JFK was still alive, so New Orleans DA Jim Garrison had not yet had a chance to earn his global reputation as a crackpot.
He did, however, come across as a bit of a wildman when he called a news conference in 1962 to denounce the city’s criminal court judges as lazy, incompetent and corrupt after they refused him permission to dip into a fees and fines fund to pay for an investigation of what he called “Canal Street clip joints.”
Their decision raised “interesting questions about the racketeer influences on our eight vacation-minded judges,” Garrison allowed.
The judges complained to Attorney General Jack Gremillon, who charged Garrison under Louisiana’s criminal defamation statute. A judge was brought in from another parish for a nonjury trial in which Garrison was found guilty and given a $1,000 fine or four months in jail. His conviction and sentence were upheld by the state Supreme Court.
Garrison prevailed in 1964, however, at the U.S. Supreme Court, which ruled the state law violated his right to free speech. Garrison then turned his attention to the Kennedy assassination and the farcical prosecution of Clay Shaw, who was eventually acquitted after the briefest of jury deliberations.
The criminal defamation statute, which does not even allow truth as a defense if “actual malice” is present, has been found unconstitutional on various occasions in the intervening half-century, but it has never been repealed. In fact, the Baton Rouge Police Department recently threatened to file charges under it. “If it’s on the books,” department spokeswoman Sgt. Mary Ann Godawa said, “we’re going to enforce the law.”
If that happens, the DA will always refuse the charges. Public agencies frequently waste our money, but only at the police department is it official policy.
A couple of years ago, DA Scott Perrilloux cited the statute’s constitutional flaws in declining to prosecute Royce McLin in Livingston Parish. McLin’s computer was seized by the Sheriff’s Office after three members of the parish council complained about anonymous Facebook posts suggesting that one of them was gay, another an adulteress and a third a Klansman.
McLin filed suit claiming that the council members and the Sheriff’s Office violated his civil rights. In her ruling, federal Judge Shelly Dick a few months back noted there is no government interest in enforcing a statute that has been declared unconstitutional “as it applies to punishing public expression about public officials.”
The cases in which the defamation law was thrown out did indeed all involve denigration of public officials, whereas the purported victim in Baton Rouge was just a cop. Godawa, however, drew no such distinction, and media law expert and former LSU professor Craig Freeman says the statute is unconstitutional regardless.
Criminal defamation is an antiquated concept — even the British have abandoned it — and the civil law provides adequate remedies for libel and slander. It is inconceivable that prosecutors would haul anyone into court for badmouthing a fellow citizen, however zealously Baton Rouge cops try to enforce the statute.
They gave it a shot when some joker got hold of a selfie taken by a cop in a patrol car with another apparently asleep in the other seat. When the embarrassing photo was sent to the Mayor-President’s Office, an investigation ensued, district Judge Tony Marabella issued a search warrant and the culprit was identified. Police warned him in an email that he might have broken the defamation law, but presumably realized how ridiculous they would look if they hauled him off to the slammer for mailing a photo taken — evidently for a lark — by one of their own.
The defamation statute will presumably figure in a Louisiana Law Institute study ordered by the Legislature. The institute’s charge is to identify state laws that are unconstitutional — there will be plenty of candidates — and make recommendations about what legislators should do about them.
It is by no means clear why legislators ordered the review, because they will probably ignore the recommendations anyway. Nobody needed the institute to point out that our law criminalizing gay sex, for instance, was nullified by the U.S. Supreme Court in 2003, but an attempt to take it off the books got nowhere this year. Legislators evidently accepted the bizarre argument that repealing an unenforceable law would open the door to AIDS and child molesters.
Don’t say we sure have some stupid legislators, though. They’d probably have you arrested.
James Gill’s email address is firstname.lastname@example.org.