The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I noted in June, the prosecutor's office in Flathead County, Montana has been arguing that speech that exposes Jews—or other religious, racial, and other groups—"to hatred, contempt, ridicule, degradation, or disgrace" is criminally punishable, unless it consists of true factual statements. As the Montana criminal defamation statute is worded, this means that hatred-inducing opinions are criminally punishable, too. This was that extraordinarily rare thing: an American prosecution for "hate speech."
I'm pleased to say that yesterday a Montana trial court held that the Montana criminal defamation statute is facially unconstitutional, and thus dismissed the group libel charge (State v. Lenio). The Montana statute provides:
(1) Defamatory matter is anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's or its business or occupation.
(2) Whoever, with knowledge of its defamatory character, … communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation ….
(3) Violation of subsection (2) is justified if:
(a) the defamatory matter is true;
(b) the communication is absolutely privileged;
(c) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern;
(d) the communication consists of a fair and true report or a fair summary of any judicial, legislative, or other public or official proceedings; or
(e) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with the purpose to further the interest or duty.
Sections 1 and 2 thus cover any statements that expose people to hatred, contempt, ridicule, degradation, or disgrace—whether true statements, false statements, or opinions. Section 3(a) exempts true statements, so the statute covers reputation-injuring false statements or opinions. Sections 3(b)-(e) exempt some opinions and some honest mistakes, but not by any means all. (For instance, the "fair comment" privilege requires "good faith," which is often understood to mean the absence of hostility towards the target. See, e.g., Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 258 (Minn. 1980); Dadd v. Mount Hope Church, 780 N.W.2d 763, 770 (Mich. 2010).) So the result is that the law may also cover honestly believed false statements, and not just knowing falsehoods. (The Montana prosecutor in this case seems to agree; see pp. 17-19 here, arguing that the statute requires a showing that the defendant knew the statement was reputation-injuring, but not arguing that the statute requires a showing that the defendant knew the statement was likely false.)
The statute also covers statements about "group[s], class[es], or association[s]." I think it would make sense to interpret the statute (especially to avoid constitutional problems) as limited to relatively small groups, such as (to give examples from the Restatement of Torts, speaking of civil actions for libel) four officers of a corporation, or twenty-five employees in a particular job category. But the Montana prosecutor disagrees; statements that injure the reputation of Jews as a class (or presumably Muslims, blacks, gays, men, police officers, law professors, Republicans, or any other such group as a class), the prosecutor reasons, are also covered by the statute. And the court agreed with the prosecutor that the statute was indeed so broad.
Yet the court then concluded that the statute was overbroad, for two reasons: the statute (1) doesn't provide a defense for honest mistakes on matters of public concern (i.e., doesn't require that the prosecutor show that the speaker knew the statement was false or likely false), and (2) doesn't provide absolute protection for matters of opinion. More narrowly drafted criminal libel laws limited to knowingly false statements of fact about particular people (or small groups of people) would still be valid. And the court didn't preclude the possibility that they might be valid even if they extend to statements about large groups—ethnic groups, sexual orientation groups, professional groups, and so on. But this law, at least, was unconstitutionally overbroad.
The court did allow the prosecution to continue based on a "true threats" theory, as opposed to a libel theory. As you may recall, David Lenio posted many Twitter messages that mentioned killing. Some talked about school shootings:
Even animals without money get land to live on, hunt & forage; but Americans without dollars must be homeless? I want to shoot up a school
And some talked specifically about killing Jews:
USA needs a Hitler to rise to power and fix our #economy and i'm about ready to give my life to the cause or just shoot a bunch of #kikes …
Whether such general statements that don't focus on a particular person or a small group of people (or a particular location), but instead talk about killing schoolchildren generally or Jews generally, are punishable "true threats" is an interesting question. (It's also one that has come up recently when people have posted about wanting to kill police officers, or in past decades when people have posted about wanting to have a revolution and kill capitalists.) Rightly or wrongly, the court allowed the prosecution to proceed under this theory.
But the more important point, I think, is that the court rejected the criminal libel theory, which would have applied even to statements of opinion that do not include any threats of violence. Under the prosecutor's theory, even if the threats had been omitted, threat-less statements of opinion such as "#Copenhagen It's important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag," would still be criminally punishable. Likewise, similar statements about other groups, not just racial or religious groups but any group (professional, partisan, etc.), would be criminal, too. The Montana court held that such statements were constitutionally protected.
For more on the First Amendment background to all this, see items 4 and 5 of this post. For more on the facts, see item 3. And you can read the court's opinion here. We should know within several weeks whether the prosecutor will appeal this dismissal.