The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So U.S. District Court Judge Donald Molloy held today, in Myers v. Fulbright. 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, orally, in writing, or by any other means, including by electronic communication, … communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation and may be sentenced to imprisonment for not more than 6 months in the county jail or a fine of not more than $500, or both.
(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.
(4) A person may not be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or nolo contendere.
Judge Molloy held that, applying standard Montana interpretive principles, the law unconstitutionally allows liability for merely negligent falsehoods (see Mont. Code. Ann. § 45-2-103), which makes the statute overbroad under New York Times v. Sullivan and Garrison v. Louisiana. He also noted that the statute seems to put the burden on the defendant to prove truth (see City of Missoula v. Shumway ¶ 14 (2019)), which may also be unconstitutional (see Philadelphia Newspapers, Inc. v. Hepps (1986)).
I think this analysis is right, though I think the Montana Legislature can also easily reenact a suitably narrowed and therefore constitutional version of the statute, just as the Minnesota Legislature did after the Minnesota criminal libel statute was struck down in State v. Turner (Minn. Ct. App. 2015); the Montana Legislature also enacted this version of the statute when the earlier, still broader, version was struck down in State v. Helfrich (Mont. 1996). Of course, the state could also appeal to the Ninth Circuit, but I think it will lose if it does so.
Here is the backstory to the case, by the way, as alleged in Myers' complaint:
This case arises from the 2016 campaign for Ravalli County District Judge between Plaintiff Robert Myers and Judge Jeffrey Langton. Myers asserted during the campaign that Judge Langton was unfit for office. Montana's Office of Disciplinary Counsel (ODC), the state agency established to enforce the state's rules of professional conduct, filed two complaints against Myers during the campaign, at least one of which came at the behest of Judge Langton.
During the closing weeks of the campaign, Myers published campaign advertisements asserting that Judge Langton had abused his power as a judge by having impermissible conflicts of interest in criminal cases when he was the presiding judge. In one case, he was accused of purchasing drugs from, and providing alcohol to, a 13-year-old boy over whom he later sat in judgment. These allegations are corroborated by sworn affidavits from witnesses.
In January 2017, ODC filed a third complaint against Myers based upon these campaign advertisements. Myers has since been preparing his defense to this latest ODC complaint, which includes marshaling additional evidence of illegal drug and other evidence of Judge Langton's abuses of power.
Earlier this week, these efforts ground to a halt when Myers received a telephone call from the Missoula County Sheriff's Department. A sheriff's detective stated that Judge Langton had filed a criminal defamation complaint against Myers based upon Myers' campaign statements. The detective stated further that he was "investigating" the criminal complaint and "interviewing" witnesses. …
The government is also "investigating" witnesses who are needed by Myers to defend himself against its pending attorney disciplinary charges. When these witnesses discover that there is also an investigation of Myers for criminal defamation based upon Myers' allegations of misconduct by Judge Langton, they will become hesitant, to put it charitably, about testifying regarding their own knowledge of Judge Langton's misconduct.