The prosecutor’s office in Flathead County, Montana (where Kalispell is located) is arguing that speech that exposes Jews — or other religious, racial, and other groups — “to hatred, contempt, ridicule, degradation, or disgrace” is criminally punishable, unless it consists of true factual statements. As the Montana criminal defamation statute is worded, this means that hatred-inducing opinions are criminally punishable, too. Yes, this is that extraordinarily rare thing: an American prosecution for “hate speech” (State v. Lenio). The First Amendment doesn’t allow that.

1. First, a bit of perspective. When many of us think of criminal defamation, we’re probably thinking about something like this Utah statute (just to give one example):

A person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule.

The statute is limited to false factual assertions. It requires a showing that the speaker knows the statement is false, and isn’t just mistaken (reasonably or not). And it requires a statement about a particular person.

2. The Montana statute, though, is different:

(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.

Sections 1 and 2 thus cover any statements that expose people to hatred, contempt, ridicule, degradation, or disgrace — whether true statements, false statements, or opinions. Section 3(a) exempts true statements; now the statute covers reputation-injuring false statements or opinions. Sections 3(b)-(e) exempt some opinions and some honest mistakes, but not by any means all. (For instance, the “fair comment” privilege requires “good faith,” which is often understood to mean the absence of hostility towards the target. See, e.g., Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 258 (Minn. 1980); Dadd v. Mount Hope Church, 780 N.W.2d 763, 770 (Mich. 2010).) So the result is that the law may also cover honestly believed false statements, and not just knowing falsehoods. (The Montana prosecutor in this case seems to agree, see pp. 17-19 here, arguing that the statute requires a showing that the defendant knew the statement was reputation-injuring, but not arguing that the statute requires a showing that the defendant knew the statement was likely false.)

The statute also covers statements about “group[s], class[es], or association[s].” I think it makes sense to interpret the statute (especially to avoid constitutional problems) as limited to relatively small groups, such as (to give examples from the Restatement of Torts, speaking of civil actions for libel) four officers of a corporation, or twenty-five employees in a particular job category. But the Montana prosecutor disagrees; statements that injure the reputation of Jews as a class (or presumably Muslims, blacks, gays, men, police officers, law professors, Republicans, or any other such group as a class), the prosecutor reasons, are also covered by the statute.

3. So that’s the prosecutor’s interpretation of the statute. Now the facts: David Lenio posted many Twitter messages that mentioned killing. Some talked about school shootings:

Even animals without money get land to live on, hunt & forage; but Americans without dollars must be homeless? I want to shoot up a school

And some talked specifically about killing Jews:

USA needs a Hitler to rise to power and fix our #economy and i’m about ready to give my life to the cause or just shoot a bunch of #kikes …

You might think that, if Lenio is being prosecuted for these messages, he would be prosecuted under a statute that bans threats — and you would be right, since that is Count I of the criminal charge against Lenio. Whether such general statements that don’t focus on a particular person or a small group of people (or a particular location), but instead talk about killing schoolchildren generally or Jews generally, are punishable “true threats” is an interesting question. (It’s also one that has come up recently when people have posted about wanting to kill police officers, or in past decades when people have posted about wanting to have a revolution and kill capitalists.)

The noteworthy — and much more dangerous — thing about this case is that Lenio was also charged, in Count II, for criminal defamation of Jews. Here is the prosecutor’s logic:

… Lenio communicated numerous defamatory comments to kill Jewish people and asserts Jewish people have degraded the national economy. Lenio does not demonstrate how defamatory statements directed at a religious group of people unconstitutionally captures more protected speech than defamatory threats against an individual. As provided in the Affidavit, Lenio states the holocaust was a lie and it is “time to hunt the Nazi hunters.” This is merely one example of Lenio’s statements intended to attack Jewish people based on religion.

Those statements seem to be statements such as:

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.

And the prosecutor is claiming that they are not just threatening but independently criminally punishable as defamatory — even if the threats had been omitted, then according to the prosecutor’s theory the threat-less statements, e.g., “#Copenhagen It’s important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag,” would still be criminal defamation. Likewise, similar statements about other groups, not just racial or religious groups but any group (professional, partisan, etc.), would be criminal, too.

4. This sort of “group libel” theory was accepted indeed by the Court in Beauharnais v. Illinois (1952), on the theory that defamation is constitutionally unprotected, so defamation of racial or religious groups is unprotected, too. But, given the First Amendment libel cases and First Amendment cases that the Court has decided since the 1960s, Beauharnais is now widely regarded as no longer good law. See, e.g., Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204 (7th Cir. 2008); Dworkin v. Hustler Magazine Inc. (9th Cir. 1989); Am. Booksellers Ass’n, Inc. v. Hudnut (7th Cir. 1985); Collin v. Smith (7th Cir. 1978); Tollett v. United States (8th Cir. 1973); and works by many scholars, including Laurence Tribe, Erwin Chemerinsky, Robert Post, Rodney Smolla, Toni Massaro, Steven Gey, and Arnold Loewy. Here’s why:

a. Opinions protected: Gertz v. Robert Welch, Inc. (1974) explained that defamation is unprotected because, though “[u]nder the First Amendment there is no such thing as a false idea,” and “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas,” “there is no constitutional value in false statements of fact.”

Thus, reputation-injuring opinions cannot be punished using a defamation statute, unless they contain false statements of fact within them. (Indeed, much of the anti-Semitic speech in Lenio’s rants is properly seen as a statement of opinion, such as whether Jews hate free speech and are known bullshitters).

b. Honest mistakes protected: Gertz also made clear that, where speech on matters of public concern is involved, punitive damages can’t be imposed without a showing that the speaker knew his factual assertion was false (or at least knew it was quite likely false). Likewise, criminal punishment cannot be imposed without such a showing of knowing falsehood (or, again, knowledge of likely falsehood, often labeled “recklessness”). Gertz allowed recovery of proven compensatory damages in non-public-figure cases on a showing of negligence, but the right analogy for criminal punishment here is civil punishment (punitive damages), not compensatory damages.

c. Even knowing falsehoods about large groups likely protected, too: Given United States v. Alvarez (2012), I think even knowing falsehoods about historical questions (the Holocaust) or economic or social matters (the behavior of large religious, ethnic, or racial groups) are constitutionally protected. Even the three Alvarez dissenters agreed that (emphasis added),

[T]here are … broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

The two Justices in concurrence took the same view. And the Justices in the plurality, who took an even more speech-protective view as to knowing falsehoods generally, would have likely endorsed this proposition. Much as the Supreme Court held in New York Times Co. v. Sullivan (1964) that alleged libels of the government are categorically protected, even without leaving it to the state to be the “arbiter of truth” on such matters, the same must be true with regard to alleged libels of large social groups.

5. The Montana criminal defamation statute, then, is unconstitutionally overbroad for reasons 4(a) and 4(b) above (it purports to punish reputation-injuring opinions and reputation-injuring honest mistakes on matters of public concern). But I think it should be unconstitutional for reason 4(c) as well — statements about racial, religious, political, and other groups should not be left for judges and juries to evaluate, and to potentially subject to criminal punishment. And given the serious constitutional problems with reading the Montana statute this way, it makes sense to read it as limited to the traditional small-group defamation context, rather than adopting the prosecutor’s unusual broad reading.

I’m one of those “kikes” that Lenio was mentioning, though unfortunately those mega banks have been slow sending me my share of the loot. And I have nothing but contempt for statements such as Lenio’s, whatever groups they might be said about. Moreover, as I mentioned, Lenio’s specific statements, with their talk of murder, might be prosecuted as true threats of criminal conduct; there are possible problems with such a prosecution as well, but at least that’s a plausible approach.

But the Montana prosecutor has deliberately chosen to go far beyond the threats argument. Instead, 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.