Frese v. Formella

          United States Court of Appeals
                     For the First Circuit


No. 21-1068

                          ROBERT FRESE,

                      Plaintiff, Appellant,

                               v.

 JOHN M. FORMELLA, in his official capacity as Attorney General
                 of the State of New Hampshire,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph N. Laplante, U.S. District Judge]


                             Before

         Kayatta, Howard, and Thompson, Circuit Judges.


     Brian Hauss, with whom Emerson Sykes, American Civil
Liberties Union Foundation; Gilles Bissonnette and Henry R.
Klementowicz, American Civil Liberties Union of New Hampshire;
John M. Greabe; Lawrence A. Vogelman and Shaheen & Gordon, P.A.
were on brief, for appellant.
     Samuel R.V. Garland, Assistant Attorney General, with whom
John M. Formella, Attorney General of New Hampshire, and Anthony
J. Galdieri, Senior Assistant Attorney General, were on brief, for
appellee.


                        November 8, 2022
           HOWARD, Circuit Judge.        New Hampshire is among a handful

of states that allow criminal prosecution of defamation. Appellant

Robert Frese has twice been charged with violating the criminal

defamation   statute   and   now   argues     that   the   statute   itself

contravenes the First and Fourteenth Amendments.            Mindful of the

Supreme Court's guidance that "the knowingly false statement and

the false statement made with reckless disregard of the truth, do

not enjoy constitutional protection[,]" we conclude that Frese's

allegations fall short of asserting viable constitutional claims.

Garrison v. Louisiana, 

 (1964).         We thus affirm the

district court's dismissal.

                                    I.

           New Hampshire's criminal defamation statute provides

that "[a] person is guilty of a class B misdemeanor if he purposely

communicates to any person, orally or in writing, any information

which he knows to be false and knows will tend to expose any other

living person to public hatred, contempt or ridicule."           N.H. Rev.

Stat.   § 644:11(I).    "'[P]ublic'       includes   any   professional   or

social group of which the victim of the defamation is a member."

Id. at § 11(II).   A person convicted of a class B misdemeanor faces

a fine of up to $1,200.      N.H. Rev. Stat. § 651:2(IV)(a).         Because

such charges carry no possibility of jail time, criminal defamation

defendants have no right to trial by jury and are not afforded


                                   - 2 -
court-appointed counsel.         See State v. Whitney, 

, 382

(2019);    State   v.   Foote,   

   (2003);    State   v.

Westover, 

 (1995).

            New Hampshire's misdemeanor enforcement process empowers

police departments to prosecute defamation.            In the absence of the

exercise    of   discretionary     supervisory    authority    by     the   state

Attorney General or County Attorneys, municipal police departments

may initiate prosecutions for misdemeanors, including criminal

defamation, without prior input or approval from such prosecutors.

See State v. La Palme, 

 (1962) ("The prosecution

of misdemeanors by police officers is a practice that has continued

in one form or another since 1791 and is still permissible under

existing statutes." (citing State v. Urban, 

 (1953)));

see also N.H. Rev. Stat. § 41:10-a (recognizing the power of police

officers to prosecute misdemeanors).             Private citizens may also

prosecute misdemeanors in New Hampshire, so long as incarceration

is not an applicable penalty.            See State v. Martineau, 

 (2002).1

            Although criminal defamation is rarely prosecuted in New

Hampshire, Frese has twice been charged under section 644:11.                  In


     1 Notably, any private citizen who commences one of these
actions could be held liable for malicious prosecution if that
person acted without probable cause; likewise, a police officer
could be liable if the officer acted wantonly. Farrelly v. City
of Concord, 

 (2015); State v. Rollins, 

 (1987) (Souter, J.).
                                       - 3 -
2012, the Hudson Police Department arrested Frese for comments

about a local life coach that he posted on a Craigslist website.

Frese called the coach's business a scam and accused him of, among

other   things,    being    involved    in   a    road    rage    incident    and

distributing heroin.       Without the advice of counsel, Frese pleaded

guilty and was fined $1,488, of which $1,116 was conditionally

suspended.    Six years later, the Exeter Police Department arrested

Frese for comments he had pseudonymously posted in the online

comments section of a newspaper article about a retiring Exeter

police officer. The comments included statements that the retiring

officer was "the dirtiest[,] most corrupt cop [Frese] ha[d] ever

had the displeasure of knowing" and that the officer's daughter

was a prostitute.

             Frese's second arrest generated public controversy.               In

response,    the   New   Hampshire     Attorney    General       interposed   and

concluded that the police department had arrested Frese without

probable cause because there was no evidence that Frese knew his

statements were false.       The Exeter Police Department subsequently

dropped the charges.

             In late 2018, maintaining that he feared future arrest,

Frese filed a complaint in federal district court asserting that

section 644:11 is so vague as to violate the Fourteenth Amendment.

After   initial    skirmishing,      Frese   filed   an    amended    two-count

complaint, which is the operative complaint before us.               As before,

                                     - 4 -
the first count charges that section 644:11 "is unconstitutionally

vague, both on its face and as applied in the context of New

Hampshire's system for prosecuting [c]lass B misdemeanors," in

violation of the Fourteenth Amendment.              The second count asserts

that       the   statute   "violates    the     First    Amendment   because   it

criminalizes defamatory speech."              The State moved to dismiss the

amended complaint, and the district court obliged.                   After first

finding that Frese had established standing to bring the case, the

court dismissed for failure to state a claim, pursuant to Federal

Rule of Civil Procedure 12(b)(6).2 Frese's timely appeal followed.

                                        II.

                 We   review   the   district    court's     dismissal   of    the

complaint under Rule 12(b)(6) de novo.             See Barchock v. CVS Health

Corp., 

 (1st Cir. 2018) (citing SEC v. Tambone, 

 (1st Cir. 2010) (en banc)).               "We take the complaint's

well-pleaded facts as true, and we draw all reasonable inferences

in [Frese's] favor."           

   Well-pleaded facts are those that are

"'non-conclusory' and 'non-speculative.'"                

 (quoting Schatz v.



       The parties do not challenge the finding of standing, and
       2

we see no error in the district court's standing analysis. See
Dantzler, Inc. v. Empresas Berríos Inventory and Operations, Inc.,

 (1st Cir. 2020) ("'[B]ecause standing is a
prerequisite    to    a    federal    court's    subject    matter
jurisdiction' . . . we must 'assure ourselves of our jurisdiction
under the federal Constitution' before we proceed to the merits of
a case." (first quoting Hochendoner v. Genzyme Corp., 

 (1st Cir. 2016), then quoting Pérez-Kudzma v. United
States, 

 (1st Cir. 2019))).
                                       - 5 -
Republican State Leadership Comm., 

 (1st Cir.

2012)).      To    survive     dismissal,    "the   complaint   must     'contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.'"             

 (quoting Tambone, 

).

     A.     First Amendment Claim

            Frese argues that section 644:11 violates the First

Amendment    because       criminal    defamation   laws   should   be    per   se

unconstitutional.           The Supreme Court, however, has upheld the

criminalizing of false speech, explaining that deliberate and

recklessly        false     speech    "do[es]   not    enjoy    constitutional

protection."        Garrison, 

.           Thus, the state can

"impose criminal sanctions for criticism of the official conduct

of public officials" so long as the statements were made with

"'actual malice' -- that is, with knowledge that [they were] false

or with reckless disregard of whether [they were] false or not."

 at 67 (quoting New York Times Co. v. Sullivan, 

 (1964)); see also Mangual v. Rotger-Sabat, 

(1st Cir. 2003).

            Frese     concedes       that   Garrison   forecloses   his     First

Amendment claim but argues that "[t]he time has come to revisit

that decision."           But, as Frese acknowledges, we do not have the

power to revisit Supreme Court decisions.                  See Hohn v. United

States, 

 (1998); United States v. Morosco, 822

                                        - 6 -
F.3d 1, 7 (1st Cir. 2016) ("[B]ecause overruling Supreme Court

precedent is the Court's job, not ours, we must follow [prior

decisions] until the Court specifically tells us not to . . . even

if   these    long-on-the-books       cases       are    in    tension   with      [newer

cases].").      Accordingly, we must find that Garrison precludes

Frese's First Amendment attack on section 644:11.

      B.     Fourteenth Amendment Vagueness

             "The vagueness doctrine, a derivative of due process,

protects against the ills of laws whose 'prohibitions are not

clearly defined.'"         Nat'l Org. for Marriage v. McKee, 

   (1st    Cir.    2011),    abrogated     on    other      grounds    by    Ams.     for

Prosperity Found. v. Bonta, 

 (2021) (quoting Grayned

v. City of Rockford, 

 (1972)).                          A statute is

impermissibly vague if it "fails to provide a person of ordinary

intelligence        fair   notice    of    what    is     prohibited,         or   is   so

standardless        that      it   authorizes       or        encourages       seriously

discriminatory enforcement."              United States v. Williams, 

 (2008) (citing Hill v. Colorado, 

(2000)); see also Johnson v. United States, 

(2015).      This creates two avenues by which to attack a vague

statute: discriminatory enforcement and lack of notice.

             To prevent the chilling of constitutionally protected

speech, we apply a "heightened standard" in cases involving the

First Amendment and "require[] a 'greater degree of specificity'"

                                          - 7 -
in a statute that restricts speech.           McKee, 

 (quoting

Buckley v. Valeo, 

 (1976)).                   Additionally, "if

criminal penalties may be imposed for violations of a law, a

stricter    standard    is   applied     in    reviewing    the   statute     for

vagueness."     Manning v. Caldwell for City of Roanoke, 

 (4th Cir. 2019) (citing Vill. of Hoffman Ests. v.

Flipside, Hoffman Ests., Inc., 

 (1982)).                "But

'perfect clarity and precise guidance have never been required

even   of    regulations     that   restrict       expressive      activity.'"

Williams, 

 (quoting Ward v. Rock Against Racism,

 (1989)); see also McKee, 

.

            Frese mounts a facial challenge to section 644:11, as

well as a "hybrid" challenge.             We first consider his facial

challenge.     To succeed, Frese must "establish that no set of

circumstances exists under which the [statute] would be valid."

Dutil v. Murphy, 

 (1st Cir. 2008) (quoting United

States v. Salerno, 

 (1987)).              We are mindful that

facial challenges "are disfavored" because they "often rest on

speculation,"    "run   contrary    to    the    fundamental      principle    of

judicial restraint," and "threaten to short circuit the democratic

process."     Hightower v. City of Boston, 

 (1st

Cir. 2012) (quoting Wash. State Grange v. Wash. State Republican

Party, 

 (2008)).



                                    - 8 -
             Frese argues that section 644:11 is unconstitutionally

vague under both lack of notice and discriminatory enforcement

theories,     training         most     of    his    attention      on    discriminatory

enforcement.       We turn to that claim first.

             1.        Discriminatory Enforcement

             A    "statute        authorizes         an    impermissible      degree      of

enforcement discretion -- and is therefore void for vagueness --

where   it   fails       to    'set     reasonably        clear   guidelines       for   law

enforcement officials and triers of fact in order to prevent

arbitrary and discriminatory enforcement.'"                       Act Now to Stop War

& End Racism Coal. v. District of Columbia, 

(D.C. Cir. 2017) (quoting Smith v. Goguen, 

(1974)); see also Kolender v. Lawson, 

 (1983)

(explaining that the most "important aspect of vagueness doctrine"

is   "the    requirement          that       a   legislature        establish      minimal

guidelines        to    govern        law     enforcement"        (internal       citation

omitted)).

             We conclude that the statute at issue here provides

adequate guidelines for law enforcement, and therefore passes

constitutional          muster.         Frese       argues   that     the    statute      is

unconstitutionally            vague,    because       different     persons       may    have

"different        standards       for       determining      what    is     and    is    not

defamatory."       But the statute provides reasonably clear guidance

-- defamatory statements are those false statements that "expos[e]

                                             - 9 -
any . . . person      to     public       hatred,   contempt    or    ridicule."

Likewise,   we   doubt      that    reasonable      persons    will   have   much

difficulty in ascertaining objectively whether a false statement

exposes the victim to public hatred, contempt, or ridicule, even

if the public is defined to include professional and social groups

to which the victim belongs.          Frese offers no hypothetical example

of how a factfinder might struggle unduly to determine whether a

given set of facts demonstrates the requisite tendency of the false

remarks.     Indeed,       for    centuries     factfinders    have   made   such

determinations.    E.g., Richardson v. Thorpe, 

(1906) (collecting cases for the proposition that whether an

ambiguous phrase was defamatory is a question for the jury).

            The parties also agree that section 644:11 adopts part

of New Hampshire's common law defamation standard.                    Under the

common law, "[w]ords may be found to be defamatory if they hold

the plaintiff up to contempt, hatred, scorn or ridicule, or tend

to impair [the plaintiff's] standing in the community."                  Boyle v.

Dwyer, 

, 554 (2019) (second alteration in original)

(quoting Thomas v. Tel. Publ'g Co., 

, 338 (2007)).

The   incorporation    of        common   law   standards     provides   further

guidance to law enforcement about the meaning of the statute, not

least because the definition of defamation under New Hampshire

common law has remained relatively consistent for over one hundred

years, and has been regularly analyzed by courts and applied by

                                      - 10 -
juries. Compare Richardson, 

 ("Any written words

which directly or indirectly charge a person with a crime, or which

tend to injure his reputation in any other way, or to expose him

to public hatred, contempt, or ridicule, are defamatory."), with

Boyle, 172 N.H. at 554 ("Words may be found to be defamatory if

they hold the plaintiff up to contempt, hatred, scorn or ridicule,

or tend to impair [the plaintiff's] standing in the community."

(alteration in original) (quoting Thomas, 155 N.H. at 338)).

           Additionally, common law defamation in New Hampshire is

subject to objective measurement, which further protects against

arbitrary enforcement.     Under New Hampshire common law, liability

may be imposed only if "the defamatory meaning . . . [is] one that

could be ascribed to the words by persons of common and reasonable

understanding."   Id. (quoting Thomson v. Cash, 

(1979)).

           Nevertheless, Frese contends that "the common law of

civil defamation is not stable or precise enough to define a

criminal restriction on speech."         Frese cites three cases to

support this contention.    But in each of these cases the laws found

to be unconstitutionally vague were significantly broader than

section 644:11 and did not contain a requirement that the speaker

know the statement to be false.    See Ashton v. Kentucky, 

 (1966) (trial court defined criminal libel as "any writing

calculated to create disturbances of the peace, corrupt the public

                                - 11 -
morals, or lead to any act, which, when done, is indictable");3

Tollett v. United States, 

, 1088 n.1 (8th Cir. 1973)

(statute prohibited mailing post cards containing "language of

libelous, scurrilous, defamatory, or threatening character, or

[language] calculated by the terms or manner or style of display

and obviously intended to reflect injuriously upon the character

or conduct of another"); Gottschalk v. State, 

, 290

n.1 (Alaska 1978) (statute proscribed "publish[ing] defamatory or

scandalous matter concerning another with intent to injure or

defame him").4

          Thus, none of Frese's cited cases involved a statute on

all fours with the one here, and Frese offers us no reason to

discount this distinction. And at least one federal district court



     3 It is worth noting that in Ashton, the Supreme Court implied
in its analysis that a criminal defamation law that prohibited
"the publication of a defamatory statement about another which is
false, with malice" would not be unconstitutionally vague. See
Ashton, 

; How v. City of Baxter Springs, 

 (D. Kan. 2005).

     4 The statute in Gottschalk did not define "defamatory or
scandalous." Gottschalk, 

. The court determined
that therefore, "the common law definition must be relied on."

 The common law considered "any statement which would tend to
disgrace or degrade another, to hold him up to public hatred,
contempt or ridicule, or to cause him to be shunned or avoided was
considered defamatory." 

 The court in Gottschalk apparently
found that this common law definition was impermissibly vague,
though at times the court seemed to gesture towards the language
of the statute itself as the root of the vagueness problem. 

 (explaining that the language of the statute -- prohibiting
"defamatory" or "scandalous" speech -- is vague).

                              - 12 -
has denied a vagueness challenge to a criminal defamation statute

broader than section 644:11.           See How, 

(finding statute that criminalized "communicating to a person

orally, in writing, or by any other means, information, knowing

the information to be false and with actual malice, tending to

expose    another    living   person    to   public    hatred,   contempt   or

ridicule; tending to deprive such person of the benefits of public

confidence     and   social   acceptance"    was   not    unconstitutionally

vague).

              Section 644:11 also provides significantly more guidance

than statutes that have been determined unconstitutionally vague.

In Kolender, the Supreme Court concluded that a California statute

targeting loitering was unconstitutional.                The law required a

suspect stopped by police to provide "reliable" identification and

to account for his presence.           Kolender, 

.          When

asked    to   give   "examples   of    how   suspects    would   satisfy    the

[statute's] requirement[s]," counsel explained that "a jogger, who

was     not   carrying   identification,      could,     depending   on     the

particular officer, be required to answer a series of questions

concerning the route that he followed to arrive at the place where

the officers detained him or could satisfy the identification

requirement simply by reciting his name and address."             

(internal citations omitted).



                                   - 13 -
           The Supreme Court determined that this statute afforded

"full discretion" to police "to determine whether the suspect has

provided   a    'credible    and   reliable'    identification,"       

    and

therefore impermissibly "entrust[ed] lawmaking to the moment-to-

moment judgment of the policeman on his beat," 

 (quoting Smith,

).      Other laws or regulations found by courts to be

unconstitutionally vague include statutes that contain no standard

at all about when officials can exercise their discretion, as well

as   regulations        prohibiting       any        "appearance"     that      is

"objectionable."       Act Now, 

 (citing Niemotko v.

Maryland, 

, 271–72 (1951), then quoting Armstrong v.

D.C. Pub. Library, 

 (D.D.C. 2001)); see

also Williams, 

 (explaining that statutes that

proscribe "annoying" behavior are vague, as they involve "wholly

subjective judgments").        The statute here is a far cry from the

blank checks to law enforcement that were found unconstitutional

in these cases.

           Nor    is   the   statute    vague   because      it   requires    some

exercise   of    law   enforcement     judgment      --   indeed,   "enforcement

[inevitably]     requires    the   exercise     of    some   degree   of   police

judgment," and the question thus becomes whether "the degree of

judgment involved . . . is acceptable."                Hill, 

(quoting Grayned, 

). The language of section 644:11

is sufficient, as it gives reasonably specific guidance to law

                                     - 14 -
enforcement.        Likewise, "[w]hat renders a statute vague . . . is

not    the    possibility   that   it   will   sometimes   be   difficult   to

determine whether the incriminating fact it establishes has been

proved; but rather the indeterminacy of precisely what that fact

is."       Act Now, 

 (quoting Williams, 

).

At most, Frese contends that, in any given case, it might be

debatable whether it has been established that a statement in fact

"tend[s] to expose . . . another . . . to hatred [or] contempt."

His challenge fails accordingly.5

               2.   Lack of Notice

               A statute is impermissibly vague for lack of notice "only

if it 'prohibits . . . an act in terms so uncertain that persons

of average intelligence would have no choice but to guess at its

meaning and modes of application.'" McKee, 

 (quoting

United States v. Councilman, 

 (1st Cir. 2005) (en

banc)).6      We conclude that the statute provides sufficiently clear



       Frese argues that the statute must be considered in light
       5

of extrinsic evidence of New Hampshire's enforcement scheme.
However, we need not address this issue, because we determine that
the core statutory text of the criminal defamation statute provides
adequate enforcement guidelines and the prosecution scheme does
not alter or overcome this conclusion.      We therefore need not
address precisely what extrinsic context a court may consider in
a vagueness analysis.

       The district court collapsed its discussion of lack of
       6

notice into its consideration of Frese's excessive discretion
claim.    As Frese points out, however, the district court's
"analysis of [his] arbitrary enforcement challenge focused largely
on notice issues."
                                     - 15 -
notice.   For the reasons described above, the language clearly

defines and delimits its scope, such that it gives a person of

"ordinary intelligence a reasonable opportunity to understand what

conduct it prohibits."   Hill, 

.

          In Hill, the Supreme Court confronted a challenge to a

Colorado statute that that prohibited "knowingly approach[ing]" a

person to "engag[e] in oral protest, education, or counseling with

[that] person."   

.   The Court concluded that the statute

provided adequate notice.   Specifically, it reasoned, while there

might be some hypothetical cases where there would be a "nice

question" about the "meaning of these terms," courts cannot require

statutes to use language with "mathematical certainty."            

 at

732-33 (quoting Am. Commc'ns Assn. v. Douds, 

(1950), then Grayned, 

).         As with the Colorado

statute considered in Hill, section 644:11 may beget cases where

there are questions about whether the conduct at issue falls within

the language of the statute.      However, this alone does not create

a notice problem, given that "it is clear what the [statute] as a

whole prohibits."    Hill, 

 (quoting Grayned, 

); see also Henderson v. McMurray, 

(11th Cir. 2021).

          Refining his notice argument, Frese takes issue with

section   644:11's   definition     of   "public"   to   include     "any

professional or social group," which Frese claims does not consider

                                - 16 -
"how small the group or how peculiar its views."                        Frese argues

that       the    statute     cannot    provide       adequate       notice    because

"[d]ifferent        professional       and   social    groups    will    often    have

different, sometimes conflicting, standards for what constitutes

defamation."         The statute, Frese argues, "incorporates each of

these"      potentially      disparate       "standards     as   a    yardstick       for

criminal conviction," and as such, makes it difficult for any

person to determine what conduct the statute prohibits.7

                 We are not convinced.        First, the incorporation of the

common law provides safeguards against imposing criminal liability

for    speech      that    offends   the     views    of   particularly       niche    or

idiosyncratic groups, which in turn shields against any notice

problems.         As discussed previously, the common law objectivity

standard requires that "the defamatory meaning . . . [is] one that

could be ascribed to the words by persons of common and reasonable

understanding."           Boyle, 172 N.H. at 554.          And section 644:11(I)'s

knowledge requirement creates additional protection.8


       7Frese also asserts that "this is a constitutionally
significant departure from the common law," which imposes civil
liability for defamation only when a person's language "tend[s] to
lower the plaintiff 'in the esteem of any substantial and
respectable group, even though it may be quite a small minority.'"
Thomson, 

 (quoting Prosser on Torts § 111 (4th ed.
1971)).

       Citing United States v. Alvarez, 

 (2012)
       8

(Breyer, J., concurring in the judgment), Frese points out that a
mens rea requirement does not eliminate chilling concerns because
"a speaker might still be worried about being prosecuted for a
                                        - 17 -
          Moreover, in order for a statute to give fair notice, it

need not map out what is prohibited with "meticulous specificity."

Grayned, 

 (upholding statute that prohibited the

"making of any noise or diversion which disturbs or tends to

disturb the peace or good order of [a] school session or class

thereof").   It must only "delineate[] its reach in words of common

understanding."   

 at 112 (quoting Cameron v. Johnson, 

 (1968)).   Thus, while there is indeed some "breadth" and

"flexibility" inherent in the scope of the statute, 

 (quoting

Esteban v. Cent. Mo. State Coll., 

, 1088 (8th Cir.

1969) (Blackmun, J.)), none of Frese's arguments persuade us that

a person of average intelligence would have to "to guess" at

section 644:11's meaning or the scope of the conduct it prohibits,

Councilman, 

.




careless false statement, even if he does not have the intent
required to render him liable."       Alvarez did not involve a
vagueness challenge, but there is some force to the point. Even
if, however, the mens rea requirement standing alone might be
insufficient to provide constitutionally adequate notice, it
nevertheless does assist in ameliorating notice concerns here.
     Similarly, citing Smith, 

, and Ashton, 

, Frese argues that a mens rea requirement cannot cure
an inherently vague statute. Again, while this may be true, our
analysis does not rely solely on section 644:11's mens rea
component, and we have no trouble finding that the knowledge
requirement -- considered in combination with the other factors
discussed -- helps to limit vagueness concerns. See United States
v. Nieves-Castano, 

 (1st Cir. 2007) (explaining
that the statute's "scienter requirement ameliorates any vagueness
concerns" (citing Hill, 

)).
                              - 18 -
          3.   "Hybrid" Vagueness Claim

          Having   addressed   Frese's   facial   claims,   we   return

briefly to what he characterizes as his "hybrid" vagueness claim.

Frese asserts that section 644:11 "is unconstitutionally vague,

both on its face and as applied in the context of New Hampshire's

system for prosecuting [c]lass B misdemeanors."     (Emphasis added).

Frese characterizes this second claim as a "hybrid vagueness

claim": "it is 'facial' in the sense that it is not limited to

Frese's particular case, but it is 'as applied' in the sense that

it does not seek to strike [section 644:11] outside the context of

New Hampshire's particular misdemeanor process."        The district

court dismissed Frese's "hybrid" claim for the same reasons that

it dismissed his facial claim.

          As we discussed above, the New Hampshire statute is not

unconstitutionally vague, because it gives meaningful enforcement

guidelines and adequate notice.   Nor does consideration of the New

Hampshire prosecution context alter that conclusion -- regardless

of the enforcement setting, the statute is not standardless and

provides adequate guidelines for enforcement.      See supra note 5.

His hybrid claim therefore falls with his facial claim.

                                 III.

          Assuming Frese's 2018 prosecution to have been brought

without reasonable cause to believe that Frese knew that his speech

had been false, then it was certainly wrongful, as implied by its

                               - 19 -
dismissal.   But that wrong had little, if anything, to do with

what Frese claims is the statute's vagueness.   Certainly "knowing"

an assertion to be false is not a vague element.      Nor, for the

foregoing reasons, do we think that a reasonable person has much

difficulty in ascertaining whether speech subjects a living person

to public hatred, contempt, or ridicule and what a "professional

or social group" is in this context.     Accordingly, the district

court's judgment is affirmed.




                  -Concurring Opinion Follows-




                                - 20 -
               THOMPSON, Circuit Judge, concurring.                  I agree with my

colleagues that the precedent by which we are bound, see Garrison

v. Louisiana, 

 (1964),9 and the procedural

posture in which this appeal arises oblige us to reach the above-

reasoned conclusions.              I take this opportunity, however, to shine

a light on sweeping concerns and important questions this case

showcases, but upon which its resolution does not now depend. Each

of these concerns and questions, as I'll explain, stem from this

overarching query:           Can the continued existence of speech-chilling

criminal defamation laws be reconciled with the democratic ideals

of the First Amendment?

               Ours     is   a    country    that    touts    a   "profound   national

commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open."                     New York Times         Co. v.

Sullivan, 

 (1964).                  That commitment may well be

profound; but it is not the whole story.                     And lately, one needn't

look far for examples of speech curtailed or, by contrast, speech

that       seems   to   be       wholly   divorced    from     the   truth    but   goes

unaddressed by the law.             When, as has been the case in this country

of late, the truth often seems up for grabs and objectively

accurate facts are tossed aside in favor of alternative versions

that suit a given narrative, drawing the line between truths and



       As my colleagues observe, and as Frese concedes, only the
       9

Supreme Court can overrule this precedent.
                                            - 21 -
lies -- and malicious lies at that -- is exceptionally tricky.

But also exceptionally important.   And yet, increasingly, whether

and where that line should be drawn as to some speech or other

speech seems to depend on who's holding the pen.   The significance

of all this skyrockets when criminalizing this speech is on the

table.

          It's at the intersection of history, present day, fact,

and fiction (and everything in between) that today's case arises.

          As we know, this is a case about New Hampshire's criminal

defamation statute, which explains that "[a] person is guilty of

a class B misdemeanor if he purposely communicates to any person,

orally or in writing, any information which he knows to be false

and knows will tend to expose any other living person to public

hatred, contempt or ridicule."   N.H. Rev. Stat. § 644:11(I).

          The   troubling   seditious-criminal-libel    historical

context that underpins a law like this one is well known to First

Amendment scholars, advocates, and jurists -- and perhaps most

deeply felt by those who've had brushes with it.     See Garrison,

; 

 (Black, J., concurring); 

 (Douglas, J., concurring); New York Times Co., 

 (Black, J., concurring); Beauharnais v. Illinois, 

 (1952) (Jackson, J., dissenting); Abrams v. United States,

 (1919) (Holmes, J., dissenting) (joined by



                              - 22 -
Brandeis, J.).10         I will not explicate the ins and outs of that

history here -- and there is a great deal of important history to

digest.      For today's purposes, it suffices to say these laws have

their genesis in undemocratic systems that criminalized any speech

criticizing public officials.            True, that is not today's American

system per se.       But like it or not, that is where our system's

roots lie, and even in view of the rightly heightened standards we

deploy when reviewing laws that restrict speech, see Nat'l Org.

for Marriage v. McKee, 

 (1st Cir. 2011), abrogated

on other grounds by Ams. for Prosperity Found. v. Bonta, 

 (2021), it is remarkable that we are still confronting

laws criminalizing speech at all.

             Perhaps the persistence of these laws owes to society-

at-large's unawareness of or ambivalence to them.                 It's possible

many believe criminal defamation is basically off the books;

Garrison can be read to have been aimed at accomplishing as much,

at   least    from   a    federal      standpoint,    in   that   it    nixed   as

unconstitutional         civil   and    criminal     penalties    for    truthful

statements about public officials, leaving room to sanction only

those statements made with actual malice (knowledge of falsity or

reckless disregard for the truth).                 See 

.          But




       I urge the curious reader to consult these important cases
      10

and the sources upon which they rely.
                                       - 23 -
persist     they    do,    with   many    states       retaining    their   criminal

defamation laws.11

             And indeed, this is remarkable.               Particularly so given

the current political climate in this country, with "truth" at a

premium.    It seems to me that if these laws were robustly enforced,

dockets     in     these   states   would         be   positively    teeming   with

prosecutions.        That's not what happens.             Why is that?      Probably

because there is no readily discernible boundary between what

gossip or loose talk amounts to being criminal and that which does

not.    Instead, the boundary emerges case by case, lying solely in

the eye of the charge-bringing beholder -- or the ego of the person

offended or called out by the speech.                     And this is troubling

because it underscores the simple truth that a criminal defamation

law can be wielded, weaponized by a person who disagrees with

whatever speech has been uttered.12




       See, e.g., 

--4809 (2021); Kan. Stat.
       11

Ann. § 21-6103 (2021); 

 (2021);

 (2021); 

(2021); 

, 15-168 (2020); 

 (2021); 

-
774, 776-778 (2021); Utah Code Ann.§ 76-9-404 (2021); 

 (2021); 

 (2021).

       I am mindful that not all criminal defamation prosecutions
       12

will be successful, and yes, as my colleagues note, supra note 1,
malicious prosecution might in some instances exist as a means to
pursue recourse for wrongful prosecution. But the fact remains
that a great deal of damage could have already been done to the
person targeted by an unsuccessful (or worse, malicious)
prosecution, particularly depending on what exactly was said and
                                         - 24 -
              To those who might disagree, it strikes me as out of

touch with reality to suggest these laws are not being selectively

harnessed or that these laws aren't particularly susceptible to

such use and abuse.              See, e.g., Garrison, 

(Douglas, J., concurring) (warning of the dangers posed by criminal

defamation      laws     and    those   laws    acting     as   "instrument[s]    of

destruction" for free expression); Gottschalk v. State, 

 (Alaska 1978) ("It has become clear that the real interest

being      protected     by    criminal      defamation    statutes    is   personal

reputation.      Whether that purpose justifies use of the criminal

law has been questioned."). And by virtue of their very existence,

criminal defamation laws deter and chill speech -- indeed, their

existence represents a looming threat of criminal prosecution,

which of course will cause many to think twice before speaking

out.       This is all the more so when, as in New Hampshire, a plea

deal or successful criminal defamation prosecution would show up

on     a    background        check   (and     remember,    criminal    defamation

defendants have no right to trial by jury and don't get court-

appointed counsel).             But "[f]ining [people] or sending them to

jail for criticizing public officials not only jeopardizes the

free, open public discussion which our Constitution guarantees,




done in the course of that prosecution -- that bell, as they say,
cannot be unrung.
                                        - 25 -
but can wholly stifle it."         Garrison, 

 (Black, J.,

concurring).

           It   is   not    lost   on   me   that    proponents    of   criminal

defamation laws see utility in having them as an alternative to

civil suits to be deployed when, for example, an alleged defamer

might be what we refer to as "judgment-proof," i.e., even if a

favorable verdict resulted from a civil defamation suit, the

defamer wouldn't have the cash available to cover any damages that

were assessed.      This assumes money damages are the best relief for

a victim of defamation, and I cannot abide that premise.                 Does it

not also invite criminal prosecution of people with less means?

And critically, having a criminal defamation route enables an end-

run around the important constitutional restrictions imposed in

civil defamation cases.       And I haven't spied any requirement that,

to bring a criminal prosecution, one must demonstrate the criminal

charge is being pursued because a civil suit just wouldn't cut it

for some legitimate reason or another.          This brings me back to the

reality that criminal defamation laws are all too easily wielded

as a silencing threat of punishment for speech.

           By my lights, criminal defamation laws -- even the ones

that require knowledge of the falsity of the speech -- simply

cannot be reconciled with our democratic ideals of robust debate

and   uninhibited    free   speech.      See   

   (Black,   J.,

concurring) ("[T]he Court is mistaken if it thinks that requiring

                                    - 26 -
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.").13   And so I echo the concern voiced by

Justice Douglas in Garrison, a concern as valid today as it was

nearly sixty years ago:   "It is disquieting to know that one of

[seditious libel's] instruments of destruction is abroad in the

land today."   

 (Douglas, J., concurring).




     13Without touching on criminal defamation laws specifically,
the Court in United States v. Alvarez, striking down part of the
Stolen Valor Act, generally pointed to sweeping dangers posed by
criminal restrictions on speech regarding matters of public
concern. See 

 (2012) ("Permitting the government
to decree this speech to be a criminal offense, whether shouted
from the rooftops or made in a barely audible whisper, would
endorse government authority to compile a list of subjects about
which false statements are punishable. That governmental power
has no clear limiting principle.     Our constitutional tradition
stands against the idea that we need Oceania's Ministry of
Truth."); 

 (Breyer, J., concurring) (joined by Kagan,
J.) (". . . [T]here remains a risk of chilling that is not
completely eliminated by mens rea requirements; a speaker might
still be worried about being prosecuted for a careless false
statement, even if he does not have the intent required to render
him liable. And so the prohibition may be applied where it should
not be applied, for example, to bar stool braggadocio or, in the
political arena, subtly but selectively to speakers that the
Government does not like.").
                                - 27 -