entitled to a trial by jury. See N.H. Const. Pt. 1, Art. 20 ; State v. Foote, 149 N.H. 323, 324, 821 A.2d 1072 (N.H. 2003). Additionally, state law does not afford indigent criminal defamation defendants the right to court-appointed counsel. See State v. Westover, 140 N.H. 375, 378, 666 A.2d 1344 (1985). While criminal defamation prosecutions are not common, records from the New Hampshire Judicial Branch suggest that over the past ten years, approximately 25 defendants were charged under the criminal defamation statute.³

Plaintiff Robert Frese, a self-described "outspoken resident of Exeter, New Hampshire," is one such individual and, in fact, has been prosecuted twice for criminal defamation. In 2012, the Hudson Police Department interviewed Frese after a local life coach complained about comments Frese posted on the online platform Craigslist.⁴ In those posts, Frese repeatedly called the coaching business a scam and claimed the coach had been charged with distributing heroin.⁵ The Hudson Police Department ultimately charged Frese with harassment and criminal defamation and obtained an arrest warrant signed by a justice of the peace.⁶ Frese, without counsel, pleaded guilty to the charges and was fined $1,488, with $1,116 suspended on the condition he stay in good behavior for two years.⁷

More recently, in 2018, the Exeter Police Department arrested and charged Frese with criminal defamation after he pseudonymously posted comments on the Exeter News-Letter's Facebook page concerning a retiring Exeter police officer.⁸ In his first comment, Frese, under the pseudonym "Bob William," stated that the retiring officer was "the dirtiest most corrupt cop that I have ever had the displeasure of knowing ... and the coward Chief Shupe did nothing about it."⁹ The Exeter News-Letter removed this comment at the

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police department's request.¹⁰ After the comment was deleted, Frese submitted a second comment under the pseudonym "Bob Exeter" stating: "The coward Chief Shupe did nothing about it and covered up for this dirty cop. This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people ...."¹¹

In the following days, Exeter Detective Mulholland discussed these comments with Chief Shupe, who in turn denied being aware of criminal acts by the retiring officer, denied covering up criminal conduct,¹² and "expressed his concern" that "false and baseless" comments "were made in a public forum."¹³ Upon reviewing the criminal defamation statute, both officers "believed that Frese crossed a line from speech to a violation of law."¹⁴ The next day, police officers interviewed Frese, who insisted his comments were true and revealed no other information suggesting he believed his online comments to be false.¹⁵ On this record, Detective Mulholland determined that "no credible information exist[ed] to believe that [the retiring officer] committed the acts Frese suggest[ed]."¹⁶ He therefore filed a criminal complaint against Frese.¹⁷ Based on this complaint and supporting police affidavits, a New Hampshire Circuit Court judge found probable cause to arrest Frese.¹⁸

Frese's 2018 arrest caused public controversy.¹⁹ Behind the scenes, the Rockingham County Attorney's Office, with which the Exeter Police Department contracts to prosecute its cases, sought the advice of the N.H. Office of the State.²⁰ In June 2018, the State's Civil Rights Division responded with a memorandum finding a lack of probable cause that Frese made his comments with "actual malice."²¹ Three days later, the Exeter Police Department dismissed its criminal complaint.²²

In light of these two arrests, Frese now claims that he fears future arrests or prosecutions for speech criticizing law enforcement and other public officials.²³ He alleges, on information and belief, that "individuals throughout New Hampshire routinely violate the criminal defamation statute, but [he] was arrested and prosecuted because he criticized law enforcement officials."²⁴ As such, he filed this lawsuit requesting declaratory and injunctive relief.

II. Applicable legal standard

A. Standing

"The Constitution limits the judicial power of the federal courts to actual cases

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