By DAMIEN FISHER, InDepthNH.org
The Exeter man, who was charged with criminal defamation for criticizing a police officer online, later argued the law was unconstitutional, but the First Circuit Court of Appeal ruled false testimony did not fall under the First Amendment.
Robert Frese has been charged with criminal defamation after he posted an anonymous comment online in which he called a retired Exeter police officer “the dirtiest[,] the most corrupt cop [Frese] Ha[d] ever had the displeasure of knowing that the officer’s daughter was a prostitute.”
New Hampshire is one of the few states that has a criminal defamation law on the books, allowing prosecutions of individuals who make “knowingly false statements” that expose the subject of those statements to “public hatred, contempt or ridicule.”
Read the verdict here.
Frese, whose publicly listed phone number is unconnected, was charged with criminal defamation in 2018 because his comments about the officer and his case caused an uproar. The charges were dropped after public outcry forced New Hampshire prosecutors to intervene in the case.
The Attorney General’s review found that police found no probable cause for the arrest and failed to prove that Frese knew his statements were false when he made them.
Frese then filed a lawsuit seeking to have New Hampshire’s criminal defamation statute unconstitutional, which was dismissed in the US District Court. Frese appealed.
The First Circuit Court of Appeals ruled Tuesday that while New Hampshire’s laws are troubling in a free society, New Hampshire’s law meets constitutional requirements.
“Having regard to the Supreme Court’s guidance that “knowingly false testimony and false testimony made in reckless disregard of the truth enjoy no constitutional protection[,]’ We conclude that Frese’s allegations are insufficient to establish viable constitutional claims,” Judge Jeffrey Howard wrote.
Howard assumed senior status March 31, having previously served as chief circuit judge from 2015 to 2022. Howard previously served as the United States Attorney for the District of New Hampshire and the Attorney General of New Hampshire.
Frese was represented by the New Hampshire American Civil Liberties Union. Gilles Bissonnette, legal director of the NH ACLU, did not respond to a request for comment.
The 2018 incident marked the second time Frese was charged with defamation. In 2012, he finally pleaded guilty to allegedly going online and calling the business of one of Hudson’s life coaches a fraud, and, according to the verdict, accused the man of, among other things, “being involved in a traffic incident and distributing heroin.” .
Frese eventually paid $372 in fines related to that guilty plea.
Frese has a rich history with Exeter Law Enforcement. According to an NHPR story, he was the subject of more than 100 police reports between 2001 and 2018, including neighborhood disputes, traffic violations and 63 house ban orders.
Judge O. Rogeriee Thompson, while agreeing with the ruling on constitutional grounds, notes that criminal defamation laws have a history in anti-democracy movements that attempted to quash dissent.
“(T)these laws have their origins in undemocratic systems that criminalized any speech criticizing officials. True, that’s not the current American system per se,” Thompson wrote. “But like it or not, this is where the roots of our system lie, and even given the rightfully elevated standards we apply in reviewing speech-restricting laws, it’s remarkable that we’re still confronted with laws.” are criminalizing speech in the first place.”
Thompson wrote that laws like New Hampshire’s are used selectively to silence critics of power, and that previous court rulings finding such laws constitutional are troubling in a free country.
“In my eyes, criminal libel laws — even those that require knowledge of the falsity of speech — simply cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech,” Thompson wrote.