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Thursday, November 03, 2005

Decriminalizing Free Speech

By Scott McCoy
Utah State Senator, District 2
Freedom of speech is not only the hallmark of a free people, but is, indeed, an essential attribute of the sovereignty of citizenship.
Cox v. Hatch, Utah Supreme Court, 1988.
A profound sentiment, but did you know that in Utah you can go to jail for exercising your right of free speech? It's true. Utah is one of a minority of states -- fourteen to be exact -- that maintains on its books a law that criminalizes speech. In fact, Utah has two such laws: the criminal libel statute and the criminal defamation statute.

The criminal libel statute was enacted in 1876, well over a hundred years ago. It existed in relative obscurity until 2000 when a Beaver County prosecutor used the statute to prosecute a high school student who published his less-than-flattering opinions about his principal, counselors, and teachers on the internet.

The case sparked by this prosecution made its way to Utah's Supreme Court. They struck it down. Following two precedents from the United States Supreme Court, Utah’s highest court found the statute to be unconstitutional under the First Amendment's guarantee of free speech. Despite this ruling, the now-unenforceable criminal libel statute remains on the books. As a matter of course, it is the Utah Legislature's responsibility to remove from the Utah Code dead wood provisions that have been ruled or rendered unconstitutional by the courts.

The criminal defamation statute was enacted in 1973 and remains in effect. This statute has not been before the Utah Supreme Court, so it remains an open question whether it passes constitutional muster.

I would submit that both of these statutes should be taken out of the Utah Code. Criminal libel laws are archaic. They are relics of a time long gone. Studies have shown that criminal libel prosecutions are very rare, but when they do occur they are generally used as weapons against political enemies. They are used as tools to mute or stifle unpopular sentiments and minority viewpoints. In other words, we tend to use statutes like these very selectively to go after people we don’t like.

I am not suggesting that redress for libelous speech should be totally foreclosed. Instead, our fights over libel and slander should be settled in civil courts through civil actions, not criminal prosecutions.

I have introduced a bill to repeal the criminal libel statute, and am exploring the possibility of repealing the criminal defamation statute as well.

I would appreciate thoughtful feedback.


Anonymous Anonymous said...


You are to be commended for initiating this sort of spring cleaning, given the fact that this kind of work scores no political points.

"Spring cleaning" is appropriate in this case, because your presence in the Senate along with cleaning up obsolete statute, is symbolic of our hope that Utah continues to emerge from the long deep slumber, and moves with grace into the 21 century.

McCoy for Mayor! - Cliff

11/17/2005 9:50 AM  
Blogger Kevin said...

Cleaning unconstitutional laws off the books is a good service. It is much better service than putting questionable laws on the books.

Anyway, Thanks!

PS: Let me know when you criminal libelity laws off the books....then I will say what I really think!!!!! ;)

1/29/2006 12:18 PM  

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