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Myers v. Fulbright

United States District Court, D. Montana, Missoula Division

March 18, 2019

ROBERT MYERS, Plaintiff,
WILLIAM E. FULBRIGHT, in his official capacity as the County Attorney for Ravalli County; TIMOTHY C. FOX, in his official capacity as Attorney General for the State of Montana, Defendants.



         Pro se Plaintiff Robert Myers seeks declaratory and injunctive relief, alleging Montana's criminal defamation statute, Montana Code Annotated § 45-8-212, is unconstitutional on its face and as applied under the United States Constitution. Defendants William Fulbright and Timothy Fox (the "State") have moved for summary judgment on all claims. (Doc. 52.) United States Magistrate Judge Jeremiah Lynch recommends the State's motion be granted and the case dismissed. (Doc. 67.) Myers filed untimely objections, [1] (Doc. 71), to which the State responded, (Doc. 72). Myers is entitled to de novo review of the specific findings and recommendations he identified in his objections, 28 U.S.C. § 636(b)(1), while the remaining findings and recommendations are reviewed for clear error, McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." Concrete Pipe & Prods. of Cal, Inc. v. Constr. Laborers Pension Tr. for S. CaL, 508 U.S. 602, 623 (1993) (internal quotation marks omitted).

         Myers raises six objections to Judge Lynch's findings, arguing it was error to (1) judicially construe the statute to include an actual malice standard; (2) conclude that there was not an intent element, which made the statute ambiguous; (3) apply Montana's reasonable doubt burden of proof; (4) ignore Myers's vagueness argument; (5) assume the statute as written does not conflict with First Amendment precedent; and (6) fail to address the constitutionality of the claims presented in his Response to Summary Judgment, (Doc. 62). (Doc. 71.) Myers is a disbarred lawyer proceeding on his own behalf. Despite his legal background, his pro se status requires his filings be construed liberally, see Bernhardt v. LA. Cty., 339 F.3d 920, 925 (9th Cir. 2003), complicating review of his objections. In light of his status, Myers' objections are considered specific enough to elicit de novo review in those areas identified. Ultimately, § 45-8-212 is substantially overbroad because it does not include an actual malice requirement, see N.Y.Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Garrison v. Louisiana, 379 U.S. 64, 67 (1964), and its overbreadth cannot be cured by a narrowing interpretation. Accordingly, the Court need not address his remaining objections.

         A defamatory statement must be "made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." N.Y. Times, 376 U.S. at 279-80; see also Garrison, 379 U.S. at 78. Myers argues that the Montana law is facially invalid because it does not include an "actual malice" requirement. Montana's criminal defamation law 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 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.
(4) A person may not be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as ...

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