Montana criminal libel investigation for accusing a judge of misbehavior

From the complaint in Myers v. Fulbright, filed last week:

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.

Montana is one of the about dozen or so states that have criminal libel statutes. Based on some research I'm doing, I can say that there are about 10 to 20 criminal prosecutions each year throughout the country and about one a year in Montana. And criminal libel statutes are constitutional, if they embody the protections that are required in civil cases (see Herbert v. Lando (1979)) - chiefly that for any punishment for libel, at least on matters of public concern, the prosecution must show that the speaker knew his statement was false (or at least consciously had serious doubts about the statement, and recklessly disregarded those doubts), see Garrison v. Louisiana (1964).

But Montana criminal libel law does not seem to require such knowledge or recklessness as to the falsity of the statement. The statute provides (emphasis added):

(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 … 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.

The statute expressly requires knowledge that the statement tends to expose a person to hatred, contempt and the like. It allows (under the rubric of "fair comment") the expression of defamatory opinions if they are made "in good faith." But it doesn't require a showing that the person made a factual allegation with knowledge of its falsehood. And while Montana criminal law generally requires a showing of at least negligence as to each "element" of the crime, (a) it's not clear that the defense of truth is an "element," and (b) under the Court's First Amendment libel law, a showing of negligence is not sufficient for a conviction.

Myers (represented by Montana First Amendment lawyer Matthew Monforton) has now moved for a preliminary injunction, arguing that the Montana statute violates the First Amendment both on its face and as applied to Myers. I expect the Montana government defendants to argue that the statute should be read as implicitly requiring knowledge or recklessness as to falsehood, but, as Myers's brief notes (pages 16 to 18), state courts considering criminal libel statutes have been reluctant to read such language into them. I predict that the statute will be struck down.

If the statute is struck down, though, the Montana legislature would then be free to reenact it with the knowledge/recklessness requirement added. I don't know if there will be enough political interest in doing that; but the Minnesota legislature did reenact its state criminal libel law last year after it was struck down as overbroad - the new Minnesota version is limited to a statement made with "knowledge of its false and defamatory character" (emphasis added).