## Facts

- David William Powell, a teacher at a public university, publicly disseminated accusations about the performance of the university’s acting vice-president for academic affairs.
- The statements concerned administration and governance at a public university.
- Powell was convicted of criminal libel in magistrate court under NMSA 1978, § 30-11-1.
- Powell appealed to district court for a trial de novo and moved to dismiss, arguing the statute was unconstitutional on its face and as applied.
- The district court dismissed the complaint, ruling the statute unconstitutional on its face and unconstitutional as applied to libel of public officials or public figures, and finding the alleged libel concerned a public figure.
- The State appealed the dismissal to the New Mexico Court of Appeals.

## Issues

1. Whether the criminal libel statute is unconstitutional as applied to a public statement involving a matter of public concern when it does not require proof of “actual malice” as defined in First Amendment defamation doctrine.
2. Whether the appellate court needed to decide the statute’s facial validity or whether the alleged victim was a public official or public figure to resolve the appeal.

## Decision

- The Court of Appeals affirmed dismissal on narrower grounds than the district court.
- The court held the criminal libel statute unconstitutional insofar as it applies to public statements involving matters of public concern.
- The court concluded Powell’s statements involved a matter of public concern.
- The court declined to decide whether the statute is unconstitutional on its face.
- The court declined to decide whether the alleged victim was a public official or public figure.

## Legal Principles

- When criminal defamation is applied to speech on a matter of public concern, the First Amendment requires at least the level of fault demanded by New York Times Co. v. Sullivan for protected public debate: “actual malice” (knowledge of falsity or reckless disregard for truth).
- A criminal libel statute that permits conviction for public-concern speech based on broad concepts such as “malicious” intent or lack of “good motives and justifiable ends,” without an actual-malice requirement, is unconstitutional as applied to that category of speech.
- An appellate court may affirm a dismissal on a legal ground different from the one relied on below when the record supports the alternative basis.

## Conclusion

The dismissal was affirmed because the criminal libel statute could not constitutionally be applied to Powell’s public statements about public-institution administration, where the statute allowed punishment of public-concern speech without requiring proof of actual malice.


State v. Powell, 839 P.2d 139 (N.M. Ct. App. 1992)