Free Speech

Montana Criminal Libel Statute Struck Down

The statute doesn't require that the defendant knew the statement was false or likely false, and is thus inconsistent with Supreme Court precedent.


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.

NEXT: Imitation is the sincerest form of flattery

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  1. “(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.”

    By that definition, every democratic statement published exposes all white males of normal sexuality to ‘hatred, contempt, ridicule, degradation, or disgrace in society’.

    Lock them all up!

    1. Well, yes, they should indeed all be locked up, and there is good legal precedent for doing so. See the Second Circuit’s analysis in our nation’s leading criminal “satire” case, documented at:

      and see my longer comments below.

      1. P.s. and all those people smearing our great leader, Mr. Nunes, with so many defamatory statements on Twitter, pretending to be his mother, and spreading the lies further and further around–all of them should go to jail too, no matter how many of them there are. Clearly they know they’re not his mother, which is already proof that they’re trying to deceive thousands of people by libeling such a good man. I say he should do what he needs to do to have them all arrested, and not merely file a civil lawsuit.

        1. P.p.s. it is great to see, by the way, that only a total of four people participated in the conversation that developed yesterday on this page (see below). The relative lack of interest in criminal libel, criminal “parody,” and related matters will certainly help us get these fake-news, reputation-assaulting “tweeters” jailed while keeping certain academic reputations intact.

          1. P.p.s. again: I really must emphasize how satisfying it is to see the lack of interest in material such as this:


            See, e.g., p. 4:

            “The three special international mandates for promoting freedom of expression ? the UN
            Special Rapporteur, the OSCE Representative on Freedom of the Media and the OAS
            Special Rapporteur on Freedom of Expression ? have met each year since 1999 and each
            year they have issued a joint Declaration addressing various freedom of expression
            issues. In their joint Declarations of November 1999, November 2000 and again in
            December 2002, they called on States to repeal their criminal defamation laws. The 2002
            statement read:
            Criminal defamation is not a justifiable restriction on freedom of expression; all
            criminal defamation laws should be abolished and replaced, where necessary, with
            appropriate civil defamation laws.”

            Such rubbish! (And there’s of course a good deal of more recent material.) Eugene deserves nothing but praise for failing to mention this nonsense when making his various arguments that criminal libel passes constitutional muster.

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  2. This is an awful result. As is clear from the Second Circuit’s decision in our nation’s leading criminal “parody” case, documented at:

    the Sullivan standard should really not be enforced anymore in this day and age. The Second Circuit had a much better idea: simply distinguish between an intent to “convey an idea,” which is legitimate, and an intent to “damage a reputation,” however truthfully, which is not legitimate and may appropriately be criminalized. Since the Montana statute required knowledge of the defamatory character of the communication, it should have been upheld.

    On the other hand, since a good deal of libel takes the form of written “parody” (see all those fake tweets inappropriately circulating in the names of university presidents–tweets whose intent is clearly to damage a reputation rather than convey an idea), the statute should contain a clause specifying that written “parodies” will be protected only if they explicitly identify themselves as “parodies,” or if their light, humorous intent is otherwise obvious to any reader.

    1. P.s. our leading criminal “parody” case referred to above has, of course, also been called a criminal “impersonation” case, a “forgery” case, an “aggravated harassment” case, an “unauthorized access to a computer” case, and an “identity theft” case. It is an outrage that of the original 52 charges, only 10 were upheld on appeal, and that the perpetrator was allowed to go free instead of serving the jail sentence originally imposed, which in itself was a light punishment considering the serious nature of the intended harm. The courts spent far too much energy examining the various laws skillfully invoked by the prosecution on behalf of a distinguished member of the academic community, to say nothing of parsing the emails involved to distinguish between ones that were purportedly intended to “convey an idea” and others that must have been intended to “damage a reputation.” The least one can say is that discretionary appeals will hopefully not be granted in future cases of the sort.

    2. which is legitimate, and an intent to “damage a reputation,” however truthfully, which is not legitimate and may appropriately be criminalized.

      Hmmmmmm. I don’t know that pointing out someone is, truthfully, an idiot or abuser or whatever, is not legitimate, especially in a political context.

      I recall a case from France 20 years ago, where one candidate was having an affair with the other one’s wife. He pointed this out, and, having no first amendment, was tried for damaging a reputation with truthful info.

      The case got tossed because, as that time, “family values” was a buzzword for politicians to bloviate about, including the cheater, so they ruled it was a legitimate subject to question his adherance to same.

      “Thank god that can’t happen in the US,” I thought.

      Was I foolish?

      1. I don’t believe European court decisions have any applicability to American law.
        And in this regard, it should also be mentioned that Eugene, in his comments explaining that libel can be criminalized, has wisely chosen not to address the decisions of the so-called Human Rights Commission of the United Nations, or of the European or African so-called courts of Human Rights, that libel should never be punished with jail (which is why only small fines are allowed as punishment in countries like France).
        Likewise, Eugene has wisely chosen not to mention the so-called international campaign for the decriminalization of libel, a campaign waged by “civil rights” organizations and which has resulted, for example, in libel being decriminalized in England.
        Let’s be clear: American courts are not obliged to follow these decisions or suggestions, and here we have a much better understanding of how to punish and prevent serious criminality of the sort.

        1. P.s. I already hear the objection of some, that the various “human rights” court decisions referred to above are based on the language of an international treaty to which the United States also nominally adheres. I think everyone knows that adherence to any “treaty” of the sort has no binding effect in our great nation.

          P.p.s. incidentally, Eugene has very wisely and cautiously abstained from any discussion of the “line” drawn by the Second Circuit between intending to “convey an idea” and seeking to “damage a reputation.” (I.e., the court held that it’s okay to send out deceitful emails, as long as they “convey an idea.” It also held that merely “puerile” deceitful emails cannot be criminalized.) Clearly some ideas are more legitimate than others, and outrageous speech that damages a reputation shouldn’t qualify as an idea to begin with (or as “puerile”), but figuring out how this works does seem to call for some additional criteria and interpretation, so it’s really a problem that it’s best not to mention. If we address it openly, our project of getting libel recriminalized throughout our nation could end up being confronted by some unwanted difficulties.

  3. I’m missing a piece of this puzzle.

    NY Times v. Sullivan required actual malice for civil actions for defamation of public officials.

    Garrison v. Louisiana extended that requirement to criminal prosecutions for libel of public officials.
    The court found the Louisiana statute unconstitutional “in the context of criticism of the official conduct of public officials”.

    This opinion however finds the Montana statute to be facially overbroad because it lacks an actual malice standard, even though it should only be necessary in libels of public officials(or, liberally incorporating later precedent, of public figures or concerning public issues). Maybe the rationale is that private libels are too small a portion of the statute’s scope to save it from a facial challenge, but I would have expected the opinion to have spelled out that reasoning if it were being adopted.

    1. You also need to read Aston v. Kentucky (384 U.S. 195), the Court’s famous decision holding a criminal libel statute unconstitutional.

      1. Thanks for the tip. Ashton wasn’t cited, which is again surprising if it were involved, but I suspect it wasn’t as it concerned common law criminal libel rather than a statute. As charged by the Kentucky trial judge, common law criminal libel was actually criminal breach of the peace in disguise.

        1. Thank you for pointing out that inaccuracy in my comment. Note, however, that the “breach of the peace” element in the common law of libel held intolerably vague in Ashton connects precisely with that quote in Garrison about why there is no longer any need to criminalize libel: it no longer threatens public safety the way it once did (we no longer challenge people to duels when we are libeled). That theme is what led the authors of the Model Penal Code (it’s they who the Court is quoting) to recommend decriminalizing libel. Eugene is right to ignore this recommendation along with all the international “human rights” courts that have implemented it, as it reflects the “liberal” tendency of the “civil rights” era. Today we stand for principled conservatism values, and hence for recriminalizing libel wherever it can be recriminalized.

          1. P.s. (I noted that theme in Garrison in my comment below, which I meant to make as part of this thread).

        2. Voize of Reazon: That’s correct; Ashton doesn’t speak to the constitutionality of criminal libel statutes limited to knowingly or reckless false statements of fact, and Garrison v. Louisiana and Herbert v. Lando treat such narrow statutes as constitutional. As Herbert puts it, citing Garrison, “Criminal libel prosecutions are subject to the same constitutional limitations” as civil libel claims.

          1. Exactly–bingo! We certainly shouldn’t dwell on the Court’s quotation of the authors of the Model Penal Code in Garrison, or on its basic reiteration of the same point in Ashton, since, after all, the technical issue was left open. And it follows that all of the states that decriminalized libel in the wake of those two decisions, were under the mistaken impression that somehow the Court had “impugned” the constitutionality of criminal libel, and that criminalizing libel had somehow fallen into “disrepute.” This was a foolish error on the part of the state legislatures, subject as they were at the time to the corrupting influence of so many “civil rights advocates.” And the various international courts and councils in Europe, Africa and at the United Nations that have ruled that no one should be jailed for libel, often mentioning in passing their view that states ought to decriminalize libel, have been laboring under a similar misconception. The same holds especially true for the English legislature, which foolishly decriminalized libel six or seven years ago after many hearings on the matter. Even if there were some sort of a “policy” basis for such a misguided decision, it certainly doesn’t have any implications for American law, and can safely be ignored.

    2. Voize of Reazon: As the court pointed out, “a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” A substantial number of the applications are indeed unconstitutional — applications as to speech about public figures and public officials — so that makes the statute overbroad even if, as applied in some other situations, it would be constitutional.

      But beyond this, Gertz v. Robert Welch, Inc. held that punitive damages can’t be awarded without a showing of “actual malice” even as to speech about private figures (so long as it’s on a matter of public concern, see Dun & Bradstreet). Given that logic, it seems even clearer that punitive criminal liability can’t be imposed without showing “actual malice” as to libels of private figures on matters of public concern. So that further shows just how overbroad the statute is: It’s unconstitutional as to all public-concern libels, and would be constitutional only as to private-concern ones.

  4. P.s. and also focus on the language quoted in Garrison to the effect that there is no longer any reason for libel to be criminalized, because the social conditions (duels, etc.) that originally led to its criminalization no longer exist.
    This, of course, is language the United States Supreme Court should be ashamed of ever having cited. But at the time it, along with Ashton, was very influential, and led to many American states foolishly decriminalizing libel. Ironically, much of the international campaign to decriminalize libel invokes that tradition. They should contact Eugene to understand how harmful their efforts have been. To think that libel has been decriminalized in England on grounds of “free expression” and “human rights”! What a scandal.

    1. P.p.s. I meant to make this comment as part of the earlier thread. At any rate, here is the outrageous MPC quote from Garrison:

      “[P]enal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit. Usually we reserve the criminal law for harmful behavior which exceptionally disturbs the community’s sense of security. . . . It seems evident that personal calumny falls in neither of these classes in the U.S.A. [and] that it is therefore inappropriate for penal control.”

      As I suggested earlier, Eugene does very well not to focus on such distasteful matters. As a technical matter, the Court merely held that criminal libel trials had to be conducted under the same so-called standards as civil defamation trials; other aspects of the opinion are best not discussed. (The situation is a bit different for criminal “parody” trials, since they do not, technically speaking, overtly present themselves as dealing with “libel.” As the trial court explained in our nation’s leading case in this field, in such trials “neither good faith nor truth is a defense,” a minor issue that the appellate courts that reviewed the case skillfully avoided addressing.)

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