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Frese v. MacDonald

United States District Court, D. New Hampshire

October 25, 2019

Robert Frese
Gordon J. MacDonald, In his official capacity only as Attorney General of the State of New Hampshire

          Brian M. Hauss, Esq., Emerson J. Sykes, Esq., Henry Kleentowicz, Esq., John M. Greabe, Esq., Lawrence A. Vogelman, Esq., Gilles R. Bissonnette, Esq. Lawrence Edelman, Esq. Robecca D. Ricard, Esq.


          Joseph N. Laplante United States District Judge

         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 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 (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 (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 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 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 (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. Defenders of Wildlife, 504 U.S. 555, 560-61 (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) (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-pleaded factual averments in the plaintiff's . . . complaint and indulge[s] all reasonable inferences therefrom in his 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 Gonzales v. United States, 284 F.3d 281, 288 (1st Cir. 2002); Strahan v. Nielsen, 18-CV-161, 2018 WL 3966318, at *1 (D.N.H. Aug. 17, 2018).

         B. Statement of a claim

         Rule 12(b)(6) imposes a similar standard. See Katz, 672 F.3d at 71 (citing Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006)). The court makes determinations about the sufficiency of a complaint through a “holistic, context-specific analysis.” Gilbert, 915 F.3d at 80. First, it “isolate[s] and ignore[s] statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements.” Zenon v. Guzman, 924 F.3d 611, 615 (1st Cir. 2019) (citations and quotation marks omitted). It then “evaluate[s] whether the remaining factual content supports a ‘reasonable inference that the defendant is liable for the misconduct alleged.'” In re Curran, 855 F.3d 19, 25 (1st Cir. 2017) (quoting Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012)); see also Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) (“The purpose of Rule 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.”).

         In doing so, the court must accept “all well-pled facts in the complaint as true” and construe all reasonable inferences in the plaintiff's favor. See Gilbert, 915 F.3d at 80. In addition, the court may consider documents attached as exhibits or incorporated by refence in the complaint. See Trans-Spec Truck Serv, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). But the court “need not give weight to bare conclusions, unembellished by pertinent facts.” Shay, 702 F.3d at 82-83. If the complaint's factual averments are “too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, ” dismissal will be warranted. SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).

         III. Analysis

         The State contends that the complaint should be dismissed for two reasons. First, he contends that the court lacks subject matter jurisdiction because Frese has not alleged an intent to engage in speech that is both protected under the First Amendment and proscribed by the statute, as required for pre-enforcement standing to sue. Second, he argues that Frese has failed to state a void-for-vagueness claim under the Fourteenth Amendment because the criminal defamation statute “define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, ” and imposes no criminal penalties unless a person knows his or her speech is defamatory.[25] As discussed herein, the court finds that Frese has adequately pleaded his standing to challenge the criminal defamation statute, as well as a claim that the statute is unconstitutionally vague.

         A. Standing

         The State first argues that Frese cannot establish standing because he has not alleged an intention to engage in conduct proscribed by the criminal defamation statute, N.H. Rev. Stat. 644:11. The statute only criminalizes speech that a speaker “knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.” Id. (emphasis added). The State contends that because Frese has not alleged he intends to engage in speech he knows to be false and defamatory, Frese has failed to allege an intent to engage in speech proscribed by the statute.[26] Alternatively, the State contends that had Frese alleged such an intent, his planned conduct would enjoy no constitutional protection.[27] The court disagrees: Supreme Court precedent makes clear that a plaintiff in a pre-enforcement challenge of a law's constitutionality need not confess that he or she will in fact violate that law before filing suit.

         “‘The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.'” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013)). “In keeping with the purpose of this doctrine, ” the courts' “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [it] to decide whether an action taken by” a state legislature or executive was unconstitutional. Clapper, 568 U.S. at 408 (quoting Raines v. Byrd, 521 U.S. 811, 819-20 (1997)) (internal quotation marks omitted); see Griswold v. Connecticut, 381 U.S. 479, 481 (1965).

         The “[f]irst and foremost” concern in standing analysis is the requirement that the plaintiff establish an injury in fact, Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (alteration in original) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)), which “helps to ensure that the plaintiff has a ‘personal stake in the outcome of the controversy, '” SBA List, 134 S.Ct. at 2341 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To satisfy Article III, the injury must be “concrete and particularized” and “actual or imminent, not ‘conjectural' or ‘hypothetical.'” Id. (quoting Lujan, 504 U.S. at 560) (internal quotation marks omitted).

         Here, Frese mounts a pre-enforcement challenge to the criminal defamation statute; in other words, he is not a defendant in a pending criminal case. “In certain circumstances, ‘the threatened enforcement of a law' may suffice as an ‘imminent' Article III injury in fact.” Reddy v. Foster, 845 F.3d 493, 500 (1st Cir. 2017) (quoting SBA List, 134 S.Ct. at 2342). “The rationale for pre-enforcement standing is that a plaintiff should not have to ‘expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.'” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,' or [if] there is a ‘“substantial risk” that the harm will occur.'” SBA List, 134 S.Ct. at 2341 (quoting Clapper, 568 U.S. at 414 n.5). In the context of the First Amendment, “two types of injuries may confer Article III standing without necessitating that the challenger actually undergo a criminal prosecution.” Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). The first is when “the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (emphasis added); accord Mangual, 317 F.3d at 56. The second is when a plaintiff “is chilled from exercising [his or] her right to free expression or forgoes expression in order to avoid enforcement consequences.” N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996). Frese's opposition focuses on the former type of injury. He contends that the threat that the government will prosecute him in the future for his speech constitutes an Article III injury in fact. The court agrees, finding that his allegations satisfy all three elements for a credible threat-of-enforcement injury.

         1. Constitutional interest

         First, Frese has alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, ” see Babbit, 442 U.S. at 298, particularly, “speech criticizing law enforcement and other public officials.”[28] “‘[T]he right to criticize public officials' is protected by the First Amendment.” Bourne v. Arruda, No. 10-cv-393, 2011 U.S. Dist. Lexis 62332, at *40 (D.N.H. June 20, 2011) (quoting Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 588 (6th Cir. 2008)). Although the complaint identifies no specific statements that Frese intends to make in the future, it intimates that Frese intends to engage in speech resembling his past critiques, which include criticism of law enforcement officers.[29] See Martin v. Evans, 241 F.Supp.3d 276, 283 (D. Mass. 2017) (Saris, C.J.) (concluding that Supreme Court precedent does not require plaintiffs to allege specific language to establish a pre-enforcement injury in fact). Such speech is certainly “affected with a constitutional interest.” Martin, 241 F.Supp.3d at 282-83; see also See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007) (“Statements exposing possible corruption in a police department are exactly the type of statements that demand strong First Amendment protection.”); Mangual, 317 F.3d at 58 (finding a pre-enforcement injury in fact where a journalist stated “an intention to continue covering police corruption”); O'Connor, 994 F.2d at 915 (holding that speech concerning the alleged abuse of public office occupies “the highest rung of the hierarchy of First Amendment values”); Wagner v. City of Holyoke, 241 F.Supp.2d 78, 91 (D. Mass. 2003) (holding that statements comprising evidence of possible corruption within a police department “are precisely the type of communications that demand strong First Amendment protection”).

         2. ...

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