American citizens think they are free to speak their minds and let their voices be heard. But are they really? In some states, criminal defamation is enforced, meaning that speech and press aren’t as free as the Founding Fathers intended. In order to preserve democracy, it is necessary that states repeal criminal libel laws.
Free speech does have limits under the First Amendment. While the government does not regulate speech that is simply false or offensive, it can regulate speech that incites immediate violent action or that harms another person. However, the government needs to ensure that any regulation imposed is strictly tailored to only that part of speech that was causing harm or violence. Otherwise, there is a risk that speech regulation can have a chilling effect. Chilling effects ensure that increasing amounts of people hesitate to exercise their rights and speak up for fear of retribution or consequences.
When speech is correctly regulated, the government can moderate harmful situations without causing chilling effects. When poorly regulated, there can be serious threats posed to democracy. One example of poor regulation is existing criminal defamation laws. A criminal defamation law makes it possible for a police officer or government prosecutor to criminally charge a person in court for a defamatory statement. While many states have criminal defamation laws, New Hampshire has a particularly problematic law that is currently being challenged as unconstitutional in U.S. District Court.
Free speech is essential to America’s democracy. To paraphrase John Stuart Mill, free speech creates a marketplace of ideas. In the ideal marketplace of ideas, everyone is free to discuss their views and opinions. These ideas are then free to be examined and discussed by all. This free discussion allows ideas to be revised, reformed, and reconsidered until the best ideas are able to rise above the others. Peter Tatchell, a human rights activist, said, “Bad ideas are most effectively defeated by good ideas–backed up by ethics, reason–rather than bans and censorship.” Open exchange of information also creates a societal pressure release valve of sorts. Inequalities and injustices present in the system are able to be discussed freely, ideally leading to changes in the system. Criminal defamation laws are an impediment to the free expression of societal injustices as an individual may fear negative repercussions from speaking up about their situation.
Encouraging the Utah Senate to repeal a criminal defamation law, Ed Carter said in his 2006 testimony:
“In reality, criminal libel does not serve as an effective deterrent in today’s society to injurious words. The civil law of libel provides sufficient deterrent and remedies, whereas the criminal libel law serves now only as an inappropriate punishment tool used against those engaged in legitimate political and societal discourse. That type of chilling is antithetical to the long line of precedent both in Utah and from the U.S. Supreme Court recognizing the primacy of political dialogue to our system of government.“
As Americans, we should not fear criminal backlash for exercising our First Amendment rights. Political dialogue, and an open marketplace of ideas, is foundational in securing our democracy. Democracy is threatened as long as criminal defamation laws stay on the books.