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.

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

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Anonymous Coward says:

Re: Re: Re:

Well, at least it would put the kibosh on the old religious argument that atheism is actually a faith-based belief system since we can’t prove that there isn’t a supreme being.

(Although I guess I’m safe in Montana now: one of John Fenderson’s comments a while back turned me into a Discordian. The chaos is cool, but it’s hard as hell to put condiments on a hotdog.)

John Fenderson (profile) says:

Re: Re: Re: Re:

“but it’s hard as hell to put condiments on a hotdog.”

Discordians are encouraged to eat hot dogs (with buns) on Fridays as a remonstration, in part, against Discordianism. So you can safely contain your condiments then.

There’s also the Big Loophole: Discordians are prohibited from believing what they read, and the Pentabarf (where eating hot dog buns is forbidden) was distributed as written words…

Hail Eris!

But on a semi-serious, practical note: nobody is more disparaging of Discordianism than Discordians. It’s part of the disbelief system. So how would the Montana statute apply?

To say Discordians can’t make fun of Discordians would be a clear violation of the freedom of Discordians to practice their religion, after all.

Anonymous Coward says:

Re: Re: Re:2 Re:

I have chosen not to partake joyously, even on Fridays, entirely because it’s encouraged. Because this may be an invalid interpretation of Discordian edict, it seems to me that it’s fully justifiable. That’s my story and I’m sticking to it.

But on a semi-serious, practical note: nobody is more disparaging of Discordianism than Discordians. It’s part of the disbelief system. So how would the Montana statute apply?

Finding joy in contradiction is what really caught my fancy about Discordianism. It also seems to be what’s needed in government: every bill that might become law should really be given a robust paradox shakedown. We need more mathematicians and linguists in politics, and fewer lawyers.

Richard (profile) says:

Re: Re: Re:

The one i’d thought of was gay rights groups suing churches for much the same reason.

Or the other way around.

Or anyone from religion X suing people from religion Y or the other way around.

Also works for non-theistic ideologies, fans of sports teams players and other celebrities

Free speech means that you are free to hold any opinion and express it freely.

The problem with this law is that it is over general – and then gives exceptions – where it should be very specific such that the exceptions are not needed.

The law should require that both

1. The allegation in false.

2. There is a disparity of status, money or influence that makes it impossible for the “victim” to effectively rebut the allegation.

Hence a gay riights group wouldn’t be able to sue a church because of it’s general stance on the issue but an individual who had been singled out by a church for particular criticism would (unless that individual was a major politician or other public figure – who would be able to defend themself.

That Anonymous Coward (profile) says:

Why do they keep making laws like this?
Why do we waste taxpayer dollars to protect groups who are exempt from the tax base?

Much time, effort, money is wasted on passing laws (and fighting court cases trying to strike them down) to protect these groups who only seem to contribute their personal outrage to the equation.

Words are icky, but they are just words.
We make things taboo, and then are shocked some people use them to get a rise out of people. Perhaps it would be better to learn to ignore the yammerings of those saying things we dislike rather than attempt to regulate thought. If you want to be a racist, sexist, yadda yadda yadda… go for it. Nothing makes them more angry than being ignored. Blaming all of the ills of the world on a certain group, is the lazy mans way of sloughing off any blame they might share in the issue. Let the nutters rant, I’d rather see more time put into solving actual issues than protecting someones feels.

Oh well that nutter might do something!!! And an asteroid might fall from the sky & kill you. You can live in fear of what if, or you can live your life and know if the nutter crosses the line we have laws to deal with them. Punishing them for being loud & ignorant to appease a certain group is silly. (Although attractive as something to apply to Congress). Everyone deserves the same protections, and until we can do that we shouldn’t be making some more equal than others.

GEMont (profile) says:

Religion - the worship of Relics

“Montana Prosecutors Push For Idea That State’s Criminal Defamation Statute Outlaws Disparaging Religious Groups”

My question is, how does the court determine a Disparaging Religious Group, from a Non-Disparaging Religious Group.

They all look pretty darn disparaging to me, so I suggest they just outlaw them all. Save lotsa time.

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