A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
Readers following the case of David Lenio, the man accused of threatening to kill local schoolchildren and of defaming Jews, will want to read Eugene Volokh’s Hate speech prosecution in Montana in today’s Washington Post. Volokh, a conservative libertarian expert on First Amendment law who teaches at UCLA’s law school, concludes:
…the prosecutor has interpreted the Montana criminal defamation statute in a way that I don’t think any criminal defamation statute has been interpreted in decades — a way that risks criminalizing derogatory opinions as well as controversial factual statements about religious groups, racial or ethnic groups, either sex, sexual orientations, professions, political movements, and more.
If the criminal defamation count is upheld, “hate speech” prosecutions (again, even for statements that lack any threat of violence) would become eminently viable. A dangerous potential precedent, and one that I hope the Montana courts will avoid setting.
Regular readers of Flathead Memo know that from the beginning I’ve been skeptical of the charges brought against Lenio, especially the criminal defamation charge. My 21 February 2015 post examined the history of Montana’s criminal defamation statute, which until 1996 said that the truth alone was not an absolute defense.
I thought that given time, Lenio’s prosecutors would quietly drop the criminal defamation charge. Instead, they’re sticking to it, possibly to gain leverage in a plea bargain, possibly to raise a prosecutor’s public profile.
Fortunately, Lenio’s lawyer is fighting back.
Public defender Brent Getty, Lenio’s attorney, moved for dismissal of the charges at a hearing before district judge Heidi Ulbricht on 6 May, reported the Missoulian:
In his motion to dismiss both charges, Getty argues that the statue prohibiting intimidation is unconstitutionally overbroad because it may allow a conviction for speech that does not constitute a “true threat.” The law regarding criminal defamation, Getty says, is also unconstitutionally overbroad because “it allows for conviction of group defamation without a finding of ‘actual malice.’ ”
The intimidation charge, meantime, requires the defendant’s purpose “be directed to an actual person,” Getty writes.
“Despite the efforts of 14 law enforcement officers from three agencies, no alleged victim can be named, because there is no victim,” the motion states. “Nowhere in the affidavit or the tweets is any specific kid, group of kids or school referenced.”
Getty also argues that the intimidation stature requires a defendant to do more than make threats.
I suspect Getty may have brought Lenio’s predicament to Volokh’s attention, directly or indirectly. If so, he did the right thing.