When I was a law student, I spent a great deal of time in the law library, especially during my first year. I would take breaks to eat and sleep and, every few hours, I would put down my textbooks for 10 minutes just to escape the tedium of the assigned cases. During these breaks I developed a hobby: searching through the statute books for laws that were old and outmoded but still good law. This became a bit of an obsession, and I became expert on these old and outmoded laws, so much so that when I became a law professor, I wrote a short article with a colleague on them and the problems they posed. In most countries, laws which have not been used for a certain period or which have become utterly inappropriate because of changed social and political circumstances automatically cease to have validity by a doctrine known as desuetude. But this doctrine does not exist in the United States. In this country, a law which is on the books stays on the books until removed by legislative action. This is usually more a source of amusement than trouble, but, occasionally, an outmoded law can become problematic. That has now happened in Kansas.

Kansas has a law in effect making certain kinds of statements criminal. Section 21-4004 of the Kansas Statutes Annotated defines criminal defamation as a communication by a person “knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt, or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.” This is a Class A nonperson misdemeanor. It is also an entirely inappropriate statute.

There can be no question that defamation can be a very damaging act and that those who are defamed ought to have some recourse in the courts. Most states provide a civil remedy for this; they permit a victim of defamation to sue the perpetrator for money damages. But the criminalization of defamation is rare and, in my opinion, and that of most legal scholars, ought to be nonexistent. There is a great difference between making an act subject to a civil lawsuit and damages and making it criminal. The punishment for a crime is very different from that for a tort. Criminal penalties are far worse than money damages because they involve a serious social stigma and result in the guilty party having a criminal record. Should someone be given a criminal record because of something he has said? I believe that this is very much against our American traditions of free speech and open politics.

The criminal defamation statute has been rarely used in Kansas, but, recently, it reared its head in Wyandotte County and, just a few days ago, was used again in Baxter Springs against a newspaper publisher, a newspaper columnist and a political candidate. This all happened within the context of a political campaign, precisely the place where we most want freedom of speech without any threat of criminal prosecution. While many of us might well wish to see political campaigns become a bit more civil and less vituperative, invoking the threat of criminal sanctions against those involved in a campaign is not the way to accomplish this. Instead, the chilling effect of such potential prosecution, is, in my opinion, likely to stifle open and free debate. And this would be a high price to pay for increased civility.

This past January a bill was introduced by Sen. Derek Schmidt, R-Independence, in the Kansas Legislature that was designed to repeal the Kansas criminal defamation statute. Schmidt deserves praise for introducing this bill. There was a hearing on the bill Jan. 21 but, since then, the bill has stalled in the Senate, lost amid the pressing state budget concerns. Certainly, the legislature needs to concentrate most of its time and efforts upon straightening out the state’s fiscal crisis. But it is also vitally important to revive this bill and get this bad law off the statute books once and for all. If we do not, it will continue to threaten our rights of free speech and endanger both the freedom of our elective process and the integrity of the news.

— Mike Hoeflich, a professor at Kansas University’s School of Law, writes a regular column for the Journal-World.