United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE
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,  (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).
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
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
(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 ...