31 May 2018 — 0600 mdt
Matt Bell’s mistakes in HD-94 primary were boneheaded, but they’re not criminally defamatory as the Larsen v. Bell complaint alleges
When Democratic heavyweights in Missoula began denouncing Matt Bell for filing against incumbent Rep. Kimberely Dudik in the Democratic primary for House District 94, I defended his right to challenge an incumbent. But I did not endorse him.
I’m mighty glad I didn’t. As described by Susan Elizabeth Shepard and Alex Sakariassen in a fine story in the Missoula Independent, Bell sent to HD-94 voters a campaign card claiming endorsements he did not receive, and making assertions about Dudick’s voting record that were not documented and, alleges Dudick’s treasurer, Cliff Larsen, just plain wrong.
In a 37-page complaint filed with Montana Commissioner of Political Practices on 29 May, Larsen accused Bell of violating several sections of Montana’s laws governing political campaigns. He also claims Bell violated Montana’s criminal defamation statute, MCA 45-8-212
45-8-212. Criminal defamation. (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, 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:
(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.
As I reported on 21 February 2015, Montana’s criminal defamation law once was ruled unconstitutional. It has an unsavory reputation, as do all criminal defamation laws. Writing in the American Journalism Review in 1996, 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:
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.
There’s more, so be sure to read my full 21 February 2015 post.
Accusing Bell of violating Montana’s criminal defamation law goes too far. It’s an attempt to criminalize political disagreement. Bell has made mistakes, some so boneheaded that his immediate political future is bleak. But I detect no malice, no vendetta, no personal hatred, in his remarks. He’s simply a careless candidate who didn’t do his homework. There’s no case for a criminal defamation prosecution; just an opportunity for a criminal defamation persecution. Larsen’s accusation of criminal defamation strikes me as nothing more than an angry partisan’s ill advised potshot at a rival candidate who roused the ire of the Democratic establishment.
At The Montana Post, Nathan Kosted called on Bell to withdraw from the race. At this point, he can only suspend his campaign. His name is on the ballot and because of early voting, many votes in HD-94 already have been cast.
Dudik wins the battle of the campaign websites
Bell’s website, mattbell4montana, has one page that begins by asking for money. It says little about Bell or why he believes Montana would be better if he replaced Dudik in the legislature. He’s raised little money.
Dudik’s website, kimdudik.com, is extensive, with a detailed biography, a detailed page on issues, a detailed page on her legislative accomplishments, and a page of impressive endorsements. Visually, it’s a depressing website because of its design, poor use of images, and choice of cold colors, but I give it an “A” for content.
Dudik, seeking her fourth term in the Montana House, and her third in HD-94, had a close election in 2014, winning by only 48 votes. In 2016, she won by 446 votes, but ran approximately 400 votes behind Steve Bullock. Even Hillary Clinton carried the district.
The winner of the HD-94 Democratic primary will face Republican contractor Dean Rehbein, who last year sought the Republican nomination for the special Congressional election won by Greg Gianforte. Because 2018 is a midterm election, turnout will be lower than in 2016 and the election could be closer. If Dudik wins the primary — I think she will; I’d vote for her — her primary campaigning will strengthen her fall campaign.