Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, July 10, 2008

Washington Appellate Court Rules Criminal Libel Statute Unconstitutional

In Parmalee v. O'Neel, the Washington Court of Appeals, Division II, has ruled a state statute prohibiting criminal libel unconstitutional. Washington Revised Statute (RCW) 9.58.010 prohibits "exposure of any living person or the memory of the dead to hatred, contempt, ridicule or obloquy, or injury to a business
relationship", making such behavior "a gross misdemeanor."

Allen Parmalee, a prison inmate, filed suit against the Washington Department of Corrections claiming that it improperly punished him under the statute for language he used in a letter he sent to the Superintendent of Prisons. "Parmelee first challenges the constitutionality of Washington's criminal libel statutory scheme, RCW 9.58.010 and .020, under which DOC punished him for the language in his letter to
Superintendent Clarke.  He alleges that the statute is facially unconstitutional under Garrison v.
Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964).  Therefore, Parmelee contends
that the superior court erred when it dismissed his claims under CR 12(b)(6) and found that DOC
may rightly rely on chapter RCW 9.58 as basis for its actions against him. "

Said the appellate court, "A plain reading of RCW 9.58.020 reveals that Washington's criminal libel statutory scheme does not meet  minimum constitutional standards under Garrison.   Specifically, RCW 9.58.020 is unconstitutional because it does not justify excuse from prosecution (1)  false
10 RCW 9.58.010 provides:
       Every malicious publication by writing, printing, picture, effigy, sign[,] radio
       broadcasting or which shall in any other manner transmit the human voice or
       reproduce the same from records or other appliances or means, which shall tend: --
              (1)     To expose any living person to hatred, contempt, ridicule or
       obloquy, or to deprive him of the benefit of public confidence or social intercourse;
              (2)     To expose the memory of one deceased to hatred, contempt,
       ridicule or obloquy; or
              (3)     To injure any person, corporation or association of persons in his or
       their business or occupation, shall be libel.  Every person who publishes a libel
       shall be guilty of a gross misdemeanor."


"...[I]n  Garrison, the Supreme Court explicitly held  that the First and Fourteenth
Amendments prohibit criminal punishment for false speech under statutes that do not require a
showing of actual malice.   Garrison, 379 U.S. at  67.  This is precisely what Washington's
criminal liable statute does:  it permits punishment for false statements not made with actual
malice.  See Garrison, 379 U.S. at 67.  A speaker may face prosecution under Washington's
statute if she makes a false statement unless it was  "honestly made in belief of its truth and
fairness and upon reasonable grounds for such belief, and consists of fair comments upon the
conduct of any person in respect of public affairs, made after a fair and impartial investigation." 
RCW 9.58.020.    This standard in no way comports with the "actual malice" standard set forth in
Garrison.  Garrison, 379 U.S. at 67; New York Times, 376 U.S. at 279-80.
       Likewise, the Garrison Court explicitly held that the First and Fourteenth Amendments
absolutely prohibit punishment of truthful criticism where discussion of public affairs is concerned. 
Garrison, 379 U.S. at 74. Contrary to this absolute rule, RCW 9.58.020 justifies true statements
when a person publishes them with "good motives and for justifiable ends." Thus, because RCW
9.58.020 permits punishment of true statements not made with good motives or for justifiable
ends, it does not survive constitutional scrutiny.  See Garrison, 379 U.S. at 67, 73-74. In fact,
the Garrison Court cited Washington's criminal libel law as an example of the type of statute that
failed constitutional scrutiny.  Garrison, 379 U.S. at 70 n.7. It is clear, therefore, that Washington's criminal libel statutory scheme does not meet the constitutional standards demanded under Garrison because it permits prosecution of persons for making false statements without actual malice and/or making true statements without good motive or intent.  See Garrison, 379 U.S. at 73-74."

The Court also found that the statute was overbroad. "We hold that Washington's criminal libel statute is facially unconstitutional and is likewise unconstitutional for overbreadth and vagueness.  We vacate the infraction based on the unconstitutional statute.  We reverse the trial court's dismissal under CR 12(b)(6) and remand for further proceedings at which Parmelee may raise his claims for damages against DOC for violating his First Amendment rights, violating substantive due process, and retaliating against him."

Read the entire opinion here.

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