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State of Utah v. Ian Michael Lake | Brief of Appellant

01 August 2001 Published in Litigation Materials

State of Utah v. Ian Michael Lake

IN THE SUPREME COURT FOR THE STATE OF UTAH
In re I.M.L., [A Person Under 18 Years of Age] Defendant/Appellant.
Supreme Court No. 20010159-SC
Priority No. 8

BRIEF OF APPELLANT

Stephen C. Clark (4551)
Janelle P. Eurick (8801)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103
Telephone: (801) 521-9862

Richard A. Van Wagoner (4690)
Robert J. Shelby (8319)
Snow, Christensen & Martineau
10 Exchange Place, 11th Floor
P.O. Box 45000
Salt Lake City, Utah 84145
Telephone: (801) 521-9000

Attorneys for Appellant I.M.L.

J. Frederic Voros, Jr.
Utah Attorney General’s Office
160 East 300 South, 6th Floor
Salt Lake City, Utah 84114

Attorneys for Respondent State of Utah

Jeffrey J. Hunt
David C. Reymann
Parr Waddoups Brown Gee & Loveless
185 South State Street, Suite 1300
Salt Lake City, Utah 84111

Attorneys for Amici Curiae The Reporters Committee for Freedom of the Press, the Student Press Law Center, and the Utah Chapter of the Society of Professional Journalists

TABLE OF CONTENTS
Table of Authorities
Statement of Jurisdiction
Statement of Issues and Standard of Review
Constitutional Provisions, Statutes, and Ordinances at Issue
Statement of Case
1. Nature of the Case
2. Course of Proceedings and Disposition in the Trial Court
Statement of Facts
Summary of Argument
Argument
I. History of Criminal Libel Statutes Generally
A. Criminal Libel Statutes Ostensibly Developed to Prevent “Breaches of the Peace”; They Often Served, However, to Suppress Criticism of Political and Religious Leaders and Other Public Officials
II. Limitations on Criminal Libel Statutes based on Application of Modern Constitutional Principles
A. The Federal Constitution Requires that Criminal Libel Statutes Expressly Include “Actual Malice” as an Element of the Crime
B. Lower Courts Applying the Federal Constitutional Requirements Have Concluded that Criminal Libel Statutes that Fail Expressly to Include “Actual Malice” as an Element of the Crime are Unconstitutionally Overbroad and/or Vague
III. Analysis of Utah’s Criminal Libel Statute in Light of Modern Constitutional Principles
A. utah’s Criminal Libel Statute Does Not Expressly Incorporate the Necessary Constitutional Requirements; It Is Therefore Facially Overbroad and Cannot Be Enforced
B. This Court Cannot Properly Rewrite Utah’s Criminal Libel Statute to Include the Requisite “Actual Malice” Standard
Conclusion
Mailing Certificate
Appendix

TABLE OF AUTHORITIES
Federal Cases
American Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999)
Ashton v. Kentucky, 384 U.S. 195 (1966)
Broadrick v. Oklahoma, 413 U.S. 601 (1973)
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
Erznoznick v. City of Jacksonville, 422 U.S. 205 (1975)
Fitts v. Kolb, 779 F. Supp. 1502 (D.S.C. 1991)
Garrison v. Louisiana, 379 U.S. 64 (1964)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1975)
Gilbert v. United States, 370 U.S. 650 (1962)
Grayned v. City of Rockford, 408 U.S. 104 (1972)
Houston v. Hill, 482 U.S. 451 (1987)
Hustler v. Falwell, 485 U.S. 46 (1988)
Ivey v. State, 2001 WL 755666
Johnson v. Robbinsdale Ind. Sch. Dist., 827 F. Supp. 1439 (D. Minn. 1993)
Kolender v. Lawson, 461 U.S. 352 (1983)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
Rosenblatt v. Baer, 383 U.S. 75 (1966)
Smith v. Goguen, 415 U.S. 566 (1974)
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)

State Cases
Berrett v. Purser & Edwards, 876 P.2d 367 (Utah 1994)
Celebrity Club, Inc. v. Utah Liquor Control Comm”n, 657 P.2d 1293 (Utah 1982)
Commonwealth v. Armao, 286 A.2d 626 (Pa.1970)
Cox v. Hatch, 761 P.2d 556 (Utah 1988)
Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P. 2d 1252 (Utah 1996)
Eberle v. Municipal Court of Los Angeles District, 55 Cal. App. 3d 423 (Cal. App. 1976)
Gottschalk v. State, 575 P.2d 289 (Alaska 1978)
Greenwood v. City of North Salt Lake, 817 P.2d 816 (Utah 1991)
Kapiloff v. Dunn, 343 A.2d 251 (Md. App. 1975), cert. denied, 426 U.S. 907 (1976)
Logan City v. Carlsen, 585 P.2d 449 (Utah), cert. denied, 439 U.S. 1131 (1978)
Montana v. Helfrich, 922 P. 2d 1159 (Mon. 1996)
New Jersey v. Stults, 86 N.J. Super. 217 (1965)
Ogden Bus Lines v. KSL, Inc., 551 P.2d 222 (Utah 1976)
Palmer v. Bennington Sch. Dist., 615 A.2d 498 (Vt. 1992)
People v. Glassman, 42 P. 956 (1895)
People v. Ritchie, 42 P.209 (1895)
People v. Ryan, 806 P.2d 935 (Colo. 1991)
Reaves v. Foster, 200 So. 2d 453 (Miss.1967)
State v. Bohne, 2001 UT App. 11, 18 P.3d 514 (Utah 2001)
State v. Defley, 395 So. 2d 759 (La.1981)
State v. Kennedy, 616 P.2d 594 (Utah 1980)
State v. Lopes, 1999 UT 24, 980 P. 2d 191
State v. Pharris, 846 P.2d 454 (Utah Ct. App.), cert. denied, 857 P.2d 948 (Utah 1993)
State v. Powell, 839 P.2d 139 (N.M. Ct. App. 1992)
State v. Rudolph, 970 P.2d 1221 (Utah 1998)
State v. Vigil, 842 P.2d 843 (1992)
State v. Winkle, 528 P.2d 467 (Utah 1974)
State v. Ledkins, 5 Utah 2d 422 (1956)
Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983)
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Weston v. State, 528 S.W.2d 412 (Ark. 1975)

State Statutes and Constitutional Provisions
Utah Code Ann. § 76-1-104
Utah Code Ann. § 76-1-106
Utah Code Ann. § 76-9-501
Utah Code Ann. § 76-9-502
Utah Code Ann. § 76-9-503
Utah Code Ann. §§ 76-9-501 through 503
Utah Code Ann. §§ 103-38-1 - 103-38-8
Utah Code Ann. §§ 76-40-1 - 76-40-8
Utah Const. Art. I, § 15

Other Authorities
Note, Give the Dead Their Day in Court: Implying a Private Cause of Action for Defamation of the Dead from Criminal Libel Statutes, 9 Fordham Intell. Prop. Media & Ent. L.J. 1083 (1999)
Comment, Jury Nullification Should Be Made a Routine Part of the Criminal Justice System, but It Won’t Be, 29 Ariz. St. L.J. 1127, 1130 (1997)
Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Texas L. Rev. 984,985-86 (1956)

STATEMENT OF JURISDICTION
Jurisdiction is proper in this Court pursuant to Utah Const. Art. VIII, § 3 and Utah Code Ann. § 78-2-2(3)(b) (2000).

STATEMENT OF ISSUES AND STANDARD OF REVIEW
The issue in this case is whether the Utah criminal libel law, as set forth in Utah Code Ann. §§ 76-9-501 through 503 and Utah Const. Art 1 Sec. 15, is unconstitutional on its face, and therefore unenforceable, because it is overbroad and/or vague in violation of the First, Fifth and Fourteenth Amendments to the United States Constitution. The issue was preserved in the trial court in appellant’s Motion to Dismiss Petition [Legal Index #10] and related proceedings.

A constitutional challenge to a statute presents a question of law that is reviewed for correctness. See State v. Lopes, 1999 UT 24, ¶ 6, 980 P. 2d 191. The propriety of a trial court’s decision to grant or deny a motion to dismiss is also a question of law that is reviewed for correctness. See Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P. 2d 1252, 1253 (Utah 1996).

CONSTITUTIONAL AND STATUTORY PROVISIONS
The following provisions of the United States Constitution, the Utah Constitution, and the Utah Code are relevant to this appeal:

United States Const., Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

United States Const., Amendments V, XIV No person shall be . . . deprived of life, liberty, or property, without due process of law . . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Utah Const. Art. I, § 15 Freedom of speech and of the press – Libel. No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

Utah Code Ann. § 76-9-501. "Libel" defined. 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 defame or darken the memory of one who is dead, or 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.

Utah Code Ann. § 76-9-502. Libel – Elements – Classification of offense. (1) 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. (2) Libel is a class B misdemeanor.

Utah Code Ann. § 76-9-503. Presumption of malice – Reading or seeing by another not necessary – Liability of newspaper or serial publication personnel.
(1) An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.
(2) To sustain a charge of publishing a libel, it is not essential that the words or things complained of should have been read or seen by another. It is adequate that the accused knowingly parted with the immediate custody of the libel under circumstances which exposed it to be read or seen by any other person than himself.
(3) Each author, editor, and proprietor of any newspaper or serial publication is chargeable with the publication of any words contained in any part of a book or number or a newspaper or serial.

STATEMENT OF CASE
1. Nature of the Case
This case involves the prosecution of a minor, Ian Michael Lake (“Lake”), for criminal libel based on the contents of an Internet web site he created on his home computer. Lake challenges the constitutionality of Utah’s criminal libel law.

2. Course of Proceedings and Disposition in the Trial Court
On May 18, 2000, Lake was arrested at his home in Milford, Utah, in connection with a criminal investigation by the Beaver County Sheriff’s Office. Lake was subsequently charged in Fifth District Juvenile Court with criminal libel. On August 1, 2000, Lake filed a Motion to Dismiss Petition and a Memorandum in Support of Motion to Dismiss Petition (“Supp. Mem.”) on the ground that Utah’s criminal libel statute is unconstitutional on its face. On September 1, 2000, the Beaver County Attorney’s Office filed a Memorandum in Opposition to Lake’s Motion to Dismiss (“Opp. Mem.”). On September 18, 2000, Lake filed a Reply Memorandum in Support of his Motion to Dismiss. On December 5, 2000, the trial court heard oral argument on the Lake’s Motion to Dismiss Petition. On December 19, 2000, the trial court entered an Order Denying Motion to Dismiss Petition. Following Lake’s request to modify the Order, the trial court entered an Amended Order Denying Motion to Dismiss Petition on January 23, 2001 (“Amended Order”). In the Amended Order, the trial court also certified the denial of the Motion to Dismiss Petition for immediate appeal, finding that the Motion “raises serious and substantial questions about the facial validity of Utah’s criminal libel statute. . . .”

On March 23, 2001, the Utah Court of Appeals issued a Sua Sponte Motion for Summary Disposition on the ground that the Amended Order was not eligible for certification as a final order pursuant to Rule 54(b) of the Utah Rules of Civil Procedure. After briefing by the parties, on May 15, 2001, the Utah Court of Appeals entered an Order stating that although the Amended Order was not appropriate for Rule 54(b) certification, “it is appropriate to consider the matter as an interlocutory appeal” under Rule 5 of the Utah Rules of Appellate Procedure. On June 6, 2001, the Utah Court of Appeals certified this appeal for immediate transfer to the Utah Supreme Court.

STATEMENT OF FACTS
Lake was a student at Milford High School until the end of the 1999-2000 school year. Amended Order, p. 2 [App. at 2]. During that school year, Lake created an Internet web site on his home computer. Id. The web site contained disparaging remarks about school officials and personnel. Id., pp. 2-3 [App. at 2-3]. After receiving complaints about the site, on May 18, 2000 the Beaver County Sheriff’s office arrested Lake. Beaver County Sheriff’s Office Investigation Narrative (“Inv. Narr.”), pp. 1-2 [App. at 11-12]. Lake waived his rights and was interviewed by the Sheriff’s Deputy. Id., p. 2 [App. at 12]. During the course of the interview, Lake admitted that he created the web site in response to similar sites created by fellow students, and that he made the disparaging statements about school officials and personnel because he “hate[d]” the high school principal and “just [didn’t] like” the faculty. Id. After the interview, Lake was transported to Cedar City Youth Corrections. Id. He was held there in custody for seven (7) days. Supp. Mem., p. 5 [App. at 13]. He was subsequently charged with criminal libel in violation of Utah Code Ann. § 76-9-501, et seq. Petition and Notice [App. at 14]. (1)

The State alleges that Lake knew the statements on his web site “were false; that they were statements that impugned the honesty, integrity, virtue and reputation of [the school’s principal, his secretary] and probably other faculty members; that he published the various statements intentionally in order to expose the faculty, including [the principal and his secretary], to public hatred, contempt, or ridicule and that he did it because he hated them and not for any good motive or justifiable end.” See Opp. Mem., p. 8 [App. at 22]. For purposes of his facial challenge to the criminal libel statute, Lake admitted the prosecution’s factual allegations while reserving the right to dispute them at trial. Amended Order, p. 3 [App. at 3].

SUMMARY OF ARGUMENT
A. J. Leibling famously lamented: “Freedom of the press is guaranteed only to those who own one.” (2) If Liebling was right, that fundamental constitutional guarantee is more important now than ever. The advent and remarkable growth of the Internet and the World Wide Web mean that, for the first time in human history, anyone with a computer, a phone line and a bit of technical know-how can share his thoughts and opinions with millions of people across the country and around the world. (3) A “press” of unprecedented, almost unlimited potential reach is therefore increasingly available, not only to a privileged few, but to a growing majority of Americans. To ensure that First Amendment freedoms are guaranteed in this fast-growing medium, however, the law must keep pace. This case presents an opportunity for this Court to review a law drafted in the 19th Century, based on concepts and precedents predating the printing press, in light of the technologies and the legal standards of the 21st Century. See Argument Point I, infra.

In a landmark 1964 case involving freedom of the press, the Supreme Court held that one cannot be liable for publishing statements critical of public officials unless the statements were not only false but also made with “actual malice,” i.e., with knowledge that the statements were false or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Since then, the virtual consensus of courts considering the question is that criminal libel statutes that do not expressly incorporate this “actual malice” standard and that provide anything less than an absolute, unconditional truth defense are unconstitutionally overbroad, and cannot provide the basis for any criminal prosecution. See Argument Point II, infra.

Unfortunately, since at least 1876, Utah’s criminal libel statute has not been changed to reflect these important developments. Instead, on its face, the statute continues to permit prosecutions based on even true statements about public officials if they are made with common-law “malice,” i.e., ill will, hatred or enmity. As such, the statute criminalizes a substantial amount of constitutionally protected speech, and therefore it is facially unconstitutional. See Argument Point III. A., infra.

In the proceedings below, the State conceded that the criminal libel statute does not expressly incorporate the “actual malice” standard. The State argued, however, that the “actual malice” standard could be cobbled together from various other statutory and constitutional provisions and judicially grafted on to the criminal libel statute. The State reasoned that because this Court “had no trouble” applying the actual malice standard in the civil context, “it is likely [this Court] would also have no trouble applying [that standard] to the criminal statute.” See Opp. Mem., p. 5 [App. at 23] The State’s argument is based on the erroneous assumption that this Court has as much latitude to rewrite a criminal statute as it does to interpret a civil statute. To rewrite the criminal libel statute by grafting on the “actual malice” standard would run counter to the requirements of due process of law, as well as to the principle that a court may not exercise legislative functions to save a law from constitutional defects. See Argument Point III. B., infra.

ARGUMENT
I. HISTORY OF CRIMINAL LIBEL STATUTES GENERALLY
A. Criminal Libel Statutes Ostensibly Developed to Prevent “Breaches of the Peace”; They Often Served, However, to Suppress Criticism of Political and Religious Leaders and Other Public Officials.

Criminal libel statutes have ancient roots, long predating the printing press. As one commentator noted: “The origin of criminal libel dates back more than 2,000 years to the Babylonian Code of Hamurabi. Under that code, it was a ‘punishable offense for a man to point a finger at a priestess or the wife of another man unless he could justify it.’” Note, Give the Dead Their Day in Court: Implying a Private Cause of Action for Defamation of the Dead from Criminal Libel Statutes, 9 Fordham Intell. Prop. Media & Ent. L.J. 1083, 1103 (1999).

The justification for punishing libel was its supposed tendency to create breaches of the peace, if the defamed or his family or friends undertook to revenge themselves on the defamer. Given that justification, truth was not a defense. “In fact, if the defamation was true it was thought to sting all the more and have an even greater tendency to incite violence than a falsehood.” Gottschalk v. State, 575 P.2d 289, 291 (Alaska 1978) (discussing the history of criminal libel).

In this country’s early history, obstreperous colonials bristled at the use of the criminal law to punish political dissent. When New York publisher John Peter Zenger was charged with criminal libel based on articles critical of the British Crown and its appointed governor, the jury ignored the judge’s instruction that truth is irrelevant and acquitted Zenger. See Comment, Jury Nullification Should Be Made a Routine Part of the Criminal Justice System, but It Won’t Be, 29 Ariz. St. L.J. 1127, 1130 (1997).

Notwithstanding the clear and straightforward protections of freedom of speech and the press enshrined in the First Amendment in 1791, the temptation to use the criminal law to punish speech critical of public officials persisted, and from time to time manifested itself in federal and state laws.

In 1798, the Sedition Act outlawed defamation against the United States government. Act of July 14, 1798, ch. 74 § 3, 1 Stat. 596 (1798). Thomas Jefferson and James Madison immediately and roundly condemned the Act as unconstitutional, and the Virginia legislature passed the famous Virginia Resolutions of 1798 saying that the Act exercised “a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto – a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” See New York Times Co. v. Sullivan, 376 U.S. at 274. Nevertheless, as one influential scholar has documented, “prosecutions of persons who, feeling aggrieved, made disagreeable statements about persons firmly entrenched in public office or power” continued well into the last century. See Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Texas L. Rev. 984, 985-86 (1956). (4)

In 1964, the United States Supreme Court “abolished the strict liability standard for libel, slander and defamation against public officials theretofore prevailing at common law and established a constitutional standard of first amendment protection which could be overcome only by a showing of an intentional falsehood or reckless disregard for the truth.” See Van Dyke v. KUTV, 663 P.2d 52, 53 (Utah 1983) (discussing New York Times v. Sullivan, supra, and other federal cases establishing and elaborating on the constitutional standards). The Court based its decision on what it called “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times v. Sullivan, 376 U.S. at 270. The Court noted:

“The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’ As Madison said, ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.”"

Id. at 271 (citations omitted). (5)

Thus, while protection of vigorous (even crude and acerbic) criticism of public officials has not always been a hallmark of our laws, it is now firmly established in First Amendment jurisprudence as vital to the functioning of our public institutions. See, e.g., Hustler v. Falwell, 485 U.S. 46 (1988) (dismissing claim arising out of crude, parodic attack on a public figure as a hypocrite). As this Court has aptly stated: “Freedom of speech is not only essential for the psychological, moral, intellectual, and political well-being of individuals, but it is also ‘the essence of self-government.’” Cox v. Hatch, 761 P.2d 556, 558 (Utah 1988), quoting Garrison v. Louisiana, 379 U.S. 64 (1964).

II. LIMITATIONS ON CRIMINAL LIBEL STATUTES BASED ON APPLICATION OF MODERN CONSTITUTIONAL PRINCIPLES

A. The Federal Constitution Requires that Criminal Libel Statutes Expressly Include “Actual Malice” as an Element of the Crime.

In New York Times Co. v. Sullivan, the United States Supreme Court unequivocally rejected the common-law notion that statements about public officials made with hatred, enmity or ill will can give rise to a claim of libel. That case arose in the highly emotional context of the “efforts of many people, including even some public officials, to continue state-commanded segregation of races in the public schools and other public places. . . .” Id. at 294 (Black, J., concurring). The Court ruled that the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80. (6)

Eight months after New York Times v. Sullivan, the U.S. Supreme Court held that “the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials”:

“Applying the principles of the New York Times case, we hold that the Louisiana statute, as definitively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials. For, contrary to the New York Times rule, which absolutely prohibits punishment of truthful criticism, the statute directs punishment for true statements made with ‘actual malice.’ And ‘actual malice’ is defined in the decisions below to mean ‘hatred, ill will or enmity or a wanton desire to injure. . . .’ The statute is also unconstitutional as interpreted to cover false statements against public officials. The New York Times standard forbids the punishment of false statements, unless made with knowledge of their falsity or in reckless disregard of whether the statements are true or false. But the Louisiana statute punishes false statements without regard to that test if made with ill-will; even if ill-will is not established, a false statement concerning public officials can be punished if not made in the reasonable belief of its truth.”

Garrison v. Louisiana, 379 U.S. 64, 67, 77-78 (1964).

After reviewing the history of criminal libel – and noting that “except as a weapon against seditious libel, the criminal prosecution [of libel at common law] fell into virtual desuetude” – the Court stated:

“Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that ‘. . . under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of the peace requires a criminal prosecution for private defamation.’”

Id. at 69 (citation omitted).

The Court also considered “whether the historical limitation of the defense of truth in criminal libel to utterances published ‘with good motives and for justifiable ends’ . . . permits negating the truth defense, as the Louisiana statute does, on a showing of malice in the sense of ill-will.” Id. at 70-71. (7) The Court observed:

“Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, ‘it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and the incompetent will be shielded.’”

Id. at 73 (citation omitted).

The Court concluded that the reasons underlying the result in New York Times “apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy. Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.” Id. at 74. Because the Louisiana statute did not incorporate the constitutionally required element of “actual malice,” but allowed punishment for true statements made with common-law malice, or ill will, it was unconstitutional. Id. at 77-78. (8)

The only U.S. Supreme Court case since Garrison involving a criminal libel prosecution was Ashton v. Kentucky, 384 U.S. 195 (1966). There the Court reviewed the Kentucky criminal defamation law, which derived from the common law. The Court noted that the English common law of libel is inconsistent with the constitutional standards articulated in Sullivan and Garrison. Id. at 198. The Court concluded:

“We agree with the dissenters in the Court of appeals who stated that: ‘. . . since the English common law of criminal libel is inconsistent with the constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky.’”

Id.

B. Lower Courts Applying the Federal Constitutional Requirements Have Concluded that Criminal Libel Statutes that Fail Expressly to Include “Actual Malice” as an Element of the Crime Are Unconstitutionally Overbroad and/or Vague.

In the wake of these U.S. Supreme Court cases, virtually every court that has addressed the constitutionality of a state’s criminal libel statute has concluded that if the statute fails expressly to incorporate an actual malice requirement, it is facially unconstitutional. (9) That conclusion is driven by a straightforward application of the “overbreadth” doctrine. According to that doctrine, a statute is unconstitutionally overbroad if it “reaches a substantial amount of constitutionally protected conduct.” See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). In the criminal context, the “overbreadth” doctrine takes on added importance. “Criminal statutes must be scrutinized with particular care . . . ; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Houston v. Hill, 482 U.S. 451, 459 (1987). (10)

The courts’ reasoning is simple. As the Alabama Supreme Court recently concluded:

“[T]he United States Supreme Court has held that criminal-defamation statutes such as ours must require a showing of ‘actual malice,’ as defined in New York Times. Alabama’s criminal defamation statute requires no such showing, and this Court, without overstepping its constitutional limitations, cannot construe the statute as if ‘actual malice’ were a requirement.”

Ivey v. State, 2001 WL 755666, at *11.

Based on this clear and overwhelming weight of authority, this Court should similarly strike Utah’s criminal libel statute as facially unconstitutional and reverse the trial court’s denial of Lake’s Motion to Dismiss Petition.

III. ANALYSIS OF UTAH’S CRIMINAL LIBEL STATUTE IN LIGHT OF MODERN CONSTITUTIONAL PRINCIPLES

a. Utah’s Criminal Libel Statute Does Not Expressly Incorporate the Necessary Constitutional Requirements; It Is Therefore Facially Overbroad and Cannot Be Enforced.

Utah’s criminal libel statute, in its current form, is set forth in Utah Code Ann. §§ 76-9-501 through 503. Section 502(1) provides: “A person is guilty of criminal libel if he intentionally and with a malicious intent to injure another publishes or procures to be published any libel.” Utah Code Ann. § 76-9-502(1) (2000). “Libel” is defined by Section 501 as follows:

“‘Libel’ means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to defame or darken the memory of one who is dead, or 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.” Utah Code Ann. § 76-9-501 (2000).

The State has conceded that “[t]he definition of actual malice as found in the federal cases is not included in . . . the Criminal Libel definition.” Opp. Mem., p. 5 [App. at 19]. Indeed, no explicit definition of “malicious” appears anywhere in the criminal libel statute. The threshold question, then, is whether the term “is readily subject to a narrowing construction” consistent with the New York Times standard. See Erznoznick v. City of Jacksonville, 422 U.S. 205, 216 (1975) (“a state statute should not be deemed facially unconstitutional unless it is not readily subject to a narrowing construction”).

An established canon of statutory construction allows undefined terms to be given a meaning that was in existence, accepted and recognized at the time the statute in question was adopted. See Gilbert v. United States, 370 U.S. 650, 654 (1962) (meaning of “forgery” under 18 U.S.C. § 495 must be determined by reference to “the common-law meaning of forgery at the time the 1823 statute was enacted”). In this case, however, it is impossible to conclude that the Legislature could have intended the term “malicious” to mean “actual malice.” The use of that term in the criminal libel statute predates the U.S. Supreme Court’s articulation of the “actual malice” standard by nearly 100 years, and has remained undefined, and unchanged, even in the wake of New York Times and Garrison. (11) Under such circumstances, the above canon of construction requires that common-law meaning of “malicious” extant at the time the statute was enacted – ill will, hatred or enmity – be attributed to the term. (12)

Another accepted canon of statutory construction requires this Court to view the criminal libel law as a whole and to give meaning to each of its various parts. See State v. Vigil, 842 P.2d 843, 845 (1992) (statutory provisions should be construed to give full effect to all their terms). Again, however, applying that canon here merely underscores the conclusion that the criminal libel law, on its face, punishes statements made with common-law malice, or ill will, not “actual malice.”

Section 503 of the statute provides in part: “An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” Utah Code Ann. § 76-9-503(1) (2000) (emphasis added). If “malicious” meant “with actual malice,” this statutory presumption would make no sense. While it might make sense to instruct a jury that it can presume a defendant acted with ill will, hatred or enmity if he cannot establish a “justifiable motive” for his statements, it makes no sense – and in fact would be unconstitutional – to instruct a jury that it can presume a defendant knew his statements were false or acted with reckless disregard for their truth or falsity merely because he cannot show a “justifiable motive” for making them. See Eberle v. Municipal Court of Los Angeles District, 127 Cal. Rptr. at 600 (court analyzed a statute virtually identical to Utah’s and concluded that under Garrison “the presumption of ‘malice’ contained therein constitutes one of the elements of the crime and is not constitutionally permissible”). As this Court has recognized, a construction that would render a statute unreasonably confused or inoperable must be rejected. See State v. Bohne, 2001 UT App. 11, ¶ 7, 18 P.3d 514 (Utah 2001) ("a statutory term should be interpreted and applied according to its usually accepted meaning, where the ordinary meaning of the term results in an application that is neither unreasonably confused, inoperable, nor in blatant contradiction of the express purpose of the statute”).

Similarly, Article I, Section 15 of the Utah Constitution provides in part: “In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.” Utah Const. Art. I, § 15 (emphasis added). The clear effect of this provision is that, even if a defendant can show that his statements are true, he must still show that they were “published with good motives, and for justifiable ends,” to be acquitted. Coupled with the statutory presumption, this provision makes clear that Utah’s criminal libel law allows punishment for statements, whether true or not, made with common law malice – ill will, hatred or enmity.

In short, the only conclusion this Court can reach is that the term “malicious” as used in Utah’s criminal libel statute means common law malice, or ill will, and is not “readily subject to a narrowing construction” consistent with the New York Times “actual malice” standard. Moreover, because the statute, on its face, criminalizes even true statements made with ill will, it suffers from the same constitutional defects as the Louisiana statute in Garrison and the other statutes declared unconstitutional since then. The only remaining question is whether this Court can and should rewrite the statute to make it constitutional.

b. This Court Cannot Properly Rewrite Utah’s Criminal Libel Statute to Include the Requisite “Actual Malice” Standard.

In the proceedings below, the State argued (and the trial court agreed) that even though the term “malicious” is not explicitly defined; even though the Legislature has never amended the statute to expressly incorporate the “actual malice” requirement; and even though the only way the plain language of the various statutory and constitutional provisions can be read is to define the term “malicious” to mean “ill will, hatred or enmity; this Court can and should define the term to mean “actual malice” as defined in New York Times, or should allow criminal prosecutions so long as the trier of fact understands that a conviction can only be secured upon a finding of “actual malice.” (13) With all due respect to the State and the esteemed trial court, that conclusion subverts not only established canons of statutory construction, but also fundamental constitutional protections guaranteeing the rights of criminal defendants and delineating the functions of the various branches of government.

The State’s argument (and the trial court’s ruling) is based on this Court’s adoption of the New York Times v. Sullivan “actual malice” standard for civil suits brought by public figure plaintiffs against media defendants. See Van Dyke v. KUTV, supra; Cox v. Hatch, supra; West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994). The State reasons that because this Court “had no trouble” imposing the “actual malice” standard in those civil cases, it should also “have no trouble applying the Federal actual malice definition to the criminal statute.” Opp. Mem., p. 5. [App. at 19]. To support the rather remarkable proposition that a criminal court can act in the same way civil courts do when developing the common law or interpreting civil statutes, the State relies on Utah Code Ann. § 76-1-106 (rule requiring strict construction of penal statutes not applicable in Utah) and State v. Ledkins, 5 Utah 2d 422, 303 P.2d 1099 (1956). The State’s argument is wrong, and the trial court erred in accepting it.

While the rule requiring strict construction of penal statutes is not applicable in Utah, the following cardinal rule is applicable: Criminal statutes must be construed so as to “[d]efine adequately the conduct and mental state which constitute each offense and safeguard conduct that is without fault from condemnation as criminal.” Utah Code Ann. § 76-1-104. Moreover, the very provision on which the State relies also requires that criminal statutes “shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law and the general purposes of Section 76-1-104.” Id. § 76-1-106.

The State’s suggestion that the courts are free to graft the “actual malice” standard on to the criminal libel statute, either through an interpretation of the term “malicious” that is contrary to the plain language of the statutory and constitutional provisions, or through an ad hoc construction by the trier of fact, flies in the face of these canons of construction, and the important constitutional requirement of due process they reflect. This Court has fully and rightly endorsed the principle, which underlies the “vagueness” doctrine discussed above, that criminal defendants are entitled to advance notice of the precise contours of proscribed conduct. See Greenwood v. City of North Salt Lake, 817 P.2d 816 (Utah 1991); State v. Kennedy, 616 P.2d 594 (Utah 1980); Logan City v. Carlsen, 585 P.2d 449 (Utah), cert. denied, 439 U.S. 1131 (1978); see also State v. Pharris, 846 P.2d 454 (Utah Ct. App.), cert. denied, 857 P.2d 948 (Utah 1993). Here, as in Ashton, the requirements of due process preclude an ad hoc definition of “malicious,” through construction or through jury instruction, that is not clearly set forth in the law itself.

The State’s suggestion that this Court rewrite the statute is also contrary to the principle of separation of powers, which makes clear that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from a constitutional defect. That is why, as the New Mexico Supreme Court observed, “when other jurisdictions have confronted the question of what to do about a criminal libel statute that does not require proof of actual malice, none has inserted an actual malice requirement into the statute.” State v. Powell, 114 N.M. 395, 839 P.2d 139, 147 (N.M. Ct. App. 1992) (emphasis added). (14) As the Alaska Supreme Court concluded in Gottschalk:

“We recognize the rule of construction that where it is reasonably possible to do so, statutes should be construed in a manner consistent with constitutional requirements. Here, however, . . . we are not able to save the statute in question because in doing so we would be stepping over the line of interpretation and engaging in legislation.”

Gottschalk, 575 P.2d at 296. (15) See also Ivey v. State, 2001 WL 755666 at *10 (to add the element of “actual malice” would “constitute judicial legislation and would thus violate the separation-of-powers doctrine”); Weston v. State, 528 S.W.2d at 415-16 (declining suggestion that statute’s facial defect be cured on remand and retrial through appropriate judicial construction or jury instruction); Eberle v. Municipal Court, 55 Cal. App. 3d at 433 (“any attempt at draftsmanship on our part would transgress both the legislative intent and the judicial function” in “flagrant breach of the doctrine of separation of powers”); Commonwealth v. Armao, 286 A.2d at 632 (to accede to the Commonwealth’s request “to in effect re-draft the criminal libel statutes in accordance with First Amendment requirements” would be “to undertake a wholly inappropriate judicial activity amounting to judicial legislation”).

Of course, statutes are presumed to be constitutional, and if possible they should be construed so as to sustain their constitutionality. See State v. Lopes, 980 P.2d 191, 195 (Utah 1999); Celebrity Club, Inc. v. Utah Liquor Control Comm’n, 657 P.2d 1293, 1299 (Utah 1982). But this Court has recognized that courts are neither required nor permitted to rewrite statutes to reflect a more limited effect than the plain language dictates; that is a task for the legislature. See State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998) (“’the court has no power to rewrite the statute to conform to an intention not expressed’”), quoting Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994); see also State v. Winkle, 528 P.2d 467, 468 (Utah 1974) (“this court cannot rewrite [a statute to make it constitutional] without invading the province of the legislature”).

While striking a statute as unconstitutionally overbroad is, “manifestly, strong medicine” (see Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)), the alternative is even more unpalatable. It requires that the courts abandon their role of protecting all persons’ constitutional rights and arrogate the role of a super-legislature with the extraordinary power to amend criminal statutes and apply them retroactively whenever the conduct is alleged to be serious enough or the likely sentence is perceived to be light enough. (16) Appellant respectfully requests that this Court review the statute as drafted, and leave to the Legislature the decision of whether to retain the relic of criminal libel in any form or consign it to the dustbin of history.

CONCLUSION
For all of the foregoing reasons, Lake respectfully request that this Court strike Utah’s criminal libel statute, Utah Code Ann. §§ 76-9-501 through 503, as facially unconstitutional, and reverse the Order of the trial court denying Defendant’s Motion to Dismiss Petition.

RESPECTFULLY SUBMITTED this 2 day of August 2001.

STEPHEN C. CLARK
RICHARD A. VAN WAGONER
Attorneys for Appellant

FOOTNOTES
1. Lake was also charged with criminal slander under Utah Code Ann. § 76-9-507, but that charge was dismissed in pretrial proceedings. See Order and Decree [App. at 16].

2. The Harper Book of Quotations 321 (Robert I. Fitzhenry, ed., 3d ed. 1993).

3. In 1979, fewer than 300 computers stored information available over the Internet, and many fewer than that stored information available to the general public. By 1996, more than 9,400,000 computers stored information generally available to the public. Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997). Since then the Internet has grown at an even greater rate. See American Civil Liberties Union v. Johnson, 194 F.3d 1149, 1153 (10th Cir. 1999) (estimating the Internet connects 159 countries and more than 109 million users).

4. After reviewing the facts of 110 reported criminal defamation cases between 1920 and 1955, Leflar concluded that prosecutions were pursued primarily for the personal satisfaction of those with close ties to law enforcement who regarded themselves or their associates as having been defamed. In short: “Modern criminal defamation prosecutions appear on analysis to serve pretty much the same function as the early prosecutions for libel of ‘great men.’” Leflar, supra, 34 Texas L. Rev. at 1032.

5. Had Madison been writing in the 21st Century rather than the 18th, he undoubtedly would have extended his observation to the Internet. Indeed, the United States Supreme Court has made clear that the highest degree of First Amendment protection extends to that medium. See Reno v. ACLU, 521 U.S. at 870 (while some media might present special justifications for greater regulation, there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to this [Internet] medium”).

6. Later U.S. Supreme Court cases elaborated on the definition of “public official” (see, e.g., Rosenblatt v. Baer, 383 U.S. 75 (1966) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1975)), and extended the New York Times rule to “public figures.” See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). This Court has stated that “problems affecting our schools are matters in which the public has a legitimate interest and would be within the [actual malice] rule set forth above.” Ogden Bus Lines v. KSL, Inc., 551 P.2d 222, 224 (Utah 1976). Several other courts have similarly ruled that public school officials are “public officials” and/or “public figures.” See, e.g., Johnson v. Robbinsdale Ind. Sch. Dist., 827 F. Supp. 1439, 1442-43 (D. Minn. 1993) (given importance of public education as a governmental function, elementary school principal is a public official); Palmer v. Bennington Sch. Dist., 615 A.2d 498- 501-02 (Vt. 1992) (same); Kapiloff v. Dunn, 343 A.2d 251, 258 (Md. App. 1975) (high school principal is a public official), cert. denied, 426 U.S. 907 (1976); State v. Defley, 395 So. 2d 759, 761 (La.1981) (school supervisor is a public official); Reaves v. Foster, 200 So. 2d 453, 456 (Miss.1967) (high school principal is a public official).

7. The Court noted that Utah is among the jurisdictions that similarly “have constitutional or statutory provisions which make truth a defense if published with good motives and for justifiable ends. . . .” 379 U.S. at 70 n.7.

8. In a typically spirited separate opinion, Justice Black stated: “I believe that the First Amendment . . . protects every person from having a State or the Federal Government fine, imprison or assess damages against him when he has been guilty of no conduct . . . other than expressing an opinion, even though others may believe that his views are unwholesome, unpatriotic, stupid or dangerous. I believe that the Court is mistaken if it thinks that requiring proof that statements were ‘malicious’ or ‘defamatory’ will really create any substantial hurdle to block public officials from punishing those who criticize the way they conduct their office. Indeed, ‘malicious,’ ‘seditious,’ and other such evil-sounding words often have been invoked to punish people for expressing their views on public affairs. Fining men or sending them to jail for criticizing public officials not only jeopardizes the free, open public discussion which our Constitution guarantees, but can wholly stifle it.” Garrison, 379 U.S. at 79-80 (Black, J., concurring) (citations omitted).

9. See Ivey v. State, --- So. 2d ---, 2001 WL 755666 (Ala. 2001) (attached [App. at 28]) (Alabama statute facially unconstitutional because it does not require a showing of “actual malice” as defined in New York Times); Gottschalk v. State, 575 P.2d 289 (Alaska 1978) (Alaska statute facially unconstitutional because it requires “the accused must show not only that what he said was true, but that his intentions were good when he said it”); Weston v. State, 528 S.W.2d 412 (Ark. 1975) (Arkansas criminal libel statute facially unconstitutional because it failed to prohibit punishment for truthful criticism and for false statements regarding public officials unless made with actual malice); Eberle v. Municipal Court of Los Angeles District, 55 Cal. App. 3d 423, 127 Cal. Rptr. 594 (Cal. App. 1976) (California criminal defamation statutes facially unconstitutional because they lacked the appropriate definition of actual malice and included an unconstitutional presumption of malice if no justifiable motive is shown for the making of the injurious publication); Montana v. Helfrich, 922 P. 2d 1159, 1162 (Mon. 1996) (Montana’s criminal libel statute facially unconstitutional because it did not expressly provide for truth as an absolute defense); Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (Pa. 1970) (Pennsylvania criminal libel statute facially unconstitutional because it did not provide for truth as an absolute defense and there was no recognition of the “actual malice” requirement); Fitts v. Kolb, 779 F. Supp. 1502 (D.S.C. 1991) (South Carolina criminal libel statute facially unconstitutional because term "malicious intent" did not allow for an interpretation consistent with “actual malice”).

10. A related doctrine, and an alternative holding in some of the above cases, is that a statute that fails expressly to incorporate the New York Times “actual malice” standard is unconstitutionally vague. According to the “vagueness” doctrine, the Constitution requires that criminal statutes be drafted with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). “Where a statute’s literal scope . . . is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974). That is because “where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were closely marked.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (citations and internal quotation marks omitted). As the Alaska Supreme Court observed, a “pattern of selective enforcement is both the hallmark and the vice of a vague criminal statute. Because one must guess at what is forbidden, a vague statute’s ‘standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections,’ . . . and thereby ‘encourages arbitrary and erratic arrests and convictions.’” Gottschalk, 575 P.2d at 295. That concern is not hypothetical, but very real. Research revealed only two reported cases involving prosecutions for criminal libel in Utah – both more than 100 years old. See People v. Glassman, 12 Utah 238, 42 P. 956 (1895); People v. Ritchie, 12 Utah 180, 42 P.209 (1895). In this case, the sheriff’s deputy was fully aware of similar, allegedly defamatory publications by Lake’s fellow students, and he undertook to continue the investigation into “criminal activity related to these sites.” See Inv. Narr., p. 2 [App. at 11]. As far as counsel is aware, however, no other prosecutions were brought. The prosecutor stated his goal was to use this prosecution to teach Lake a lesson, in loco parentis, and to extract an apology. See Transcript of December 5, 2000 Hearing, p. 17 [App. at 27] (“As a parent of nine children myself, I know that when a child does something wrong, he needs to apologize for it.”). Whether the conduct of the sheriff’s deputy and the prosecutor in this case is appropriate or not, it underscores the rarity, and the selectivity, of prosecutions for an offense that undoubtedly “is committed many times each day” in this state. See Gottschalk, 575 P.2d at 294.

11. The 1876 Compiled Laws of the Territory of Utah punished criminal libel against “[e]very person who willfully, and with a malicious intent to injure another, publishes or procures to be published any libel.” Comp. Laws Utah § 1955 (1876). Libel was defined as “a malicious defamation, expressed either by printing or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.” Comp. Laws Utah § 1954 (1876). The crime of libel remained virtually unchanged from the time of its enactment until well into the 20th century. See Rev. Stat. Utah §§ 4196 - 4205 (1898); Comp. Laws Utah §§ 4196 - 4205 (1907); Comp. Laws Utah §§ 8072 - 8081 (1917); Rev. Stat. Utah §§ 103-38-1 - 103-38-8 (1933); Utah Code Ann. §§ 103-38-1 - 103-38-8 (1943); Utah Code Ann. §§ 76-40-1 - 76-40-8 (1953). The single substantive change during that time period occurred in 1933, when the statutory provision regarding truth as evidence for the defense – nearly identical to the language of the Utah Constitution – was removed. See Rev. Stat. Utah §§ 103-38-1 - 103-38-8 (1933). When Utah’s criminal code was re-codified in 1973, the Legislature made two minor changes to the criminal libel statute: the penalty for criminal libel was changed to a class A misdemeanor, and the defining phrase “tending to blacken the memory of one who is dead” was changed to “tending to defame or darken the memory of one who is dead.”[1] 1973 Utah Laws ch. 196 part 5. In 1991, the penalty for criminal libel was changed from a class A misdemeanor to a class B misdemeanor. See 1991 Utah Laws ch. 241 § 100. Other than these few minor changes, Utah’s Legislature has not changed or updated the criminal libel statute since 1876.

12. At the very least, the continuous use of the term “malicious” in the criminal libel statute, without any express incorporation of the New York Times standard, creates an unconstitutional ambiguity as to whether the Legislature intended to incorporate the New York Times standard. See Fitts v. Kolb, 779 F. Supp. at 1516.

13. See Pretrial Conference Minutes dated December 5, 2000: “After reviewing the briefs and hearing the arguments, the Court’s view is that while there is some merit for the position that the statute is unconstitutional, on the other hand, the scheme of statutory construction as outlined by Mr. Kanell affords the trier of fact the opportunity to find malice and the Appellate Court to sustain the finding that the elements necessary for notice on which Mr. Van Wagoner based his motion exist.” [App. at 24].

14. The court continued: “The debate has been whether to strike the statute in its entirety . . . or whether to hold only that the statute is unconstitutional as applied to defamation that cannot constitutionally be punished without proof of actual malice. . . .” 839 P. 2d at 147. Only the New Mexico court (without explanation or analysis) and the Colorado Supreme Court (in People v. Ryan, 806 P.2d 935 (Colo. 1991)) have followed the latter course. In both cases the courts were construing statutes very different from Utah’s. No state court reviewing a criminal libel scheme similar to Utah’s has taken that distinctly minority approach. Since Powell, one federal court has inserted an actual malice requirement into a criminal libel statute, but again that statute was very different from Utah’s, and was adopted after New York Times and Garrison. See Phelps v. Hamilton, 59 F.3d 1058, 1071 (10th Cir. 1995) (reasoning that Kansas legislators, who passed the law after the U.S. Supreme Court decisions in Sullivan and Garrison, must have intended to incorporate the actual malice standard).

15. The court noted: “If we were to engage in the process of narrowing suggested by the State, after striking [the plainly unconstitutional provision, which has a perfect analog in the Utah criminal libel provisions, making truth a defense only if the statements were made “with good motives and for justifiable ends”] we would then have to decide whether [the criminal libel statute] should be limited only to cases of private defamation or should apply to defamation of public officials, public figures or concerning public issues; whether truth should be an absolute or a conditional defense to private defamation; and whether a private false defamation which is neither knowingly nor recklessly false should be criminal. The variety of these choices underscores the essentially legislative nature of the task of bringing our defamation statutes within constitutional bounds.” Gottschalk, 575 P.2d at 296 n.18.

16. The prosecution argued, apparently with success, that these kinds of case-by-case considerations are appropriate. See Opp. Mem., p. 9 [App. at 23] (“This statute is only a class B misdemeanor so does not create a great deal of risk of serious criminal sanctions and is the proper way to deal with the minor’s unlawful conduct.”).