For my Sunday column on the likely demise of Minnesota's criminal defamation law, I delved into the state court system's (electronic) archives to learn what I could about the prosecution of alleged defamers. Not one appeared to be speaking truth to power. But the state law conflicted with the First Amendment, and the Constitution usually wins that battle.
In recent decades, federal courts have consistently ruled on the side of freedom of speech, Eugene Volokh, a constitutional law professor at UCLA, told me last week. Many state defamation laws have narrowed or fallen as a result, he said, although the Upper Midwest remains a holdout. Wisconsin prosecutors in particular aggressively pursue that state's criminal libel law, Volokh said.
Though I'm no lawyer, that statute appears to have the same flaw as the one recently jettisoned in Minnesota. Truth is only a defense if the defamatory speech "was communicated with good motives and for justifiable ends." Who do you trust to make that call?
Image above from the National Archives