CRIMINAL DEFAMATION: Montana statute unconstitutionally overbroad for lack of specific “actual malice” mens rea, contrary to Lynch’s implied reading… sua sponte summary judgment for disbarred attorney charged with criminal defamation of judicial election opponent… Molloy.
Magistrate Lynch’s Findings & Recommendation.
Robert Myers ran against Judge Langton in 2016. He claimed that Langton was unfit for office and ran several ads accusing him of abusing his power, purchasing and using illegal drugs, and drinking with minors. ODC filed misconduct complaints against Myers based on the ads, and the Montana Supreme Court disbarred him in 12/17. After learning in 5/17 that the Missoula Co. Sheriff’s Dept. was investigating a criminal defamation complaint filed against him by Langton, Myers commenced this action challenging constitutionality of Montana’s criminal defamation statute, §45-8-212. The State requests summary judgment that the statute is constitutional on its face and as applied to Myers.
Myers claims the statute is unconstitutionally overbroad & vague because it does not have an actual malice requirement, does not require the State to show falsity, and shifts the burden to the defendant by making truth an affirmative defense. He claims it is unconstitutional as applied to him because he is inhibited from continuing to speak out against Langton even if his statements are true and without actual malice.
It is well-established that “true communications are constitutionally protected” and not actionable as defamation in a civil suit or criminal prosecution. Helfrich (Mont. 1996); Sullivan (US 1964); Garrison (US 1964). Consistent with this principle, §45-8-212(3) recognizes that truth is a justification that precludes criminal liability for defamation. However, Myers contends that because of the way the statute is structured it does not require the State to prove falsity and improperly makes truth an affirmative defense that a defendant must allege and prove to avoid conviction. While this may be one plausible reading, the State offers an equally plausible reading pursuant to which it bears the burden of proving falsity. §212(3) can reasonably be read as setting forth exceptions to criminal defamation, rather than affirmative defenses. Under this reading, if defamatory matter is true, it is not punishable as criminal defamation and the State would have the burden of proving falsity as an element of the offense to obtain a conviction.
Where a statute is susceptible to different constructions, one of which raises constitutional concerns and the other does not, the Court must read it so as to avoid the constitutional problem. The State’s construction is the more reasonable because it avoids any constitutional problems raised by relieving it of having to prove falsity and construing truth as an affirmative defense that must be proven by the defendant.
Further, as the State points out, when the Montana Legislature intends to establish an affirmative defense to a criminal offense, it has done so expressly. See MCA 45-3-115 (“A person charged with prostitution [and related offenses] … may assert an affirmative defense that the person is a victim of human trafficking.”); MCA 80-18-11 (affirmative defense for possession or cultivation of marijuana). Unlike these statutes, MCA 45-8-212 says nothing about truth being an affirmative defense to criminal defamation or placing the burden of proof on the defendant. Had the Legislature intended for truth to be an affirmative defense to criminal defamation it could have explicitly designated it as such. Instead, it drafted §212(3) to effectively preclude criminal liability for true statements, thereby leaving it to the State to prove falsity.
Finally, construing the statute to require proof of falsity is consistent with the rule of lenity, which provides that when a criminal statute is subject to more than one reasonable but conflicting interpretation it should be construed in favor of the defendant. Stoner (Mont. 2012).
Sullivan held that in a civil defamation action by a public official seeking damages for a false statement regarding his official conduct, he must prove that “the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Garrison extended that holding to criminal defamations and declared Louisiana’s criminal libel statute unconstitutional because it did not establish truth as an absolute defense and punished false statements concerning public officials without requiring proof of actual malice.
The State agrees that Montana’s statute does not expressly include the actual malice standard, but argues that the Court should interpret it as incorporating the requirement. 1st, it relies on the principle that the Legislature is presumed to be aware of case law when it enacts or amends a statute. Swanson (Mont. 2002). The Legislature enacted §45-8-212 in 1973 and has amended it several times. Because Sullivan and Garrison had been decided several years earlier, the Court presumes that the Legislature intended to comply with them when it enacted 45-8-212 in its present form. 2nd, he State relies on the principle that the Montana Supreme Court presumes that statutes are constitutional and will adopt an interpretation that renders one constitutional rather than one that renders it invalid. Because 45-8-212 does not contain any intent element on its face, it is susceptible to different interpretations, one of which requires proof of actual malice and one which does not. If the Court were to accept Myers’s interpretation and read it as allowing for criminal liability without proof of actual malice, it would be unconstitutional under Sullivan and Garrison. The Court can avoid this problem by interpreting it more narrowly as requiring actual malice in cases involving public matters. The latter is consistent with Montana’s principles of statutory construction and is supported by the Montana Supreme Court’s application of the actual malice standard in civil defamation cases. Roots(Mont. 1996). Like its criminal counterpart, the civil statute, §27-1-802, does not expressly incorporate the actual malice standard. The Montana Supreme Court has nevertheless applied the Sullivan standard and held that a “public figure cannot recover damages upon a claim for defamation without a showing of actual malice.” Roots. This suggests that it would do the same in the criminal context where the rule of lenity applies.
Recommended, the State’s motion for summary judgment be granted.
Robert Myers argues that it was error for Judge Lynch to judicially construe MCA 45-8-212 to include an actual malice standard; conclude that there was not an intent element, which made the statute ambiguous; apply Montana’s reasonable doubt burden of proof; ignore Myers’s vagueness argument; assume that the statute as written does not conflict with 1st Amendment precedent; and fail to address the constitutionality of the claims presented in his Response to Summary Judgment. He is a disbarred lawyer proceeding pro se. Despite his legal background, his pro se status requires his filings to be construed liberally, Bernhardt (9th Cir. 2003), complicating review of his objections. In light of his status, his objections are considered specific enough to elicit de novo review in those areas identified. Ultimately, §45-8-212 is substantially overbroad because it does not include an actual malice requirement, Sullivan (US 1964), Garrison (US 1964), and its overbreadth cannot be cured by a narrowing interpretation.
A defamatory statement must be “made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Sullivan. Myers argues that 45-8-212 is facially invalid because it does not include an “actual malice” requirement. It “should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts and its deterrent effect on legitimate expression is both real and substantial.” Erznoznik (US 1975); Broadrick (US 1973). In the 1st Amendment context, “a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the state’s plainly legitimate sweep.” Stevens (US 2010). Substantial overbreadth does not exist if the statute’s application can “be cured through case-by-case analysis of the fact situations to which its sanctions may not be applied,” Broadrick, and “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court,” Jews for Jesus (US 1987); Taxpayers for Vincent (US 1984).
Because Myers challenges a state statute, Montana’s rules of statutory construction apply. Harris (9th Cir. 2013). First, the Court must presume that when the Montana Legislature enacts or amends a statute it is aware of existing law, including decisions interpreting statutes. Swanson (Mont. 2002). Thus when Montana enacted 45-8-212 in 1973 it is presumed to have been aware of Sullivan and Garrison. However, the 1973 statute was based on the 1962 version of the Minnesota Criminal Code, which did not consider Sullivan or Garrison. Moreover,Helfrich (Mont. 1996) held that the statute was unconstitutionally overbroad for including language that prevented truth from being an absolute defense. The 1997 Legislature was forced to amend it to remove the offending language. As a result, the Legislature’s omnipotence as to the state of the law has been enervated in this context. (While Myers did not object to Lynch’s determination that the statute does not improperly make truth an affirmative defense, Shumway (Mont. 2019) may raise a question whether §45-8-212(3)(a) remains appropriately drafted (where an exception to a criminal statute is separate from the enacting clause, the exception is to be proven by the defense).)
2nd, statutes are presumed constitutional and courts must “construe statutes narrowly to avoid an unconstitutional interpretation if feasible.” Morris (Mont. 2006). In doing so, they must be read “as a whole, without isolating specific terms from the context in which they are used by the Legislature.” Id. Nevertheless, criminal regulation of 1st Amendment expression is subject to exacting review. Ytterdahl (Mont. 1986); Gooding (US 1972). Courts must look no further if the plain meaning clearly conveys the intent behind the statute. Holeman (Mont. 1996). Moreover, Supreme Court precedent does not “authorize a court in interpreting a statute to depart from its clear meaning.” US v. Sullivan (US 1948). The explicit terms of 45-8-212 do not include an actual malice requirement. Recognizing the indefensibility of such broad language, the State argues for a narrowing interpretation that includes the requisite mental state. The question then is whether “actual malice” is contained “in substance” in the statute. Montana has never specifically held that 45-8-212 is limited to situations involving “actual malice.” The next question is whether it could do so. It has read constitutional standards into criminal cases involving “fighting words” under the 1st Amendment. O’Shaughnessy (Mont. 1985) (narrowly construing a Whitefish City ordinance to apply only “to words that have a direct tendency to violence”); Lance (Mont. 1986) (narrowly construing intimidation statute to require “true threat”). However, those statutes included the basic element or phrase at issue, providing an arguably ambiguous starting point from which the Court could apply a narrowing construction, while 45-8-212 does not mention “actual malice” or falsity. As was the case in Helfrich, Turner (Minn. 2015) struck the part of its defamation statute that prevented truth from being an absolute defense, but it went a step further, holding that it was unconstitutional and could not be narrowly interpreted to include the absent mental state because that “would constitute a serious invasion of the legislative domain.” (quoting Stevens). The Minnesota Legislature responded by amending its criminal defamation statute to add a scienter requirement based on a matter’s “false” character. Such legislative amendment is necessary here.
There is an argument that a general mens rea statute could provide the necessary scienter. Phelps (10th Cir. 1995); Osborne (US 1990) (an absent mens rea requirement may be “cured by another law that plainly satisfies the element of scienter”). MCA 45-2-103(1) states that for most offenses (excluding deliberate homicide), “a person acts while having one of the mental states of knowingly, negligently, or purposely.” This is not a saving grace for 45-8-212, because “actual malice” is a unique mental state that could not be achieved by reading a “knowingly, negligently, or purposefully” requirement into it. “No recognition is given the reckless disregard and knowing falsity standard mandated by” Sullivan and Garrison. Armao (Penn. 1972). To read such a requirement into it goes beyond mere judicial activity to “judicial legislation.” Id. The Court cannot “rewrite a law to conform it to constitutional requirements,” and to read 45-8-212 as the State desires “requires rewriting, not just reinterpretation.” Stevens. See also Lenio (11th Judicial Dist.) (Judge Ulbricht holding that reading “actual malice” into the statute “would constitute a serious invasion of the legislative domain” and ultimately finding 45-8-212 overbroad) (quoting Stevens)).
I reluctantly disagree with Judge Lynch’s view. Because §45-8-212 is unconstitutionally overbroad, I do not address Myers’s remaining arguments including his alleged vagueness claim. That said, as the line between knowledge and ignorance becomes even more nuanced in the age of electronic communications and social media, specific statutory guidance is imperative. O’Shaughnessy, Smith (US 1974), Stevens.
Summary judgment is granted in favor of Myers. Rule 56(f)(1); Gospel Missions (9th Cir. 2003) (upholding sua sponte grant of summary judgment in favor of nonmovant where the movant’s filing of its own summary judgment motion addressed the issues on which summary judgment was granted).
Myers v. Ravalli Co. Atty. Fulbright and AG Fox, 44 MFR 197 (Lynch), 198 (Molloy).
Robert Myers, Hamilton, pro se; Asst. AGs Stuart Segrest & Matthew Cochenour.
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