EXETER — A local man, who was criminally charged for posting an online comment stating Exeter's former police chief "covered up for a dirty cop," has lost his appeal to overturn New Hampshire's criminal defamation law.

Robert Frese, of Exeter, sued the state's attorney general in 2018 claiming the state's criminal libel law was not constitutional because it violates his First and Fourteenth amendment rights. A three-judge panel at the U.S. Court of Appeals for the First Circuit issued a ruling Tuesday, rejecting Frese's claims by upholding the state law and affirming a prior judge's decision to dismiss the case.

“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,” U.S. Circuit JudgeJeffrey Howard wrote on behalf of the panel.

Frese was represented in court by attorneys from the American Civil Liberties Union of New Hampshire, who took on the case to challenge the law.

Gilles Bissonnette, legal director at the ACLU-NH, disagreed with the decision.

"We’re disappointed that the First Circuit failed to recognize the vagueness that permeates this statute and authorizes sweeping discretion for law enforcement to arrest and prosecute their critics," Bissonnette said.

What led to the lawsuit challenging NH's defamation law?

Frese was arrested in May 2018 and charged with criminal defamation of character after posting online comments on a Seacoastonline story about a retiring Exeter police officer. Frese wrote, without offering evidence, that the officer was "the dirtiest, most corrupt cop I had ever had the displeasure of knowing," and that “Chief Shupe covered up for a dirty cop.” He was referring to William Shupe, who retired as chief the next year.

The misdemeanor criminal defamation charge, which is rarely prosecuted in the state, was eventually dropped by Exeter police after the attorney general intervened in the case. The attorney general issued an opinion that the department didn't have probable cause to arrest Frese because there was no evidence he knew his statements were false.

Frese had prior run-ins with police, including several arrests, and stated he believed what he said.

He filed the civil suit challenging the law because he feared that he would be arrested again for speaking his mind in the future. He was previously convicted of criminal defamation in 2012 when he accused a life coach in Hudson of distributing heroin among other things on the website Craigslist.

AG defends law, ACLU says it's unconstitutional

Attorneys for ACLU-NH argued the law was unconstitutionally vague and violates the First Amendment because it "criminalizes defamatory speech."

While the Supreme Court has upheld that false speech made with "actual malice" is a crime under the Garrison v. Louisiana case in 1964, the ACLU-NH argued "the time has come to revisit that decision."

"But, as Frese acknowledges, we do not have the power to revisit Supreme Court decisions," Howard stated in the decision.

The court also rejected Frese's claims the law is vague because different persons may have "different standards for determining what is and is not defamatory" and that it's discriminatorily enforced. Under New Hampshire’s criminal defamation statute, “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.” A person found guilty of the charge faces a fine of up to $1,200.

The court found the statute "clearly defines and delimits its scope" and "provides adequate guidelines for enforcement.”

Frese believed the criminal defamation charge was brought forward by Exeter police to send him to jail. At the time of his arrest in 2018, Frese was under good behavior conditions from a prior conviction after striking a construction flagger with his vehicle in Portsmouth.

"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 dismissal," stated Howard. "But the 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 …"

What's next in Frese's case?

Frese and ACLU-NH previously sued the town of Exeter for wrongful arrest and in 2019 settled for $17,500.

Bissonnette, legal director at the ACLU-NH, said they're still reviewing the U.S. Appeals Court decision and considering next steps.

He said ACLU-NH appreciates U.S. Circuit Judge O. Rogeriee Thompson's "opinion acknowledging that criminal defamation laws have always been incompatible with First Amendment freedoms."

In a concurring opinion, Thompson wrote the court was bound by the Supreme Court ruling. However, she questioned "Can the continued existence of speech-chilling criminal defamation laws be reconciled with the democratic ideals of the First Amendment?"

She specifically called out speech "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 lies — and malicious lies at that — is exceptionally tricky," she wrote. "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."

She goes on to say, "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."

This article originally appeared on Portsmouth Herald: Exeter man loses bid to upend NH's defamation law after 'dirty cop' post