Lawyers seek to have defamation law overturned

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A state appeals court has been asked to declare Louisiana’s criminal defamation statute unconstitutional, in papers filed by attorneys for a Houma couple whose laptops and cell phones were seized as part of an investigation that the law in question was violated on a self-styled watchdog website.

The 97-page petition to the First Circuit Court of Appeal in Baton Rouge alleges that State District Court Judge Randy Bethancourt erred when he refused to invalidate a warrant he signed, which authorized that Wayne and Jennifer Anderson’s home be searched and their devices seized by Terrebonne Parish deputies. The warrant was sought pursuant to a complaint by Houma insurance broker Randy Alford that the anonymous, self-styled watchdog website Exposedat defamed him criminally. The site and a related Facebook page under the pseudonym John Turner contain suggestions that Alford’s contract with Terrebonne Parish Sheriff Jerry Larpenter’s office is improper because he employs Larpenter’s wife, Priscilla. The site also suggests unholy dealings between Alford and Parish President Gordon Dove, and conflicts involving Dove and District Attorney Joe Waitz Jr.

Neither of the Andersons has been charged with a crime, and no suspects have been named. Larpenter said the seizure was a routine element of the investigation, and has denied allegations and suggestions that the investigation was a result of personal pique. If the computers are searched, it is possible that the identity of those responsible for the website and the true identity of “John Turner,” directly or indirectly, could be revealed.

Larpenter has recused his office from further participation in the investigation as has Waitz; It is now being handled by Louisiana Attorney General Jeff Landry.

In addition to seeking a declaration that the Louisiana defamation statute is unconstitutional in that it violates the right of free speech, the written arguments by the Andersons’ lawyer, Jerri Smitko, seek in the alternative that a new safeguard be put in place before warrants relevant to alleged violation of the law can be issued.

“The Louisiana Supreme Court is abundantly, unmistakably clear that the Louisiana criminal defamation statute – the basis for the search warrant in the instant case – is unconstitutionally null as it would apply to punish public expression and publication concerning public officials, public figures and private individuals who are engaged in public affairs,” the filing states, relying on a 1972 decision based on a Rapides Parish case, State v. Snyder. In that case the high state court recognized that the state statute conflicts with the principles of two landmark U.S. Supreme Court decisions, making it unconstitutional in regard to speech that involves public officials or individuals engaged in matters of concern to the public.

The legal filing states that Bethancourt should have known this. Although during a hearing the judge said he did not know that Alford – as president of the Terrebonne Parish Levee and Conservation Board – is a public official, the matter at hand was a matter of public interest, the purchase of insurance by the parish and by the Sheriff’s Office.

The papers filed Friday identify a legal curiosity in the Snyder case, which Smitko suggests apply regarding the warrant. Because key elements of the defamation statute are unconstitutional, its provision that provides an exception in cases where the words written are false is also null, pending correction at some point by the legislature.

In any event, Smitko’s argument affirms that “the spending of taxpayer dollars is a matter of public concern, and speech regarding such concerns is protected.”

Taking the argument a step further, the court papers allege, one of three basic principles that must be established for a warrant to be issued – that a crime has been committed – cannot apply, because engaging in protected speech is not a crime.

In support of her arguments, Smitko notes that the bar for prosecuting criminal defamation is lower than that for a civil action, an inequity allegedly incongruous with principles of justice.

Essentially, the papers presented to the First Circuit would suggest that even if the police officers were acting in the best of faith, the judge had a responsibility to look further, and deny the warrant that was requested.

The intrusion into the home of the Andersons and the seizing of their devices, the court papers state, violates the Fourth Amendment to the U.S. Constitution, which outlaws searches and seizures without probable cause.

Reaching further, Smitko requests that the court consider requiring a hearing within 48 hours of such a seizure, to address the specific question of whether the speech involved with an alleged defamation is protected. Such a hearing – called an Eros test after the case from which the practice arose – is required in cases involving alleged violation of obscenity laws, to ensure that First Amendment rights are not violated.

In conclusion, Smitko stated that “the unconstitutional reach of the statute cannot be justified on the grounds that the state will wisely use its discretion in choosing whom to investigate and prosecute,” echoing a Supreme Court decision written by Chief Justice John Roberts in another First Amendment case, U.S. vs. Stevens.

“The First Amendment protects against the government,” Roberts wrote. “It does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.”

A date for hearing on the matter has not yet been set, but Smitko requested that the Court of Appeal immediately continue the stay that Bethancourt already has in place on further execution of the warrant, and set a hearing on an expedited basis.

Attorney Jerri Smitko represents Jennifer and Wayne Anderson, whose computers and cell phones were seized by deputies.