The prosecutor’s office in Flathead County, Montana (where Kalispell is located) is arguing that speech that exposes Jєωs — 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.

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