It should be noted that there can be regional statutes as well that may differ from the national norm. For example, in the United States as a general rule of thumb defamation is limited to the living. However, there are five states (Colorado, Idaho, Georgia, Louisiana, and Nevada) that have criminal statues regarding defamation of the dead[20]
- ^ Colorado Revised Statute Section 18-13-105, Idaho Code § 18-4801, Georgia Code - Crimes and Offenses - Title 16, Section 16-11-40, Louisiana Revised Statute § 14:47, and Nevada Revised Statutes § 200.510.
Colorado
“(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.
(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.
(3) Criminal libel is a class 6 felony.”
Colo. Rev. Stat. § 18-13-105 (2005)
Truth is an absolute defense to a libel action. A defendant is not required to prove the truth of the entire statement, only the truth in the substance of the statement. Gomba v. McLaughlin, 504 P.2d 337 (Colo. 1972).
People v. Ryan, 806 P.2d 935 (Colo., 1991), upheld the Colorado statute to the extent that it criminalized statements made by one private individual about another private individual. The court also held that “actual malice” need not be proved in cases between two private individuals.
Georgia
“(a) A person commits the offense of criminal defamation when, without a privilege to do so and with intent to defame another, living or dead, he communicates false matter which tends to blacken the memory of one who is dead or which exposes one who is alive to hatred, contempt, or ridicule, and which tends to provoke a breach of the peace.
(b) A person who violates subsection (a) of this Code section is guilty of a misdemeanor.”
Ga. Code Ann. § 16-11-40 (2005).
Porter v. Kimzey, 309 F.Supp. 993 (N.D. Ga. 1970), aff’d 401 U.S. 985, held that the criminal-libel statute does not violate the First Amendment so long as the provisions in the statute are precise and objective. However, Williamson v. State, 249 Ga. 851 (1982), held that the statute was partially unconstitutional because the language “tends to provoke a breach of peace” is vague and overbroad. Yet in light of the decision, the statute has not been revised and remains on the books.
Idaho
Libeling either the living or the dead is a crime. Idaho Code § 18-4801 (2005).
“Every person who willfully, and with a malicious intent to injure another, publishes, or procures to be published, any libel, is punishable by fine not exceeding $5,000, or imprisonment in the county jail not exceeding six (6) months.” Id. at 18-4802.
Truth is a defense, which is to be determined by the jury. Id. at 18-4803.
“An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” Id. at 18-4804.
It is not necessary that anyone actually have read or seen the libel. Id. at 18-4805. Each author, editor and proprietor of libelous material is liable. Id. at 18-4806.
“True and fair” reports of public proceedings are not libelous, except upon a showing of malice. Id. at 18-4807.
Libelous remarks or comments in relation to “true and fair” reports receive no protection. Id. at 18-4808.
It is a misdemeanor to either threaten to libel a person or their family member or solicit money in return for preventing a libel. Id. at 18-4809.
Louisiana
“Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:
(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or
(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or
(3) To injure any person, corporation, or association of persons in his or their business or occupation.
Whoever commits the crime of defamation shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.”
La. Rev. Stat. § 14:47 (2005)
Garrison v. Louisiana, 379 U.S. 64 (1964), holds that the Louisiana statute is unconstitutional so far as it punishes true statements about public officials that are uttered with malicious purpose. Additionally, the statute is unconstitutional in respect to its failure to differentiate whether false statements against public officials were made with malice, reckless disregard of truth or falsity, or in a reasonable belief of the truth of the statement. However, Louisiana’s statute is not unconstitutional per se as long as any actual prosecutions under it follow the constraints laid out in Garrison. Snyder v. Ware, 314 F. Supp. 335 (W.D. La. 1970), aff’d 397 U.S. 589. The Louisiana statute still remains on the books.
Nevada
Nevada makes it a “gross misdemeanor” to libel the living through publication of material that would expose them to ridicule, or to “blacken the memory of the dead.” Nev. Rev. Stat. § 200.510. Similarly, it is a misdemeanor to furnish libelous information to a newspaper or other publication. Id. at 200.550. There is no "intent" requirement, but there is a defense if the information was true and published “for good motive and justifiable ends.” Id. at 200.510
“Any method by which matter charged as libelous may be communicated to another shall be deemed a publication thereof.” Id. at 200.520.
Editors and proprietors of published material may be held liable, but an editor or proprietor may escape guilt by proving “that the matter complained of was published without his knowledge or fault and against his wishes by another who had no authority from him to make such publication, and was retracted by him as soon as known with an equal degree of publicity.” Id. at 200.530.
Nevada law makes it a “gross misdemeanor” either to threaten to libel somebody, or to solicit personal gain in return for not libeling somebody. Id. at 200.560.
Note: In an unpublished order, federal Judge Johnnie Rawlinson approved an agreement between the Nevada Press Association and the Nevada Attorney General that the statutes would not be enforced because they were unconstitutional. In Nevada Press Association v. del Papa, CV-S-98-00991-JBR (1998), the final judgment stated that the statutes were unconstitutional because they were overbroad and punished individuals for the publication of truthful statements.
Last system update: Tuesday, February 15, 2011 | 09:07:58
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