Thanks to criminal defense lawyer John Arechigo, Minnesota’s criminal defamation laws may soon have a new look.
Arechigo set the wheels in motion when a case he picked up made him study the state statute on criminal defamation. A few years later, another client of Arechigo and his partner Joshua Stokka was convicted at trial of two counts of criminal defamation in Isanti County District Court after admitting that he had posted the phone numbers and names of his ex-girlfriend and her 17-year-old daughter in sexually explicit advertisements on Craigslist.
Arechigo appealed his client’s guilty verdict, but primarily because he wanted to fight the criminal defamation statute that was drafted in the 1890s and last revised in 1963, before the landmark U.S. Supreme Court libel case New York Times vs. Sullivan set a defamation standard that’s still widely used — and long before some of the most commonly used media for defamation even existed. For instance, the law is commonly used to prosecute “revenge porn” cases where jilted ex-lovers post intimate material online to shame their former partners, similar to what Arechigo’s client was alleged to have done.
The law was missing some essential free-speech protections, and didn’t define truth as an absolute defense — meaning it could be used to punish true speech. It also contained no provision protecting personal opinion or comment on public officials, and didn’t require actual malice.
“We stumbled on the statute in early 2012,” recalled Arechigo. “It was apparent to us that it was overbroad and punished any and all speech. If the subject of whatever was said had any problem with it, in theory, the speaker could be charged and punished.”
Because the statute was so seldom invoked, it had seldom been challenged, until Arechigo and Stokka came along.
Arguing before the state Court of Appeals, Arechigo had help from UCLA law professor and free-speech law expert Eugene Volokh, who wrote an amicus brief.
Last May, the court overturned the conviction of Arechigo’s client, striking down the 52-year-old law — even while labeling the appellant’s behavior as reprehensible. A three-judge panel said the law had the potential to criminalize true statements, which are protected under the First Amendment right to free speech. The court also said that the law made the standard for conviction in a criminal-law case less stringent than the threshold for winning a civil case.
After the verdict, Arechigo was asked to join a working group headed by Rep. John Lesch that aims to find constitutional legal protections for victims of revenge porn.
“There’s some talk about revisiting criminal defamation statute and maybe rewriting it,” said Arechigo. “The main objective is to find the right way to punish the distribution of this intimate media online.”