Portal de Periódicos da CAPES

Rethinking Criminal Libel: An Empirical Study

2009; Taylor & Francis; Volume: 14; Issue: 3 Linguagem: Inglês

10.1080/10811680903000989

1532-6926

David Pritchard,

Digital and Cyber Forensics

Abstract The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues. Professor, Department of Journalism and Mass Communication, University of Wisconsin-Milwaukee. The author thanks Andrew Pease for research assistance and the Greater Milwaukee Foundation's Journal Foundation/Walter Jay and Clara Charlotte Damm Fund for financial support. Notes 1This article uses the term "criminal libel," though some statutes and scholars use the term "criminal defamation." The two terms are considered synonymous for purposes of this article. 2The term "black sheep" refers to "the least reputable member of a group; a disgrace." Christine Ammer, The American Heritage Dictionary of Idioms 64 (1997). 3 See, e.g., Randy Bobbitt, Exploring Communication Law: A Socratic Approach (2008); Robert Trager, Joseph Russomanno & Susan Dente Ross, The Law of Journalism & Mass Communication (2007). 4Wendy Tannenbaum, Critics Question Constitutionality of Criminal Libel Laws, 27 News Media & the L. 37, 38 (Winter 2003) ("the use of an ancient law to punish mere insults"). 5Bonnie Bressers, The Dangers of Criminalizing Speech, 91 Quill, Mar. 2003, at 8 (Criminal defamation statutes are "often clearly archaic."); Criminal Libel Developments: 2007 Update, Media L. Resource Center Bull., Dec. 2007 at 123 ("These statutes are a mix of archaic laws and others that have been revised to require actual malice."); Editorial, Nasty? Yes. Criminal? No., L.A. TimesDec. 11, 2008, at A24 ("Archaic laws in several states also allow libel to be prosecuted as a criminal offense."). 6Jane Kirtley, Overkill in Kansas, 24 Am. Journalism Rev. 74, 74 (Sept. 2002) ("Criminal libel is an antiquated legal concept."). 7Wayne Overbeck, Major Principles of Media Law 160 (2001) ("The reason we can touch criminal libel so lightly in a text such as this is that it has become an obsolete legal action."). 8Tannenbaum, supra note 4, at 38 ("Media advocates and legal experts have criticized laws that punish people for speech, calling the statutes outdated and undemocratic."). 9 Id. 10 See, e.g., Kent R. Middleton & William E. Lee, The Law of Public Communication 97 (7th ed. 2009) ("There might not have been a successful prosecution in the last thirty-five years."); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 3.2, 3-4 n.11 (3d ed. 2008) ("Criminal libel lives on in American law, but barely."); Paul Siegel, Communication Law in America 98 (2d ed. 2008) ("Seventeen states still have criminal libel laws on the books, though they are rarely used."); Thomas L. Tedford & Dale A. Herbeck, Freedom of Speech in the United States 81 (5th ed. 2005) ("Not all states have criminal libel laws, and nowadays those that do rarely invoke them."); Salil K. Mehra, Post a Message and Go to Jail: Criminalizing Internet Libel in Japan and the United States, 78 U. Colo. L. Rev. 767, 768 (2007) (Criminal libel is "a dead-letter office in the law in the United States."); Clive Walker, International and Comparative Perspectives on Defamation, Free Speech, and Privacy: Reforming the Crime of Libel, 50 N.Y.L. Sch. L. Rev. 169, 195 (2005) ("Criminal libel has been largely, but not completely, curtailed in the United States."). 11 See, e.g., Don R. Pember & Clay Calvert, Mass Media Law 234 (2009/2010 ed.) ("Most criminal libel prosecutions are generated for political reasons."); Dan Dischof, A Renaissance in Speech Crime Prosecutions, News Media & the L., Spring 2001, at 14 ("Many times, the targets of prosecutors' charges are their political opponents."). 12 See, e.g., Gregory J. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. L. & Pol'y 433, 487 (2004) ("The Supreme Court must act. Until it does, criminal libel will continue to hang on the face of the First Amendment as spittle does from the mouth of a baby, who is not mature enough intellectually to know any better or mature enough physically to wipe it off."); Editorial, Editor & Publisher, Dec. 9, 2002, at 10 ("Criminal-libel statutes no longer protect offended honor—they dishonor our nation's bedrock principles of free speech and free press."); Stacey Laskin, Absence of Malice? Criminal Libel Statutes Still Threaten Free Speech, News Media & the L., Spring 2008, at 28; Ken Paulson, Jailed for Speech: Criminal Libel is an Old—and Bad—Idea, Jan. 18, 2004, http://www.firstamendmentcenter.org/commentary.aspx?id=12468 ("There's no justification for keeping these laws on the books. A free society doesn't threaten citizens with jail for exercising their freedom of speech."). 13 See, e.g., Pember & Calvert, supra note 11, at 235 ("Authorities in most states are unwilling to take on someone else's troubles and prosecute for criminal libel so long as a civil remedy is available."); Editorial, supra note 5, at A24 ("But libel online, like all libel, is best redressed by replenishing the plaintiff's purse, not by turning the defendant into a criminal."); Kirtley, supra note 6, at 74 ("Civil lawsuits offer an adequate remedy for those whose reputations are genuinely harmed."); Laskin, supra note 12, at 28 ("Civil lawsuits fill the needs of libel victims and society as a whole…."); Paulson, supra note 12 ("If someone writes an article that is defamatory, a plaintiff can sue and recover monetary damages. The system works."). 14Ashton v. Kentucky, 384 U.S. 195 (1966); Garrison v. Louisiana, 379 U.S. 64 (1964); Beauharnais v. Illinois, 343 U.S. 250 (1952). 15 See, e.g., Middleton & Lee, supra note 10, at 96; Dwight L. Teeter Jr., Don R. Le Duc & Bill Loving, Law of Mass Communications: Freedom and Control of Print and Broadcast Media 75–76 (9th ed. 1998). 16 Beauharnais, 343 U.S. at 253-54. 17 Id. at 267 (Black, J., dissenting); id. at 277 (Reed, J., dissenting); id. at 287 (Jackson, J., dissenting). 18New York Times v. Sullivan, 376 U.S. 254 (1964). 19 Garrison, 379 U.S. at 74–75. 20 Id. at 72–73. Despite the Court's seemingly unambiguous holding that truth was an absolute defense only in cases involving public officials and "public business," some observers have interpreted the Court's holding to mean that truth is also an absolute defense in criminal libel prosecutions generally. See, e.g., Lisby, supra note 12, at 460 ("This evolution culminated in 1964 with the Supreme Court's decision in Garrison v. Louisiana, in which the Court … acknowledged that truth may not be punished in criminal libel cases."); Kirtley, supra note 6, at 74 ("The First Amendment requires that truth must be a defense to any criminal libel charge, even if the statements were made with ill will or bad motives."); Laskin, supra note 12, at 27 ("Garrison said state criminal libel statutes are unconstitutional if they allow for prosecution of truthful statements."). 21Ashton v. Kentucky, 384 U.S. 195 (1966). 22 Id. at 200. 23The maximum penalty for Class A misdemeanors in Wisconsin is a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both. Wis. Stat. § 939.51(3)(a) (2007). 24The "good motives and justifiable ends" limitation on the truth defense comes from the Wisconsin Constitution, which was adopted in 1848. Wis. Const. art. I, § 3. The limitation is found in many state constitutions and criminal libel statutes. See Garrison, 379 U.S. at 71. 25Wis. Stat. §§ 942.01(1) – 942.01(4) (2007). 26Wisconsin Supreme Court cases that have considered criminal libel are State v. Cardenas-Hernandez, 579 N.W.2d 678 (Wis. 1998); State v. Herman, 262 N.W. 718 (Wis. 1935); Branigan v. State, 244 N.W. 478 (Wis. 1932); State v. Mueller, 243 N.W. 478 (Wis. 1932); Malone v. State, 212 N.W. 879 (Wis. 1927); Hyde v. State, 150 N.W. 965 (Wis. 1915); State ex rel. Sullivan v. Dist. Court of Milwaukee County, 130 N.W. 58 (Wis. 1911); Barnum v. State, 66 N.W. 617 (Wis. 1896); Hauser v. State, 33 Wis. 678 (1873). Wisconsin Court of Appeals cases that have involved criminal libel are State v. Wolf, 617 N.W.2d 678 (Wis. Ct. App. 2000); State v. Gilles, 496 N.W.2d 133 (Wis. Ct. App. 1992); State v. Stebner, 506 N.W.2d 170 (Wis. Ct. App. 1993). 27Garrison v. Louisiana, 379 U.S. 64 (1964). 28One law review article since 1990 has focused on Wisconsin libel law. It disposed of the state's criminal libel statute in a single sentence. Sarah A. Maguire, A Misplaced Focus: Libel Law and Wisconsin's Distinction Between Media and Non-Media Defendants, 2004 Wis. L. Rev. 191 (2004). A 1996 book about communication law in Wisconsin devoted two sentences to criminal libel, one of which erroneously stated that "it has not been an active area of the law in recent years." Gary Coll, Mass Communication Law in Wisconsin 17 (1996). Other summaries of laws that apply to Wisconsin communicators do not mention criminal libel. See, e.g., State Bar of Wisconsin, Wisconsin News Reporters' Legal Handbook (5th ed. 2005); Jennifer L. Peterson, The Shifting Legal Landscape of Blogging, 79 Wis. Law. 8 (Mar. 2006). 29Wis. Stat. § 942.01(3) (2007) (emphasis added). 30 See Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967). 31 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40 (1974). A useful standard for distinguishing pure opinions from those opinions that imply defamatory facts can be found in Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984). 32 See State v. Cardenas-Hernandez, 579 N.W.2d 678 (Wis. 1998) (The absolute civil privilege for defamatory statements made in judicial proceedings prohibits a criminal libel prosecution, even when the statements constitute perjury as well as defamation.); State v. Gilles, 496 N.W.2d 133, 135–37 (Wis. Ct. App. 1992) (The common-law defense of conditional privilege recognized in the civil law applies to criminal libel). 33 See, e.g., Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995); People v. Ryan, 806 P.2d 935 (Colo. 1991); Pegg v. State, 659 P.2d 370 (Okla. Crim. App. 1983). 34Wis. Stat. § 942.01(3) (2007). 35 Id. 36State v. Stebner, 506 N.W.2d 170, 171 (Wis. Ct. App. 1993) ("Defendant argues that true statements are not defamatory. That is only partly correct. To constitute a defense, there must be more than a communication of truthful matter. 'This section does not apply if the defamatory matter was true and was communicated with good motives and for justifiable ends or if the communication was otherwise privileged.' It is impossible to infer good motives, justifiable ends or privilege from the complaint" (emphasis in original).). 37Denny v. Mertz, 318 N.W.2d 141, 153 (Wis. 1982). See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 ("It is speech on matters of public concern that is at the heart of the First Amendment's protection."). For an overview of state law on this point, see Ruth Walden & Derigan Silver, Deciphering Dun & Bradstreet: Does the First Amendment Matter in Private Figure-Private Concern Defamation Cases?, 14 Comm. L. & Pol'y 1–39 (2009). 38 See supra notes 4–13 and accompanying text. 39 Criminalizing Speech About Reputation: The Legacy of Criminal Libel in the U.S. After Sullivan & Garrison, 2003 Media L. Resource Center Bull., No. 1 (Mar. 2003). 40Russell Hickey, A Compendium of U.S. Criminal Libel Prosecutions: 1990–2002, 2002 Libel Def. Resource Center Bull No. 2 (Mar. 2002). 41Katrina Hull, Criminal Defamation 19-20 (U. Kan. Sch. of L. Pub. Pol'y Clinic, Fall 2003), available at http://web.ku.edu/~rlevy/PPC_F04/Materials/Criminal_Defamation.pdf. 42Hickey, supra note 40, at 97. 43At the end of 2008, the following fifteen states and one territory had criminal libel statutes that had not been invalidated by an authoritative decision of an appellate court: Colorado, Colo. Rev. Stat. § 18-13-105 (2007); Florida, Fla. Stat. § § 836.01–836.10 (2008); Idaho, Idaho Code §§ 18-4801–18-4808 (2008); Kansas, Kan. Stat. Ann. § § 21–4004 -21-4006 (2006); Louisiana, La. Rev. Stat. Ann. § § 14:47–14:50 (2008); Michigan, Mich. Comp. Laws § 750.370 (2008); Minnesota, Minn. Stat. § § 609.765, 628.22, 631.06 (2007); Montana, Mont. Code Ann. § 45-8-212 (2007); New Hampshire, N.H. Rev. Stat. Ann. 644:11 (2008); North Carolina, N.C. Gen. Stat. § § 14–47, 15–168 (2008); North Dakota, N.D. Cent. Code § 12.1-15-01 (2008); Oklahoma, 21 Okl. St. § § 771–774, 776; Utah, Utah Code Ann. § 76-9-404 (2008); Virgin Islands, 14 V.I. Code § § 1171–1178 (2008); Virginia, Va. Code Ann. § 18.2-417 (2008); Wisconsin, Wis. Stat. § 942.01 (2007). Comments about these jurisdictions' criminal libel statutes and how courts have interpreted them can be found in Media Libel Law 2008-09: LDRC 50-State Survey (2008). 44Studies of criminal libel prosecutions in years before the 1990s focused almost exclusively on appellate court activity. See Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Texas L. Rev. 984 (1956); Lisby, supra note 12; George E. Stevens, Criminal Law After Garrison, 68 Journalism Q. 522 (1991); John D. Stevens, Robert L. Bailey, Judith F. Krueger & John M. Mollwitz, Criminal Libel as Seditious Libel, 1916–1965, 43 Journalism Q. 110 (1966). 45 See, e.g., Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 Cornell L. Rev. 119, 125 (2002) ("Judicial decisions represent only the very tip of the mass of grievances."); David A. Hoffman, Alan J. Izenman & Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 Wash. U.L. Rev. 681, 683 (2007) ("For many observers of the American legal system, law is what judges write in appellate opinions. These observers are mistaken. But the gravitational pull of an appellate-centered view of the legal world is strong. Opinions from such tribunals continue to dominate the training of new lawyers and are widely disseminated by the mainstream media."); Kay L. Levine, The Law is Not the Case: Incorporating Empirical Methods into the Culture of Case Analysis, 17 U. Fla. J.L. & Pub. Pol'y 283, 285 (2006) ("We should be aware that constructing legal arguments in the context of one case, or teaching students how to do so, is distinct from making claims about what the law in a particular area really is, in all of its many forms and messy realities."); Ahmed E. Taha, Data and Selection Bias: A Case Study, 75 UMKC L. Rev. 171, 171 (2006) ("When studies use as data only those cases that result in a published judicial opinion, they are vulnerable to a publication bias that can lead to erroneous conclusions."). 46Just as appellate court activity is an unsound basis for making valid conclusions about activity in trial courts, so too are news media reports, which typically provide a very unrepresentative view of trial court activity. See, e.g., David Pritchard & Karen D. Hughes, Patterns of Deviance in Crime News, 47 J. Comm. 49 (Summer 1997). 47 See, e.g., Randall P. Bezanson, Gilbert Cranberg & John Soloski, Libel Law and the Press: Myth and Reality 235–47 (1987); Timothy W. Gleason, The Libel Climate of the Late Nineteenth Century: A Survey of Libel Litigation, 1884–1899, 70 Journalism Q. 893 (1993); David Pritchard, A New Paradigm for Legal Research in Mass Communication, 8 Comm. & the L. 51 (Aug. 1986). For surveys of alternatives to the tradition legal-research paradigm with respect to communication law generally, see Jeremy Cohen & Timothy Gleason, Social Research in Communication and the Law (1990); Communication and Law: Multidisciplinary Approaches to Research (Amy Reynolds & Brooke Barnett eds. 2006). 48Gleason, supra note 47, at 893. See also Diane L. Borden, Patterns of Harm: An Analysis of Gender and Defamation, 2 Comm. L. & Pol'y 105, 123 (1997) (noting the "obvious appellate-level bias and resulting sampling distortion" of the West case-reporting system). A handful of scholars doing research in areas of communication law other than libel also express awareness of the limitations of focusing only on appellate cases. See, e.g, Cathy Packer, Don't Even Ask! A Two-Level Analysis of Government Lawsuits Against Citizen and Media Access Requestors, 13 Comm. L. & Pol'y 29, 30 n.9 (2008) ("Cases that are settled before trial and cases that go to trial but are not appealed usually do not result in published opinions, and therefore most of them are not included in this study."); Cathy Packer & Johanna Cleary, Rediscovering the Public Interest: An Analysis of the Common Law Governing Post-Employment Non-Compete Contracts for Media Employees, 24 Cardozo Arts & Ent. L. J. 1073, 1083 n.52 (2007) ("Most trial court decisions were not included in this study because they are generally not reported. One can safely assume, therefore, that these fifty-one [appellate] cases represent a relatively small proportion of the conflicts."). 49 See http://wcca.wicourts.gov/index.xsl. 50 See http://www.lexisnexis.com/us/lnacademic/. 51 See http://www.uwm.edu/Libraries/guides/wisconsin.htm. 52Malcolm M. Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court xxxii (1992) ("Can what we learn here be generalized to other cities as well? … This is not really the right question. No single city can be regarded as 'typical.' The correct test is not to show that New Haven is typical of all American cities or typical of middle-sized cities, but rather to show that it is not so atypical as to be unique."). 53Mark Preston, The Most "Representative" State: Wisconsin, July 27, 2006, available at http://www.cnn.com/2006/POLITICS/07/27/mg.thu/index.html. 54The political culture categorizations are from Daniel Elazar's widely cited work. Daniel J. Elazar, American Federalism: A View from the States 103–26 (3d ed. 1984). 55Middleton & Lee, supra note 10, at 97. 56U.S. Census Bureau, Wisconsin—County Population, Housing Units, Area, and Density (2000). 57Jobs considered low-income included part-time employment at a fast-food restaurant, part-time employment at Target, employment as a receptionist in a small-town optometrist's office, working as a substitute school bus driver, and being a clerical employee in a rural sheriff's department. About a dozen of the defendants had significant criminal histories at the time they were charged with criminal libel. 58Some scholars who accept the prevailing wisdom that prosecutions for criminal libel are rare nonetheless correctly assert that there has been an increase in the number of criminal libel prosecutions since the use of the Internet became widespread. The authors of a communication law textbook published in 2007, while accepting the notion that there had been no convictions for criminal libel from 1974 until the early twenty-first century, wrote that there had been "a flurry of cases during the last five years." T. Barton Carter, Juliet Lushbough Dee & Harvey L. Zuckman, Mass Communication Law 47 (6th ed. 2007). The author of a textbook chapter published in 2008 specifically noted criminal libel cases involving on-line defamation. He wrote: "These statutes are rarely used today, but they have been applied to Internet publishers recently." Kyu Ho Youm, Defamation, in Communication and the Law 91, 94 (W. Wat Hopkins ed., 2009). See also Susan W. Brenner, Prosecution Responses to Internet Victimization: Should Online Defamation Be Criminalized?, 76 Miss. L.J. 705 (2007); Edward L. Carter, Outlaw Speech on the Internet: Examining the Link between Unique Characteristics of Online Media and Criminal Libel Prosecutions, 21 Santa Clara Computer & High Tech. L.J. 289 (2005). 59The definition of "public official" from Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) was used ("[T]he 'public official' designation applies, at the very least, to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs."). The definition was interpreted as broadly as possible to ensure that the number of cases that resulted from criticism of public officials or discussion of public issues was not understated. The study's "public official" cases included those in which the people who were allegedly defamed were a village president, a candidate for village president, a member of a county board, a director of the municipal emergency medical services department in a small city, a county attorney, a county clerk of court, a small-town postmaster who was also his community's zoning administrator, a small-town police chief, two county judges, a district attorney, an assistant principal of a high school, and a school official whose title was not specified in the court file. 60Leflar, supra note 44, at 985. 61State v. Brusen, No. 1993CM1033 (Circuit Court, Eau Claire County, 1993). 62State v. Krohn, No. 1996CM180 (Circuit Court, Grant County, 1996). 63State v. Mathison, No. 1992CF546 (Circuit Court, La Crosse County, 1992). See also Associated Press, Judge Calls Teen 'Sick' in Sex-video Case, Madison Cap. Times, May 29, 1992, at 1A; Associated Press, Judge Berates Youth Over Sex Videotape, Wis. St. J., May 30, 1992, at 2D. 64Wis. Stat. § 942.09(2)(c) (2001). 65State v. Jacob, No. 2003CF551 (Circuit Court, La Crosse County, 2003). Although the defendant did not contest the charge, it is worth noting that the truth of the naked images would have been a valid defense only if the images had been "communicated with good motives and for justifiable ends." Wis. Stat. § 942.01(3) (2007). 66State v. Maloney, No. 1992CM978 (Circuit Court, Waukesha County, 1992). 67State v. Patraw, No. 2002CM318 (Circuit Court, La Crosse County, 2002). 68State v. Pomeroy, No. 2001CM462 (Circuit Court, Marinette County, 2001). 69The chair of the Criminal Law Section of the Wisconsin Bar Association was quoted as saying that the charge was "quite unique." He added: "I can't recall ever seeing a criminal defamation case in Wisconsin." Mike Johnson & Lisa Sink, Pictures Bring Defamation Charge, Milwaukee J. Sentinel, Sept. 17, 1999, at 1A. 70Lisa Sink & Jeanette Hurt, Posting Nude Photos of Ex-girlfriend Brings Fine, Milwaukee J. Sentinel, May 22, 2001, at 1B. 71 Id. 72State v. Karnstein, No. 1999CM2222 (Circuit Court, Waukesha County, 1999). 73Johnson & Sink, supra note 69, at 1A. 74State v. Frank, No. 2001CM38 (Circuit Court, Waukesha County, 2001). 75Only nine of the sixty-one criminal libel defendants in our study (15%) made a First Amendment argument. See infra notes 145–150 and accompanying text. 76Wis. Stat. § 943.201(2)(c) (2005). 77State v. Bauer, No. 2006CF959 (Circuit Court, Eau Claire County, 2006). 78State v. Spiro, No. 2007CM910 (Circuit Court, La Crosse County, 2007). 79 Id. 80Wis. Stat. § 947.0125(1)(d) (2005). 81State v. Dabbert, No. 2000CM1563 (Circuit Court, Waukesha County, 2000). See also Lisa Sink, Man Convicted of Posting Ex-boss' Name on Sex Site, Milwaukee J. Sentinel, Aug. 11, 2000, at 15B; Lisa Sink & Linda Spice, Man Charged With Defamation, Milwaukee J. Sentinel, June 7, 2000, at 15B. 82State v. Kunze, No. 2004CF23 (Circuit Court, Forest County, 2004). 83State v. Baron, No. 2006CF496 (Circuit Court, Jefferson County, 2006). 84Wis. Stat. § 943.201(2)(c) (2005). 85Wis. Stat. § 946.41(1) (2005). 86Wis. Stat. § § 943.70(2)(a)3; 943.70(2)(a)6 (2005). 87 See, e.g., Associated Press, DA: Gossip Led to Suicide, Madison Cap. Times, Sept. 28, 2006, at A3; Associated Press, Suicide Linked to Hacker Gossip, Wis. St. J., Sept. 29, 2006, at B3; Jacqueline Seibel, Man Charged With Defamation After Boss' Suicide; Ex-Jefferson Staffer Routed Private E-mails, Officials Say, Milwaukee J. Sentinel, Sept. 28, 2006, at B1. 88 See Jacqueline Seibel, Charge Dropped in Affair E-mails; Defamation Statute Unconstitutional, District Attorney Says, Milwaukee J. Sentinel, Mar. 7, 2007, at B3. 89 See Jacqueline Seibel, State Appeals ID Theft Ruling; Case Involves E-mails About Affair, Milwaukee J. Sentinel, Sept. 10, 2007, at B5. 90State v. Baron, 754 N.W.2d 175 (Wis. Ct. App. 2008). See also Ryan J. Foley, Worker Can Face Identity Theft Charges; Man's Boss Committed Suicide After E-mails, Wis. St. J., May 30, 2008, at B5; Marie Rohde, ID Theft Charge Should Stand, Court Rules; Former EMT Sent E-mails Implying Boss Had an Affair, Milwaukee J. Sentinel, May 30, 2008, at B3. 91State v. Baron, 758 N.W.2d 90 (Wis. 2008). 92Robert Leflar's 1956 study used the heading "Gossip, female unchastity, and general nastiness" to describe a similar grouping of cases. Leflar, supra note 44, at 1009. 93State v. Stebner, No. 1992CM457 (Circuit Court, La Crosse County, 1992). 94 Keeping Customers' Sexual Photos Ruled Not Defamatory, Wis. St. J., Apr. 27, 1992, at 3D. 95State v. Stebner, 506 N.W.2d 170 (Wis. Ct. App. 1993), rev. denied, 508 N.W. 2d 422 (Wis. 1993). 96State v. Diderrich, No. 1996CM1292 (Circuit Court, La Crosse County, 1996). See also Woman Faces Charges Over CB Radio Chatter, Wis. St. J., Sept. 20, 1996, at B3; CB Radio User Accused of Defaming Others, Milwaukee J. Sentinel, Sept. 21, 1996, at B5. 97Wis. Stat. § 948.40(1) (1997). 98State v. Bassette, No. 1998CM923 (Circuit Court, Chippewa County, 1998). 99State v. Deeny, No. 1999CF98 (Circuit Court, Monroe County, 1999). 100Deeny v. Deeny, No. 1996FA198 (Circuit Court, Monroe County, 1996). 101State v. Coppelman, No. 2004CM1589 (Circuit Court, Kenosha County, 2004). 102A "brat" (the word rhymes with "hot") is a bratwurst, a German-style sausage popular throughout Wisconsin. 103State v. Warner, No. 2000CM469 (Circuit Court, Shawano County, 2000). 104State v. Stariha, No. 1995CM209 (Circuit Court, Washburn County, 1995). 105 Id. 106 Couple Convicted of Defaming Grocer by Spreading Claim That He Sold Porn, Milwaukee J. Sentinel, Oct. 24, 1999, at 2. 107State v. L. Wolf, No. 1998CM428 (Circuit Court, Chippewa County, 1998); State v. B. Wolf, No. 1998CM429 (Circuit Court, Chippewa County, 1998). 108Larry J. Wolf and Belinda C. Wolf v. Timothy F. Scobie et al., 28 Fed. Appx. 545 (7th Cir. 2002); State v. Larry J. and Belinda C. Wolf, 617 N.W.2d 678 (Wis. Ct. App. 2000). 109State v. Gocek, No. 2001CM321 (Circuit Court, Walworth County, 2001); State v. Kuss, No. 2001CM323 (Circuit Court, Walworth County, 2001); State v. Mann, No. 2001CM322 (Circuit Court, Walworth County, 2001). 110State v. Mann, No. 2001CM322 (Circuit Court, Walworth County, 2001). 111State v. Gocek, No. 2001CM321 (Circuit Court, Walworth County, 2001). 112State v. Kuss, No. 2001CM323 (Circuit Court, Walworth County, 2001) (citing Hustler v. Falwell, 485 U.S. 46 (1988)). 113 Id. 114State v. DePula, No. 2005CF129 (Circuit Court, Dane County, 2005). 115Wis. Stat. § 943.201(2)(c) (2003). 116In DePula's own words: I have never disseminated any information that I believe to be untrue. Though my actions might be described as juvenile, in poor taste, or just plain stupid, I truly believe that the posts made to various sex sites, including alt.sex.bestiality, were made by Supervisor Don Eggert. Though some may find it distasteful to disseminate such material, I believe it to be truthful and well within my constitutional rights to speak about it, make fun of it, criticize or parody it. Patrick DePula, statement at sentencing, July 16, 2004, available at http://www.channel3000.com/print/3533183/detail.html. 117 See Steven Elbow, DePula Pleads Guilty to E-mail Defamation, Madison Cap. Times, Nov. 15, 2005, at C1. 118 See Ed Treleven, DePula Pleads to Defamation in E-mail Case, Wis. St. J., Nov. 15, 2005, at B1. 119 See Robert J. Schmitt, Letter to the Editor, Olson Doesn't Substantiate Claims, Dunn County News, Jan. 5, 2003 (photocopy of newspaper clipping without page number in court file of State v. Schmitt, No. 2003CM108 (Circuit Court, Dunn County, 2003)). 120State v. Schmitt, No. 2003CM108 (Circuit Court, Dunn County, 2003). 121Wis. Stat. § 942.03 (2003). 122State v. Schmitt, No. 2004CM290 (Circuit Court, Dunn County, 2004). 123State v. Rady, No. 1995CM109 (Circuit Court, Lincoln County, 1995). 124 See Robert Imrie, District Attorney's Temper at Issue in Removal Hearing, Wis. St. J., June 22, 1996, at B3. 125In the Matter of Disciplinary Proceedings Against James F. Blask, 573 N.W.2d 835 (Wis. 1998). 126 See Associated Press, No Restraining Order for Man Critical of Cops, Wis. St. J., Feb. 6, 2000, at 7B. 127State v. Groskreutz, No. 2000CM153 (Circuit Court, Waupaca County, 2000). 128Joseph Koelsch, False Rumors About Prominent Richland County People Probed: Those Being Targeted are Public Officials and Business Leaders, Wis. St. J., Sept. 16, 2000, at B3. 129State v. McQuillan, No. 2004CM96 (Circuit Court, Richland County, 2004). 130State v. McQuillan, No. 2000CF27 (Circuit Court, Richland County, 2000). 131State v. McQuillan, No. 2001CM164 (Circuit Court, Richland County, 2001). 132State v. McQuillan, No. 2002CM301 (Circuit Court, Richland County, 2002). 133Wis. Stat. § 946.41(1) (1997). 134State v. Oleson, No. 1998CM234 (Circuit Court, Racine County, 1998). 135State v. Heuer, No. 2003CM778 (Circuit Court, La Crosse County, 2003). 1