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Washington State’s Criminal Libel Statute Held Unconstitutional; Prisoner Disciplinary Conviction Vacated

Washington State’s Criminal Libel Statute Held Unconstitutional; Prisoner Disciplinary Conviction Vacated

by John E. Dannenberg

The Washington State Court of Appeal, Division 2, ruled that the state’s criminal libel statute was unconstitutional under U.S. Supreme Court precedent due to vagueness and for being overbroad. In so ruling, the appellate court vacated a state prisoner’s disciplinary conviction that had been obtained based upon the statute.

Allan Parmelee is a Washington Department of Corrections (WDOC) prisoner who has filed numerous civil rights actions against prison officials during his multiple incarcerations. Recently, when his comments towards them were tinged with vulgar language, WDOC retorted by giving him a disciplinary violation based upon a theory of criminal libel. However, because the appellate court found that Washington’s criminal libel statute was unconstitutional on its face, the disciplinary conviction was vacated.

The law on defamation was defined by the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964). The high court concluded that civil sanctions could not be imposed on defamatory statements against a public official unless those statements were both false and made with “actual malice.” The Court expressly wanted to protect debate on public issues, which necessarily must allow sometimes vehement, caustic and sharp attacks on public officials. The Court went on that year to decide the question of criminal libel, which it flatly declared facially unconstitutional in Garrison v. Louisiana, 379 U.S. 64 (1964), because Louisiana criminally punished false statements made against public officials without a showing of “actual malice.”

Although many states have since thrown out their criminal libel laws, Washington has not. In Parmelee’s challenge to state statutes RCW 9.58.010 and .020, the Court of Appeal found that Garrison controlled. Because the law “permits punishment of true statements not made with good motives or for justifiable ends, it does not survive constitutional scrutiny.”

The appellate court went on to decide whether Washington’s criminal libel statute was fatally overbroad or vague. The Washington Supreme Court had earlier held that “a law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities.” Here, because the challenged statute prohibited both true speech and false speech made without actual malice, it was unconstitutionally overbroad.

A statute is unconstitutionally vague “if persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application.” With respect to the challenged statutes, the Court of Appeal found them inherently vague because they “created a potential confusion between the common law ‘malice’ standard and the New York Times ‘actual malice’ standard.”

As to Parmelee’s complaint that the statutes were unconstitutionally applied to punish prisoners for statements made in grievances to prison officials, the appellate court held that where, as here, a statute is facially unconstitutional, “it follows that no set of circumstances exists in which the statute, as currently written, can be constitutionally applied.” Even though Parmelee did not raise the constitutionality issue in the trial court below, the appellate court was obliged to raise and decide the question sua sponte.

WDOC’s argument that Turner v. Safley, 482 U.S. 78 (1987) should control because Parmelee was challenging a prison regulation was rejected, since Parmelee had properly challenged the statute instead. When and if a prisoner is charged with violating a prison regulation prohibiting abusive language, then Turner would control.

The Court of Appeal further permitted Parmelee’s retaliation claim to survive, and remanded to the trial court for further proceedings. Parmelee’s request for attorney fees under 42 U.S.C. § 1988 was denied because he had not yet won a civil rights complaint. If he eventually succeeds on the retaliation claim, fees may then be appropriate. See: Parmelee v. O’Neel, 145 Wash.App. 223, 186 P.3d 1094 (Wash.App.Div. 2, 2008).

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Related legal case

Parmelee v. O’Neel