United States District Court, D. Montana, Missoula Division
FINDINGS & RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge.
Plaintiff 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 for summary judgment on all claims.
For the reasons set forth below, the State's motion
should be granted and this case should be dismissed.
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.
on those advertisements, the Montana Office of Disciplinary
Counsel (“ODC”) filed two professional misconduct
complaints against Myers, accusing him of making false
statements about Judge Langton during the campaign. Following
a hearing in July 2017, the Montana Commission on Practice
found that Myers had violated the Montana Rules of
Professional Conduct and the Montana Code of Judicial
Conduct. The Montana Supreme Court adopted the
Commission's findings, and disbarred Myers from the
practice of law in Montana. In the Matter of Robert C.
Myers, Mont. Sup. Ct., PR 17-0026 (Dec. 28, 2017).
meantime, in May 2017 while the ODC disciplinary complaints
were still pending, Myers learned that the Missoula County
Sheriff's Department was investigating a criminal
defamation complaint filed against him by Judge Langton based
on the statements in his campaign advertisements. Shortly
after learning of the investigation, Myers commenced this
action bringing both facial and as-applied First Amendment
claims challenging the constitutionality of Montana's
criminal defamation statute. This Court has previously held
that Myers has Article III standing to proceed with both
claims. The State moves for summary judgment on the ground
that Montana's criminal defamation statute is
constitutional both on its face and as applied to Myers.
Summary Judgment Standards
Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The party
seeking summary judgment bears the initial burden of
informing the Court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of any genuine issue of material fact.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
A movant may satisfy this burden where the documentary
evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251
the moving party has satisfied its initial burden with a
properly supported motion, summary judgment is appropriate
unless the non-moving party designates by affidavits,
depositions, answers to interrogatories or admissions on file
“specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. 317, 324 (1986).
The party opposing a motion for summary judgment “may
not rest upon the mere allegations or denials” of the
pleadings. Anderson, 477 U.S. at 248.
considering a motion for summary judgment, the court
“may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477
U.S. at 249-50. The Court must view the evidence in the light
most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party's favor.
Anderson, 477 U.S. at 255; Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21
(9th Cir. 2007).
criminal defamation statute, Mont. Code Ann. § 45-8-212,
provides as follows:
(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 ...