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        On October 31, 2002, Defendant filed a Motion to Dismiss the criminal information in this matter. Plaintiff filed an Opposition to the Motion to Dismiss on November 12, 2002. A hearing was held on the Motion on November 12, 2002. At the hearing, the Court deferred ruling on the motion and ordered both parties to submit supplemental briefing on the Motion and Opposition. Both parties filed their Supplemental Briefs on December 12, 2002. Reply briefs were filed by both parties on January 6, 2003. The hearing on Defendant’s Motion to Dismiss was continued on February 19, 2003. Paliknoa Welly, Prosecutor, appeared for the State. Defendant was represented by Sean Lynch, Public Defender.

        The Defendant has been charged with one count of Defamation, in violation of Kosrae State Code, Section 13.313. Defendant is alleged to have uttered false statements to Emrick Oliver, which tend to impeach Oliver’s integrity or reputation. The statements relate to Oliver’s alleged conduct with respect to female members of the family. The statements were allegedly made in violation of Kosrae custom and tradition, which forbid discussion of these matters between male and female members of a family.

       Defendant argues that this prosecution for defamation violates her Constitutional right of freedom of expression and that public policy supports civil process for disposition of defamation claims. Plaintiff argues that the statements allegedly made by the Defendant are "fighting words" which are not protected by the Constitutional protection of freedom of expression. The supplemental briefing filed by the parties provides additional arguments. Plaintiff argues that Defendant’s alleged statements fall within tradition protected by law, and that Kosrae State Code, Section 13.313 is a law intended to protect tradition. Defendant argues that Section 13.313 is not a law enacted to protect tradition and that Section 13.313 is unconstitutionally vague since it does not clearly specify what types of speech is prohibited. Based upon the analysis below, the Court finds the Defendant’s arguments persuasive.

       First, a review of the FSM and Kosrae Constitutions is instructive. The FSM Constitution, the supreme law of our Nation, provides the Declaration of Rights in Article IV. Specifically, Article IV, Section 1 provides that "no law may deny or impair freedom of expression . . . ." Traditions are also protected under the FSM Constitution. Article V, Section 2 provides that "the traditions of the people of the FSM may be protected by statute. If challenged as violative of Article IV [Fundamental Rights], protection of Micronesian tradition shall be considered a compelling social purpose warranting such governmental action." Pursuant to the FSM Constitution, Article V, Section 2, Kosrae State may pass a law which protects traditions of the Kosraean people.

       The Kosrae State Constitution provides similar protection of tradition. The Kosrae State Constitution, Article II, which provides the fundamental right of freedom of expression, also permits denial or impairment of that fundamental right by a statute which protects tradition. Therefore, no law may deny or impair freedom of expression, except by a statute which protects tradition.

       Thus the analysis turns to whether Kosrae State Code, Section 13.313, Defamation, is a statute which protects tradition? If Section 13.313 is a statute which protects tradition, Section 13.313 may deny or impair the fundamental right of freedom of expression provided by the FSM and Kosrae State Constitutions. If however Section 13.313 is not a statute which protects tradition, then Section

13.313 may not impair the fundamental right of freedom of expression.

        Plaintiff argues that the words uttered by the Defendant violated Kosraean custom and tradition. Defendant does not dispute that. However, the merits of the defamatory nature of the Defendant’s alleged statements are not at issue in this hearing. The analysis does not turn on whether the alleged defamatory statements violate tradition. Instead, the analysis must focus on whether the subject law, Section 13.313, is a law which protects tradition. If Section 13.313 does not protect tradition, then the constitutional guarantee of the fundamental right of freedom of expression must prevail, and the Information must be dismissed.

       A review of Kosrae State Code, Section 13.313 is necessary. Section 13.313 provides as follows:

        The offense of "defamation" falls under Chapter 3 – Offenses Against the Person. The offense of "defamation" is not categorized under Chapter 5, which includes the Offenses Against Tradition. Other offenses which are categorized as Offenses against the Public Welfare and Tradition include drunk and disorderly conduct, bigamy, selling or consumption of alcoholic drink on Sundays and Christmas, and procuring fish on Sundays. By comparison, the offense of "Defamation" is not categorized as an Offense against Tradition. Instead, the offense of "Defamation" is categorized as an Offense against the Person, which category also includes the offenses of aggravated assault, assault and battery, several degrees of homicides, kidnapping, robbery and sexual assault. The offense of "Defamation," Section 13.313, when signed into law and codified at Kosrae State Code, Title 13, was enacted an Offense against the Person and not an Offense against Tradition.

       The language of Kosrae State Code, Section 13.313 is also very broad. The definition of the offense of "defamation" does not provide detailed warning of what type of speech is regulated. For example, the language of other Offenses against Tradition - selling or consumption of alcoholic drink on Sundays and Christmas – is detailed, and gives a person clear warning as to what type of conduct is being regulated. In other criminal offenses where speech is regulated, the specified words constituting the offense are listed. For example, in the offense of "Insulting a Police Officer," Kos. S.C. § 13.609, the definition states that certain words or the substantial equivalent of those words in any language, forms the offense. Thus under Section 13.609, a person has clear warning that use of the specified words constitutes a criminal offense.

       By comparison, the offense of defamation does not provide adequate notice of what speech is regulated. A statute, properly interpreted, must give sufficient notice so that conscientious citizens may avoid inadvertent violations. The statute must also provide sufficiently definite standards to prevent arbitrary law enforcement. Joker v. FSM, 2 FSM Intrm. 38 (App. 1985). When an information alleges violation of a statute, that statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct is forbidden. Laws must provide explicit standards for those who

apply them. FSM v. Moses, 9 FSM Intrm. 139 (Pon. 1999). In reviewing the offense of defamation, a person of ordinary intelligence would not have fair notice of what speech is forbidden under Section 13.313.

       The offense of "Defamation" does not contain specific language defining the conduct or speech which forms the offense. Under Section 13.313, defamation is defined as "any false statement, which tends to impeach the reputation of a person, educational, literary, social, fraternal, benevolent or religious corporation, association or organization." There are no specific words or conduct listed in the offense which forms the basis for the defamatory conduct.

       The definition of defamation also goes far beyond the protection of individuals. For example, the Section 13.313 protects literary and fraternal organizations. This Court is not aware of any literary or fraternal organizations on Kosrae. The parties agree that tradition to be protected in this case, punishing certain speech, would be directed only at individuals. However, the offense of defamation applies to statements made regarding other entities and organizations, even some types of organizations which have never existed and do not currently exist on Kosrae.

        Based upon all these factors, I conclude that the offense of defamation was not enacted to protect tradition. Accordingly, if the offense of defamation does not protect tradition, then the fundamental right of freedom of expression as guaranteed by the Kosrae State Constitution may not be impaired or denied.

        This Court does not condone or approve of the statements allegedly made by the Defendant. However, in this case, the FSM and Kosrae Constitutional guarantee of a person’s fundamental right of freedom of expression protects the Defendant from criminal prosecution for the offense of Defamation. Based upon the categorization of Kosrae State Code, Section 13.313 as an Offense Against the Person, and the broad language of Section 13.313, which expands its application beyond customary protection of an individual, I conclude that Kosrae State Code, Section 13.313 does not protect tradition. Therefore, the Defendant’s fundamental right of freedom of expression may not be impaired by Section 13.313. The defamation statute impairs the Defendant’s fundamental right of freedom of expression. The statute fails to provide a specific standard of criminal conduct, thereby the Defendant and other persons would not have adequate notice of what type of speech was regulated under Section 13.313.

       The complainant’s right to bring a civil suit against the Defendant for the tort of defamation is not impaired by this ruling.

       Accordingly, the Defendant’s Motion to Dismiss is granted and the Information filed in this case is dismissed with prejudice.

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