United States District Court, D. Montana, Missoula Division
FINDINGS & RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge.
Robert Myers brings this action for declaratory and
injunctive relief seeking a determination that Montana's
criminal defamation statute, Montana Code Annotated §
45-8-212, is unconstitutional on its face and as applied
under the First Amendment to the United States Constitution.
Defendants William Fulbright and Timothy Fox ("the
State") have moved under Federal Rule of Civil Procedure
12(b)(1) to dismiss for lack of subject matter jurisdiction
based on lack of standing. For the reasons set forth below,
the State's motion to dismiss should be denied.
2016, Myers ran unsuccessfully against Judge Jeffrey Langton
for the position of district judge for the Montana
Twenty-First Judicial District Court, Ravalli County. During
his campaign, Myers claimed that Judge Langton was unfit for
office and ran several advertisements accusing him of abusing
his power as a judge. The advertisements accused Judge
Langton of, among other things, purchasing and using illegal
drugs, and drinking alcohol with minors.
one month after Myers announced his candidacy, the Montana
Office of Disciplinary Counsel ("ODC") filed the
first of three complaints against Myers. The first complaint,
filed in April 2016, alleged professional misconduct based on
Myers' conduct a few years earlier during a domestic
relations case presided over by Judge Langton. (Doc. 1-2).
The second complaint, filed in July 2016, accused Myers of
engaging in professional misconduct during the campaign by
making false statements about Judge Langton in a radio
advertisement. (Doc. 1-5). The third complaint, filed in
January 2017, similarly accused Myers of engaging in
professional misconduct by making false statements about
Judge Langton in a number of other campaign advertisements.
began preparing his defense to the ODC complaints, and
attempting to locate and interview witnesses to corroborate
his campaign statements about Judge Langton's conduct. In
early May 2017, a detective from the Missoula County Sheriffs
Department informed Myers that he was investigating a
criminal defamation complaint filed against him by Judge
Langton based on the statements in Myers' campaign
advertisements. The detective identified three individuals he
was seeking to interview as part of the investigation. Myers
explained that he had been "very careful" while
preparing his campaign advertisements, and had obtained
affidavits from each of those individuals to support his
statements about Judge Langton. (Doc. 32, at 14).
few days later, on May 4, 2017, Myers commenced this action
challenging the constitutionality of Montana's criminal
defamation statute, Mont. Code Ann. § 45-8-212, on First
Amendment grounds. (Doc. 1). That statute provides:
(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,
orally, in writing, or by any other means, including by
electronic communication, as defined in 45-8-213,
communicates any defamatory matter to a third person without
the consent of the person defamed 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
(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 ...