Montana Prosecutors Push For Idea That State's Criminal Defamation Statute Outlaws Disparaging Religious Groups

from the 'bigger-than-Jesus?'-that's-a-handcuffin' dept

As much as some people may not like it, the First Amendment protects a lot of offensive speech. Montana's laws, however, seemingly don't. In a case currently making its way through its court system, the prosecution is arguing that the state's broadly-written criminal defamation statute encompasses this area of protected speech.

As Eugene Volokh points out, most criminal defamation statutes cover only knowingly false statements made about singular people -- which means there's a specific victim to tie to the criminal activity. Montana's, on the other hand, contains no such specification.

(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 without the consent of the person defamed commits the offense of criminal defamation ….
(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.

Because of the "person, group, class or association" language, prosecutors are arguing that defendant David Lenio's social media postings disparaging Jews should be met with criminal charges. (Lenio's posting also included several "threats" -- including several offers to shoot up a school -- for which he has received additional criminal charges. These charges, too, are debatable, since many of the postings are nonspecific in nature.) Lenio has appealed the lower court's finding that certain postings violated the state's criminal defamation law, arguing (correctly) that the state's law is overbroad.

Volokh points out that the First Amendment protects opinions, honest mistakes and even knowing falsehoods about large groups. As he reads it, the statute's reference to "groups, classes or associations" is supposed to be read narrowly to include only very small groups. (The examples he uses from previous cases include "four officers of a corporation" or "twenty-five employees in a particular job category.") The prosecution sees otherwise:

The words "a group, class, or association" have ordinary meaning and do not require specific statutory definition. By the plain statutory language, the Montana Legislature intended criminal defamation to apply to more than just an individual. If the legislature intended criminal defamation to only apply to individuals, the statute would not also provide for defamation of a group, class, or association. Lenio seeks to have the Court read into the criminal defamation statute a requirement of a size of a group, class, or association. This strikes against the statutory construction rule against inserting language that was omitted by the legislature.

Additionally, Lenio looks to civil law to define the size of group of people defamed. This is problematic because in a civil claim for libel, an individual plaintiff must bring a suit to seek monetary damages, whereas in criminal law the State files charges against offenders on behalf of its citizens. State has a substantial interest in protecting society from threatening speech while the benefits derived from such speech are minuscule. Merely because the legislature defined criminal defamation distinctly from civil defamation does not render the criminal law overbroad.

But the law is overbroad. What Lenio posted was undeniably ugly, but it was still protected speech.

I think every jew on the planet deserves to be killed for what kikes have done to our #dollar and cost of living Killing jews > wage #slave ….

I’m a wage slave to ink and paper dollars we print to bailout jewish mega banks as kikes go on bout #WhitePrivilege & I’m not suppose to kill? …

#Copenhagen It’s important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag So Hope for many REAL dead kikes

Now that the holocaust has been proven to be a lie Beyond a reasonable doubt, it is now time to hunt the Nazi hunters.

The prosecution has the law in their favor, as written. As intended, likely not. Criminalizing this sort of speech may be acceptable to those who believe the First Amendment covers far less area than it actually does, but it's a net loss for everyone if statutes like these are upheld. There is very little upside to exempting certain groups from criticism, especially religious groups -- an area of discussion where opinions are frequently heated and ill-informed. Being stupid, obnoxious or filled with irrational hatred is not a crime. Nor should it be. But if the state's higher court accepts the prosecution's reasoning, it will be -- at least for those in Montana.

If prosecutors get their way, the state of Montana will be no better than several countries where disparagement of certain religions is forbidden by law. This also spills over to areas far beyond what's covered in this court battle: special interest groups, sexual orientations, political parties, etc. Affected individuals, who dislike the ideas of others, will be able to avail themselves of a horribly-written statute to stifle First Amendment-protected speech.

As Volokh notes, there are criminal aspects to some of the postings made by Lenio (but many of those still reside in a gray area) and the prosecution should have limited itself to those alone. But it has overreached, with the assistance of a terribly-written law, and its desire to prosecute Lenio to the full extent of a bad law could have very serious repercussions for Montanans, who will find their speech more limited than residents of surrounding states.

Filed Under: david lenio, defamation, free speech, montana, religion