Washington Court of Appeals Strikes Down State's Criminal Libel Statute

In a published opinion released June 19, 2008, the Washington Court of Appeals held that Washington's criminal libel law violates the First Amendment. The Court struck down the statute in its entirety, finding it facially unconstitutional. The decision is the first published opinion in the state to address the issue.

The decision, Parmelee v. O'Neel, No. 35652-0-II (Wash. Ct. App. June 19, 2008), will effectively check any attempts by public figures to intimidate journalists and others through criminal libel threats in Washington state.

Criminal libel laws have been constitutionally suspect for at least 44 years. In 1964, the U.S. Supreme Court held that the First Amendment limited the reach of defamation law, and that statements about public officials could not be subject to criminal punishment absent a showing of "actual malice" (i.e., knowledge of the statement's falsity or in reckless disregard of whether it was false or true). But Washington's criminal libel law, which pre-dates statehood, has escaped judicial review until now.

The Court of Appeals decision in Parmelee arose after the Department of Corrections disciplined an inmate for sending a letter to state officials criticizing a prison superintendent. The discipline was based on a finding that the letter constituted a criminal misdemeanor—namely, violation of the libel statute, RCW 9.58.010. The inmate brought suit, claiming the disciplinary action violated his First Amendment rights and was based on an unconstitutional statute.

The Court of Appeals agreed. It found that the libel law facially violated the First Amendment and was overbroad and impermissibly vague. The statute's primary constitutional flaw, the court ruled, is that it permitted prosecution for both (1) truthful statements, if the statements were made without "good motives," and (2) false statements, even if made without "actual malice." The Court found that these features were plainly unconstitutional under the Supreme Court's decision in Garrison v. Louisiana, 379 U.S. 64 (1964).

While criminal libel prosecutions are rare (none has occurred in Washington since 1925), overly zealous officials occasionally use the existence of criminal libel laws to threaten journalists or retaliate against disfavored speech. The Parmelee decision makes clear that this is no longer an option in Washington.

Davis Wright Tremaine participated in the briefing and oral argument of the case, filing an amicus brief on behalf of the ACLU of Washington urging the Court of Appeals to find the statute unconstitutional.