home > legal work > case resolutions State of Utah v. Ian Michael Lake RICHARD A. VAN WAGONER (A4690) ROBERT J. SHELBY (8319) SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, Eleventh Floor Post Office Box 45000 Salt Lake City, Utah 84145 Telephone: (801) 521-9000   STEPHEN C. CLARK (A4551) AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 North 300 West, Suite 1 Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Attorneys for Ian Michael Lake IN THE FIFTH DISTRICT JUVENILE COURT BEAVER COUNTY, STATE OF UTAH   MOTION TO DISMISS PETITION STATE OF UTAH, in the interest of IAN MICHAEL LAKE, [A Person Under 18 Years of Age.] Case No. 968716 Judge Joseph E. Jackson. Ian Michael Lake hereby moves the Court to dismiss the charge against him on the ground that Utah’s criminal libel statute is unconstitutional on its face. A supporting Memorandum accompanies this Motion. DATED this 31 day of July, 2000 SNOW, CHRISTENSEN & MARTINEAU By Richard A. Van Wagoner AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. By Stephen C. Clark Attorneys for Ian Michael Lake MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PETITION I. Introduction and Summary This case involves an extraordinary, if not unprecedented, effort to bring the full weight of criminal law to bear on a 16 year old high school student for his part in a war of words. Ian Lake was a student at Milford High School. He and several of his classmates created Internet web sites. Those web sites included derogatory comments, in the vulgar but not uncommon vernacular of high school students, about various of the authors’ classmates and other students at the school. Ian’s web site, which was created off campus and without school resources, also included derogatory comments about the school principal, parodying him as the “town drunk.” The principal is a government and public figure who, on information and belief, had been hired by the local, publicly-elected school board. There was a longstanding history of ill-will as between Ian and the principal. Ian’s web site contained no threats of violence against anyone and no reference to weapons of any kind. Through the rumor mill in the small town, people inexplicably compared the web site with the horrifying violence at Columbine High School. Based on the viewpoints expressed on his web site, Ian was charged with two counts of criminal libel pursuant to Utah Code Ann. § 76-9-501 et seq., in a Petition filed herein, and he was incarcerated for seven days in an apparent effort to avoid a “Columbine”-type incident. At the first hearing in this matter, the Court dismissed one of the two counts, leaving in place the allegation Ian had violated the criminal libel statute by offering his opinion about the school principal. On information and belief, no other students who had created Internet web sites that made derogatory comments about others were charged with violation of Utah’s criminal libel statute or any other criminal violation. On information and belief, no other students who had created similar Internet web sites were incarcerated. Discovery and trial in this matter would demonstrate without a doubt that Ian’s speech, however offensive, was in no way criminal. But the Petition must be dismissed without subjecting this boy to the ordeal of a trial, because on its face, Utah’s criminal libel statute is unconstitutional. In 1964, the United States Supreme Court clearly defined the constitutional parameters of criminal libel statutes, incorporating a standard of “actual malice” that differed conceptually from the common law standard, which required only “ill will, hatred or enmity.” Statutes virtually identical to Utah’s criminal libel statute have uniformly been found to be unconstitutional on their face because, by failing expressly to incorporate the constitutionally mandated definition of malice, the statutes are vague and overly broad and thereby purport to criminalize constitutionally protected expression. Because of the high value our society properly places on free speech, the potential consequences of such vague and overly broad criminal laws – illustrated here – are simply unacceptable. For these reasons, the Petition should be dismissed. II. Statement of Facts 1. Ian lake is 16 and, and until near the end of the last school year, was a student at Milford High School. He now lives in California. 2. During the last school year, Ian created an Internet web site. He did this “in response to a previous site that was disparaging to a friend of his .... “ Beaver County Sheriff’s Office Investigative Narrative, attached as Exhibit A, p. 2; Interview with Ian Lake, dated May 18, 2000, attached as Exhibit B, p. 8. 3. In that previous site was a “guestbook” of “names and remarks by several of the persons he named in his site,” to whom many of Ian’s remarks responded. Exhibit A, p. 2. 4. Ian’s web site also included a characterization of the principal as a “town drunk.” Ian explained the bad blood between him and the principal: “I hate Wait, if you know anything about me and Walt, you know I hate Walt . . . .” Id. 5. The web site contains no threats of violence and makes no reference to weapons of any kind. 6. The web site references a song by the rock band named Rage Against the Machine. Ian’s purpose in referencing the song was because of the song’s stance against censorship, racism and prejudice. Exhibit B, p. 6. 7. Ian was shown printouts of web sites during his interview with authorities when they asked him to identify his own. For example, he was shown a web page labeled “Dirty Ho’s Home Page,” which he did not author. Exhibit B, pp. 2, 5. Defendant filed a Rule 16 Motion for Discovery seeking, among other items, copies of all Milford High School students’ web sites in the possession, custody or control of the State. The state’s response to the Discovery Motion asserts it has no other information or materials available, including the above-referenced web site printouts. 8. During the interview, the investigator informed Ian of the comparison between the web site and the incident at Columbine High School, but could not explain why the comparison was being made. Exhibit B, p. 12. 9. During the interview, the investigator informed Ian, “you are kind of known for liking to piss people off.” Exhibit B, p. 19. 10. Ian’s computer hardware and software were confiscated pursuant to a search warrant. 11. Ian was incarcerated for seven days. 12. To Ian’s knowledge no other students at Milford High School who had authored web sites were arrested, charged with crimes, incarcerated or relieved of their computer equipment pursuant to a search warrant, even though the investigator assured Ian he would seek to prosecute other alleged offenders. Exhibit B, p. 16. 13. The selective investigation, prosecution and incarceration of Ian arose, at least in part, out of parents’ concerns over rumors they were hearing, “and you know how rumors are in small towns.” Exhibit B, p. 15. “And you can say it on the street corner today and by tomorrow it will be 180 degrees backwards, and it will be ten times worse.” Id. Ian expressed his concern that “it comes back on me is the problem, is nothing happens to anybody else but it will come back on me.” Id. at 16. III. Argument Utah’s Criminal Libel Statute is Unconstitutionally Overbroad and Vague. Ian Lake is charged with one count of criminal libel in connection with information he posted on an Internet web site. The Utah criminal libel statute reads in part: For the purpose of this part: “Libel” means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending ... to impeach the honesty, integrity, virtue, or reputation, or publish the natural defects of one who is alive and thereby expose him to public hatred, contempt, or ridicule. A person is guilty of libel if he intentionally and with a malicious intent to injure another publishes or procures to be published any libel. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Utah Code Ann. §§ 76-9-501 to 503 (emphases supplied). This statute plainly requires “malice” only in the sense of ill will, hatred or lack of good faith, or at best is vague as to whether “actual malice” is required when the subject is a public figure, as is plainly the case here. [1] In Garrison v. Louisiana, 379 U.S. 64, 77-78 (1964), the Supreme Court held that to be constitutionally valid, a criminal libel statute must be limited to statements made with “actual malice” as defined in New York Times v. Sullivan, 376 U.S. 254 (1964), i.e., “with knowledge of their falsity or in reckless disregard of whether they are true or false.” Thus, the Court declared the Louisiana criminal libel statute facially unconstitutional because, among other things, it purported to punish statements made with common-law malice, i.e., ill will, hatred or enmity, and not the conceptually distinct standard of “actual malice” as defined in Sullivan. [2] In Ashton v. Kentucky, 384 U.S. 195, 201 (1966), the Court similarly concluded that one could not constitutionally be convicted for the common-law crime of criminal libel in Kentucky, stating: “Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.” Id. In the wake of Garrison and Ashton, lower courts have overwhelmingly found criminal libel and defamation laws to be facially unconstitutional, for overbreadth and/or vagueness, where such laws do not clearly and expressly incorporate the New York Times “actual malice” standard. In Tollett v. United States, 485 F.2d 1087 (8th Cir. 1973), the Court referred to the “ignominious history of the law surrounding criminal libel,” and noted that while most states have some type of statute punishing criminal libel, “commentators acknowledge that prosecutions under them are extremely rare.” Id. at 1094. The Court continued: “In fact, with the advent of Garrison and Ashton, a strong argument may be made that there remains little constitutional validity to criminal libel laws.” Id. A good summary of the law in this area is found in Phelps v. Hamilton, 828 F. Supp. 831 (D. Kan. 1993), (attached as Exhibit C). There the Court considered the constitutionality of the Kansas criminal defamation statute, which defined “criminal defamation” as “maliciously communicating to a person orally, in writing, or by any other means false information tending to expose another living person to public hatred, contempt or ridicule .... “ K.S.A. 21-4004. In the absence of any state court interpretation of the term “maliciously” in the statute, the Court declined (for obvious due process reasons) to perform surgery needed to save the statute; instead, it followed the Kansas criminal law definition, which it said did not differ significantly from the common-law definition, and observed that “this is not the same standard of ‘actual malice’ contemplated in New York Times.” 828 F. Supp. at 849. The Court then catalogued the cases where the “Courts uniformly have held criminal defamation statutes unconstitutional for not expressly recognizing the ‘actual malice’ standard,” including courts in Utah’s sister states of Colorado and New Mexico. Id. The Utah criminal libel statute appears not to have been applied or interpreted since the above United States Supreme Court cases. [3] On its face, however, and as previously applied and interpreted, Utah’s criminal libel statute clearly incorporates the common law definition of malice rather than the New York Times “actual malice” standard. The statute itself requires only a “malicious intent to injure.” Utah Code Ann. § 76-9-502. It presumes such intent in the absence of “justifiable motive.” Id. § 76-9-503(1). It even purports to criminalize true statements made with such intent. In People v. Glassman, 12 Utah 238, 42 P.956, 958 (Utah 1895), the Court stated: “[I]f a publication defamatory in character is found to be false, it is itself evidence of a malicious intent … and [even] a publication which is true, if made with malicious intent, and to defame another, is in violation of law.” Thus the Utah statute goes beyond even the common law, which held “a publisher strictly liable for his publication unless he could prove that the publication was either true or subject to a conditional privilege. There was no privilege for a good faith mistake of fact.” See Falwell v. Flynt, 797 F.2d 1270, 1275 (4th Cir. 1986). The Utah statute suffers from the same deficiencies as, if not greater deficiencies than, the Kansas statute in Phelps. Utah’s statute does not incorporate or reference the “actual malice” standard required in Garrison. [4] Instead, the malice standard permits a conviction for criminal libel based upon ill will, hatred or enmity (malice at common law). It also presumes malice – a critical element of the crime – based upon a lack of justifiable motive (or reason). The reason for publishing a statement has nothing to do with the “actual malice” standard mandated by Garrison. Finally, the statute may allow a conviction for truthful statements made for an unjustifiable motive. As the Court in Phelps stated: “The lack of a reckless disregard and knowing falsity element for criticism of public officials carries the real threat of deterring ‘a substantial amount of expression protected by the First Amendment.’” 828 F. Supp. at 850 (quoting People v. Ryan, 806 P.2d 935, 940 (Colo. 1991)). Thus the court had no problem finding the statute to be “substantially overbroad” and therefore unconstitutional. The contents of Ian Lake’s speech, and the viewpoints he expressed on his website, no doubt stirred public emotion in the town of Milford, and he has made no secret of his ill-will toward the school principal. But as the Kansas Court concluded, in language fully applicable here: The First Amendment stands as a bastion to protect expressions of both hate and love, tolerance and intolerance, and prejudice and compassion. Antipodal messages depend on each other to the extent that limiting the constitutional protection afforded one extreme ultimately could jeopardize the same protection available to the other. Consequently, in First Amendment litigation, a court strives to side only with the Constitution and to stay out of the public debate. Id. Ian should not have to undergo a trial and then the appellate process in a case involving the propriety of his speech. Instead, the threshold constitutional issues underlying this extraordinary, if not unprecedented, prosecution should be addressed and resolved first. As the United States Supreme Court explained: A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms .... When the statutes also have an overbroad sweep, . . . the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases.... For “[t]he threat of sanctions may deter ... almost as potently as the actual application of sanctions. ...”..... Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression – of transcendent value to all society, and not merely to those exercising their rights – might be the loser.... For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.... We have fashioned this exception to the usual rules governing standing ... because of the “. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” If the rule were otherwise, the contours of regulation would have to be hammered out case by case – tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.... By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure .... Dombrowski v. Pfister, 380 U.S. 479,486-87 (1965) (citations omitted). Even if Utah’s criminal libel statute could somehow be construed to require “actual malice,” it could not constitutionally be applied to Ian’s speech about the school principal in this case. That speech, as a matter of law, is nothing more than constitutionally protected opinion, satire or parody. [5] Defendant awaits the Court’s ruling on this Motion, however, to decide whether to approach the Court on a pre-trial motion relating to these issues, which may require gathering more information and placing it in the full context for the Court. IV. Conclusion In this case, the Constitution demands that the Utah criminal libel statute be declared unconstitutional on its face, and that the charge against Ian Lake based on that statute be dismissed. DATED this 1 day of August, 2000. SNOW, CHRISTENSEN & MARTINEAU By Richard A. Van Wagoner  AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. By Stephen C. Clark Attorneys for Ian Michael Lake Footnotes 1. It is well established that school principals are both governmental and public figures. See Rosenblatt v. Baer, 383 U.S.75, 85 (1986); Johnson v. Robbinsdale Ind. School Dist., 827 F. Supp. 1439, 1442-43 (D. Minn. 1993); Palmer v. Bennington School Dist., 615 A.2d 498, 501-02 (Vt. 1992). 2. The Utah Supreme Court has fully embraced the holdings of New York Times and Garrison. See Van Dyke v. KUTV, 663 P.2d 52, 54 (Utah 1983). 3. Defendant has been unable to locate any reported decision in Utah purporting to interpret or apply Utah’s criminal libel statute since 1895. 4. Under the “Definitions” section of the Utah Criminal Code, “maliciously” is defined as follows: A person engages in conduct: Recklessly, or maliciously, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed form the actor’s standpoint. This definition is of no assistance because it fails to incorporate the New York Times standard of “actual malice.” Moreover, this standard applies only to the foreseeability of an outcome. 5. “The obscurity of [a] joke does not deprive it of First Amendment support. First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed” Yankee Publishing, Inc. v. News America Publishing, Inc., 809 F. Supp. 267, 280 (S.D.N.Y. 1992).

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