united-states first-amendment journalism
Daily Caller, Bob Menendez-possible prosecution of online news provider?
<p>Hypothetically, suppose it were possible to prove that the Daily Caller paid women in the Dominican Republic to make up stories about Senator Menendez patronizing underage prostitutes. Could the Daily Caller be prosecuted for this under U.S. law?
I'm wondering if the fact that the crime would have been at least partially on foreign soil, along with First Amendment protection, would make prosecution impossible.</p>

<p>Libel and slander provides for civil remedies, not criminal remedies, and are not a natural right.</p>

<p>The paying of others to slander and lie may run afoul of US laws. The <a href="https://en.m.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act" rel="nofollow noreferrer">RICO Act</a> comes to mind.</p>

<p>US jurisdiction extends overseas, for US citizens.</p>

<p>While neither international jurisdictional issues nor the First Amendment would invalidate a U.S. law criminalizing this conduct, it isn't entirely clear if there is a criminal statute in existence which would make this conduct illegal.</p>

<blockquote>
  <p>Hypothetically, suppose it were possible to prove that the Daily
  Caller paid women in the Dominican Republic to make up stories about
  Senator Menendez patronizing underage prostitutes. Could the Daily
  Caller be prosecuted for this under U.S. law? I'm wondering if the
  fact that the crime would have been at least partially on foreign
  soil, along with First Amendment protection, would make prosecution
  impossible.</p>
</blockquote>

<p>The Daily Caller could be prosecuted for U.S. crimes, if any, under U.S. law, even though the acts were carried out in the Dominican Republic, in part. This is both because the Daily Caller is a U.S. person, and because of the general rule that jurisdiction to prosecute a crime exists both where the crime is committed and where the crime has an intended effect. So, when a U.S. person commits a crime outside the U.S. with an intended effect inside the U.S., the U.S. courts can prosecute the crime.</p>

<p>Also, if the Daily Caller published the statements of the bribed Domincan women, the publication itself could be an offense committed in the U.S.</p>

<p>The harder question is whether the alleged conduct would constitute a crime under U.S. law.</p>

<p>The U.S. Constitution allows states to enact criminal defamation statutes which punish intentionally and knowingly false statements made with an intent to harm even public figures. And, soliciting someone to commit a crime (for payment or otherwise) is generally also a crime.</p>

<p>But, neither the United States government, nor most states, actually have criminal defamation statutes. In particular, I am not aware of such a statute in New Jersey, the Senator's home state, and I would be surprised if a prosecutor in a state other than New Jersey that had a criminal defamation statute, would bring charges in this case even if that prosecutor might technically have a right to do so.</p>

<p><a href="http://kellywarnerlaw.com/criminal-defamation-in-the-united-states-a-2015-update/" rel="nofollow noreferrer">As of 2015</a>, the only states of which I am aware, that continued to keep criminal defamation laws on the books were Florida, Idaho, Kansas, Louisiana, Michigan, Montana, New Hampshire, and North Carolina.</p>

<p>It is also possible that the Daily Caller's expenditure would constitute an independent campaign expenditure directed at a candidate for federal office that, if not made in compliance with federal law, would constitute a criminal violation of federal campaign finance laws.</p>

<p>But, there is no general statute at the federal level that criminalizes making a false statement about a candidate for political office with an intent to prevent that person from winning a political office. Some states, however, do have such laws which while not constituting general criminal defamation statutes, might apply in this case.</p>

<p>Senator Menendez would also have a very solid basis for a civil lawsuit against the Daily Caller for defamation in this case, under the law of almost every state, assuming that it was not barred by a statute of limitations.</p>
