Louisiana Voice

Even as a federal appeals court judge is calling for repeal of the U.S. Supreme Court’s landmark New York Times v. Sullivan decision, a Louisiana legislator and acknowledged Donald Trump supporter has PRE-FILED HOUSE BILL 23 for the 2021 legislative session that would officially repeal a provision in Louisiana law that allows criminal prosecution for defamation but which was ruled unconstitutional 57 years ago.

Rep. Charles Owen, Ph.D., of DeRidder, told LouisianaVoice that criminal prosecution for defamation had already been ruled unconstitutional by the U.S. Supreme Court and his bill would simply make that part of the defamation law official.

“I am 100 percent in support of the First Amendment, freedom of speech and freedom of the press,” he said. “My bill does nothing to disturb any other provision of the defamation law, including New York Times v. Sullivan.”

One person who already learned an expensive lesson of the unconstitutionality of criminal punishment for defamation is former Terrebonne Parish Sheriff JERRY LARPENTER. Larpenter got a judge who was obviously oblivious to the law to sign a search warrant that allowed Larpenter to raid the home of a local blogger who had the temerity to criticize the sheriff on his blog. All the blogger’s computers, as well as those of his children, were seized in the raid and the blogger was arrested.

A federal judge quickly overturned the search warrant, the raid and the arrest while scolding the local judge about his ignorance of the law and the blogger sued Larpenter, eventually settling for about $250,000.

The same thing occurred later in St. Tammany Parish when Sheriff Randy Smith ARRESTED a former deputy, Jerry Rogers, for criminal defamation for comments he had made in an email to the family of a local murder victim that was critical of the languishing investigation of the sheriff’s office. (that murder remains no nearer to being solved than when it occurred in July 2017, more than three and one-half years ago.)

Louisiana’s Criminal Defamation statute was ruled unconstitutional as it applied to speech concerning public officials more than half-a-century ago by the U.S. Supreme Court, Rogers noted in his subsequent FEDERAL LAWSUIT against Smith that is currently pending in the U.S. District Court’s Eastern District.

Louisiana’s criminal defamation law dates back nearly 200 years, to 1825, when LOUISIANA STATE REP. EDWARD LIVINGSTON (U.S. Secretary of State from 1831-1833, and former law partner of Aaron Burr and Alexander Hamilton while living in New York) included it in his proposed penal code for the State of Louisiana.

But in 1960, the New York Times published a full-page ad by Martin Luther King Jr. supporters that was harshly critical of police in Montgomery, Alabama, for their brutal treatment of civil rights marchers. The ad contained several minor errors and Montgomery Police Commissioner L.B. Sullivan sued The Times in a local court for defamation. The case made its way all the way up to the U.S. Supreme Court which, in 1964, ruled that a plaintiff in a libel suit must prove that incorrect statements were made with “actual malice,” meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.

That is the decision that has come under recent attack from FEDERAL JUDGE LAURENCE SLIBERMAN, a Ronald Reagan appointee. His scathing dissent was contained in a libel in which he said the requirement to show “actual malice” in order to recover damages from a news organization for libel was a “policy-driven” result that justices simply invented out of whole cloth.

His dissent was eerily similar to that of Supreme Court Justice Clarence Thomas of two years ago in which he called for the Supreme Court to revisit the 1964 decision.

Silberman, D.C. Senior Judge, described both the New York Times and the Washington Post as “virtually Democratic Party broadsheets, adding that “Nearly all television – network and cable – is a Democratic Party trumpet.”

He somehow managed to ignore Fox News, One America News Network, Newsmax, Rush Limbaugh, Info Wars, The American Conservative, Breitbart News, the Epoch Times, the Federalist, WorldNetDaily, and a few dozen other right-wing organizations that offer their own versions of the truth in his diatribe.

The year 1964 was a busy one for liability law for the U.S. Supreme Court. Besides its ruling in New York Times v. Sullivan, it also took on a libel case involving flamboyant New Orleans District Attorney Jim Garrison who would capture international headlines a few years later when he became enmeshed in the infamous Clay Shaw prosecution in connection with the JFK assassination.

But in 1962, Garrison had responded to criticism of a huge backlog of cases in his office by placing the blame on the inefficiency and laziness of eight state judges, adding that the judges were hampering his efforts to enforce vice laws.

The judges had Garrison arrested, charging him under the 140-year-old criminal defamation law that up to then had been largely ignore and seldom invoked. Garrison was convicted under the statute and his case eventually made its way to the U.S. Supreme Court which ruled in the same year as the more publicized New York Times case that criminal defamation was unconstitutional.

And that’s where things remained until those sheriffs in Terrebonne and St. Tammany got their drawers in a wad over public criticism.

Now Owen, retired from the U.S. Air Force, has returned to Louisiana and gotten himself elected to the legislature. And one of his first acts is HB 23 which seeks to remove the references to criminal defamation from the lawbooks.

It’s a good bill and one that is long overdue and who knows? It might actually curtail foolish attempts by future sheriffs to use the unconstitutional law as a club to beat down criticism, aka freedom of speech under the First Amendment of the U.S. Constitution.