A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
Losing a libel trial can bankrupt a man. But being convicted of criminal defamation can get him fined, tossed in jail, or both. Montana is one of 17 states that still have criminal defamation laws on their books — and until 1996, not even truth was an absolute defense in the Treasure State. The defamatory material had to both true and “…communicated with good motives and for justifiable ends.”
Jane Kirtley, Silha Professor of Media Ethics and Law at the University of Minnesota’s School of Journalism and Mass Communications, placed Montana’s criminal defamation law in historical context in an article in the American Journalism Review in 1996:
Historically, these statutes were intended to prevent public disorder by punishing reckless falsehoods that might incite duels, riots or other acts of revenge. They also tried to ensure that only “right-thinking” people expressed critical opinions about the government by allowing libel defendants to cite truth as a defense only if they could also show that they acted with “good motives and justifiable ends.”
Most of these statutes are clearly unconstitutional by modern standards. A 1964 U.S. Supreme Court case, Garrison vs. Louisiana, decided the same year as the landmark New York Times vs. Sullivan, held that truthful criticism of public officials is absolutely protected from criminal as well as civil defamation charges. But the court did not address the question of whether criminal libel was unconstitutional in purely private defamation actions.
In the wake of Garrison, several state legislatures repealed criminal defamation laws, and some state courts struck them down. But Montana’s law stayed on the books. And so in 1994, when Richard Helfrich was prosecuted for stalking after he distributed about 100 fliers in the Butte area alleging that another man had committed a crime, he was also charged with violation of the criminal defamation law.
Helfrich was convicted of both charges. On appeal, he argued that the statute was unconstitutional because it allowed him to be convicted of a crime based on a standard less rigorous than in a civil libel suit. The Montana law permitted him to assert truth as a defense, but only if he could show he had communicated the information with “good motives and for justifiable ends.”
The Montana Supreme Court agreed with Helfrich. It ruled unanimously that the state legislature could not dilute the constitutional requirement that truth is an absolute defense to any libel claim by requiring the speaker to demonstrate that he had good motives for saying what he did. The court didn’t even consider whether what Helfrich had written was true. It struck down the statute as unconstitutional on its face. [Links added by Flathead Memo.]
State v. Helfrich, 277 Mont. 452 (Mont. 1996), was decided on 9 August 1996. Justice William Leaphart wrote the opinion for a unanimous court.
Instead of repealing the criminal defamation statute, Montana’s legislature decided to amend it to satisfy State v. Helfrich. In the 1997 legislative session, “…communicated with good motives and for justifiable ends” was deleted. In the 1999 session, “nolo contendere” was added to section 4. And in the 2003 session, electronic communication was added to section 2. The statute, with additions and deletions marked, is below.It’s now something of a historical footnote, but in the 2003 session, then Sen. Mike Taylor (R-Dayton) tried to redefine political libel with an exciting bill, SB-452, that passed the Senate 36–14, but was tabled in the House’s state administration committee.
There have not, I suspect, been many prosecutions of criminal defamation in Montana since Helfrich. If so, that’s good. Not only could convictions be hard to obtain — I think juries might be reluctant to throw Joe in jail just because he called redheaded Ginger a blue-haired dingbat — but the statute’s existence is an invitation to criminalize political differences and the criticism of state authority.
That’s why I think Flathead County is playing with fire by charging David Lenio with criminal defamation. Charging him with malicious intimidation was enough to get him off the street while his situation was sorted out. Charging him with criminal defamation was a gratuitous exercise in political grandstanding that could lead to a show trial for a hate speech prosecution. It may also be intended as a bargaining chip in a plea deal, but if so, I think it’s a mighty thin chip.
45-8-212. Criminal defamation.
(1) Defamatory matter is anything which exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to his 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, as defined in 45-8-213, 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:
(4) No person shall 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.