But Montana criminal libel law does not seem to require such knowledge or recklessness as to the falsity of the statement. The statute provides (emphasis added):
(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 … 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.
The statute expressly requires knowledge that the statement tends to expose a person to hatred, contempt and the like. It allows (under the rubric of “fair comment”) the expression of defamatory opinions if they are made “in good faith.” But it doesn’t require a showing that the person made a factual allegation with knowledge of its falsehood. And while Montana criminal law generally requires a showing of at least negligence as to each “element” of the crime, (a) it’s not clear that the defense of truth is an “element,” and (b) under the Court’s First Amendment libel law, a showing of negligence is not sufficient for a conviction.
Myers (represented by Montana First Amendment lawyer Matthew Monforton) has now moved for a preliminary injunction, arguing that the Montana statute violates the First Amendment both on its face and as applied to Myers. I expect the Montana government defendants to argue that the statute should be read as implicitly requiring knowledge or recklessness as to falsehood, but, as Myers’s brief notes (pages 16 to 18), state courts considering criminal libel statutes have been reluctant to read such language into them. I predict that the statute will be struck down.
If the statute is struck down, though, the Montana legislature would then be free to reenact it with the knowledge/recklessness requirement added. I don’t know if there will be enough political interest in doing that; but the Minnesota legislature did reenact its state criminal libel law last year after it was struck down as overbroad — the new Minnesota version is limited to a statement made with “knowledge of its false and defamatory character” (emphasis added).