A federal judge has ruled that an Exeter, New Hampshire man’s lawsuit challenging the constitutionality of the state’s criminal defamation statute can proceed, rejecting the Attorney General’s request to dismiss the suit.

The case centers on Bob Frese, who in 2018 commented on a local newspaper’s website that the Exeter Police are corrupt.

The police, in turn, arrested him, and charged him with criminal defamation, which makes it a misdemeanor to say or write something you know is false that will expose someone to public hatred or ridicule.

[You can read NHPR's previous coverage of this story here.]

Frese maintains that he believes the claims of corruption to be true, and therefore isn’t violating the law.

After the Department of Justice issued a memo siding with Frese, local prosecutors dropped the charge. The ACLU of New Hampshire, however, is using Frese’s case in an attempt to have the state’s entire criminal defamation statute thrown out.

“Law enforcement should not have the power to crack down on free speech, especially when that speech is critical of law enforcement. We look forward to further advancing these arguments in this case,” said Gilles Bissonnette, legal director for the ACLU of N.H., in a statement.

The Department of Justice argued that the statute is narrowly written and that the challenge should therefore be dismissed.

In a 25-page ruling released Friday, Judge Joseph Laplante rejected the state’s motion.

“Although some criminal defamation prosecutions may collapse on close scrutiny, as was the case with Frese in 2018, this fact does not negate the risk of an excessively discretionary scenario created by the statutory language challenged here,” wrote the judge.

Nearly half of the states have some form of criminal defamation statutes. Advocates of ending these laws argue that civil defamation, which can result in financial penalties, is a better avenue for settling disputes, since it eliminates the risk of law enforcement arresting its critics.