Bill Description: House Bill 306 would replace the current misdemeanor of libel with the felony of "criminal libel," which includes excessive penalties.

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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for non-violent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

Chapter 48, Title 18, Idaho Code, defines the crime of libel, which carries a penalty of a fine up to $5,000 or up to 6 months in jail. The law defines "libel" as "a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects, of one who is alive, and thereby to expose him to public hatred, contempt or ridicule."

House Bill 306 would repeal this chapter and replace it with one that creates the felony of "criminal libel," saying, "A person who, with actual malice, publishes a false statement about another person shall be guilty of criminal libel."

It would broadly define "publish" as "to communicate to a person or persons." It would define "with actual malice" as "with knowledge that a statement is false or with reckless disregard as to whether or not a statement is false."

Defining malice as simply having knowledge of something and not requiring proof of ill intent is inconsistent with how the word is normally used. Merriam-Webster defines "malice" as a "desire to cause pain, injury, or distress to another" or "intent to commit an unlawful act or cause harm without legal justification or excuse."

Despite being a felony, "criminal libel" is defined far more broadly than "libel," requiring only that a person knowingly "communicate to a person or persons" "a false statement" about another person. 

The penalty for criminal libel would be a fine of up to $100,000 and/or up to 5 years in prison. 

Under this bill, posting an inaccurate statement about someone on social media could carry a more severe penalty than many violent crimes, and there is no requirement that the inaccurate statement inflict any articulable harm. This is unlike the existing crime of libel, which requires "malicious defamation" that could "blacken the memory of one who is dead"; "impeach the honesty, integrity, virtue or reputation" of someone; or expose someone to "public hatred, contempt or ridicule."

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Does it violate the principle of equal protection under the law? Examples include laws that discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

House Bill 306 would say that the felony of "criminal libel" should be prosecuted by the relevant county prosecutor, with a specific exception. 

If the alleged victim of the criminal libel is a government employee or elected official, the crime would be prosecuted by the attorney general. 

This is an unequal application of the law intended to provide greater prosecutorial resources (and political muscle) to alleged crimes against a favored class. 

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Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?

There are significant constitutional concerns with the broad definitions, excessive penalties, and unequal enforcement provisions contained in House Bill 306.

Taken together, these elements will create a chilling effect on free speech, particularly speech regarding government employees and elected officials. Many statements are not objectively true or false, and this law would stifle communication containing claims or suggestions that someone could allege to be false.

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