NO. 95-333
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICHARD HELFRICH,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, or.; Cannon & Sheehy,
Helena, Montana (argued)
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Ass't Attorney General, (argued)
Helena, Montana
Brad Newman, Deputy Silver Bow County Attorney,
Butte, Montana
Heard: May 2, 1996
Submitted: May 16, 1996
Decided: August 9, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Richard Helfrich (Helfrich) appeals from the judgment entered
by the Second Judicial District Court, Silver Bow County, accepting
Helfrich's conditional guilty pleas to the misdemeanor offenses of
criminal defamation and stalking. Pursuant to § 46-12-204(3), MCA,
Helfrich reserved the right to appeal from the District Court's
order denying his motion to dismiss the charges. We reverse and
remand.
The following issues are raised on appeal:
1. Is § 45-8-212, MCA, which defines the offense of criminal
defamation, unconstitutionally overbroad?
2. Did the District Court err in denyinq Helfrich's motion
to dismiss the charge of stalking?
O n or about May 30 or May 31, 1994, Helfr .ich distributed
fliers in various locations in Silver Bow County , Montana. The
fliers alleged that a named individual had engaged in criminal
conduct. Based on Helfrich's distribution of the fliers, the
Silver Bow Deputy County Attorney filed two complaints in Justice
Court, the first alleging that Helfrich committed the offense of
criminal defamation in violation of 5 45-E-212(2), MCA, and the
second alleging that Helfrich committed the offense of misdemeanor
stalking in violation of § 45-5-220(l) (b), MCA. A bench trial was
held in Justice Court and the court found Helfrich guilty of both
offenses.
Helfrich appealed his convictions to the District Court and
filed a motion to dismiss the charges of defamation and stalking on
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the grounds that the criminal defamation statute is
unconstitutional and that his actions did not constitute stalking
within the meaning of the stalking statute. The District Court
denied the motion to dismiss and Helfrich entered conditional
guilty pleas reserving his right to appeal. This appeal followed.
1. Is § 45-8-212, MCA, which defines the offense of criminal
defamation, unconstitutionally overbroad?
In reviewing the constitutionality of a statute enacted by the
legislature, this Court presumes that the statute is
constitutional. State v. Lilburn (1994), 265 Mont. 258, 266, 875
P.2d 1036, 1041, cert. denied, 115 S.Ct. 7.26 (1995) (citing Montana
Auto Ass'n v. Greeley (1981), 193 Mont. 378, 382, 632 P.2d 300,
3031. The reviewing Court must adopt a construction of the statute
which renders the statute constitutional in preference to one which
renders it invalid. Monroe v. State (1994), 265 Mont. 1, 3, 873
P.2d 230, 231. The party challenging the constitutionality of the
statute carries the burden of proof. Monroe, 873 P.2d at 231; GBN,
Inc. v. Montana Dep't of Revenue (1991), 249 Mont. 261, 265, 815
P.2d 595, 597.
In reviewing statutes which have been challenged under the
doctrine of overbreadth, this Court has stated that:
"[AIn individual whose own speech or expressive conduct
may validly be prohibited or sanctioned is permitted to
challenge a statute on its face because it also threatens
others not before the court--those who desire to engage
in legally protected expression but who may refrain from
doing so rather than risk prosecution or undertake to
have the law declared partially invalid." Brockett v.
Spokane Arcades, Inc. 11985) I 14721 U.S. 14911, 15041,
105 S.Ct. 2794, 2802, 86 L.Ed.2d 394, 405-406. Thus, the
statute may be unconstitutional on its face even though
it would be constitutional as applied to appellant.
3
State v. Lance (1986), 222 Mont. 92, 99, 721 P.2d 1258, 1263. The
statute at issue, 5 45-8-212, MCA, provides:
(1) Defamatory matter is anything which exposes a
person or a group, class, or association to hatred,
contempt, ridicule, degradation, or disgrace in society
or injury to his or its business or occupation.
(2) Whoever, with knowledge of its defamatory
character, orally, in writing, or by any other means
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 and is
communicated with good motives and for justifiable ends;
(b) the communication is absolutely privileged;
Cc) 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 such interest or duty.
(4) No person shall 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 defamatory or upon
a plea of guilty. [Emphasis added.1
In the instant case, Helfrich contends that 5 45-E-212, MCA,
is overbroad because the statute allows a criminal conviction for
an alleged defamation by a lesser standard than that which is
required in a civil action for defamation. In a civil action,
truth is an absolute defense barring any recovery by the plaintiff.
New York Times, Co. v. Sullivan (1964), 376 U.S. 254, 277-78, 84
S.Ct. 710, 724-25, 11 L.Ed.2d 686. Helfrich contends that truth
should also be an absolute defense to a criminal prosecution for
defamation. He notes, however, that under § 45-E-212(3), MCA,
4
truth alone is not sufficient. Rather, the statute requires not
only a showing of truth but also a showing that the alleged
defamatory matter "is communicated for good motives and for
justifiable ends."
In Madison v. Yunker (1978), 180 Mont. 54, 67, 589 P.2d 126,
133, this Court adopted the defamation standard set forth in hew
York Times. One of the principles established in New York Times is
that truth is an absolute defense.l Helfrich argues, relying on
New York Times, that a showing of good motives and justifiable ends
is not required to defend a civil defamation action and such a
showing should not be required to avoid criminal liability
As the State concedes, the vast majority of courts which have
addressed the constitutionality of criminal defamation statutes
which require, as a defense, that the alleged defamatory material
be communicated with good motives and for justifiable ends, have
declined to judicially narrow the statutes and, therefore, have
found such statutes to be unconstitutional. e.q.,
See Tollett v.
United States (8th Cir. 1973), 485 F.2d 1087; Gottschalk v. State
(Alaska 1978), 575 P.2d 289; Weston v. State (Ark. 1975), 528
S.W.2d 412; People v. Ryan (Cola. lPPl), 806 P.Zd 935, cert.
1 We note that this Court has previously recognized that "the
truth of a defamatory statement of fact is a complete defense to an
action for defamation." Griffin v. Opinion Publishing Co. (19431,
114 Mont. 502, 507, 138 P.2d 580, 584. However, later in that
opinion, the Court also stated that "[elvery person has a right to
comment on matters of public interest and general concern, provided
he does so fairly and with an honest purpose." To the extent that
this statement can be interpreted to require the defendant to prove
good faith and justifiable ends as a defense, it is expressly
overruled.
5
denied, 502 U.S. 860; Commonwealth v. Armao (Pa. 1972), 286 A.2d
626; Eberele v. Municipal Court (Cal. Ct. App. 1976), 127 Cal.Rptr.
594; State v. Powell (N.M. Ct. App. 19921, 839 P.zd 139. For
example, the Pennsylvania Supreme Court declined, as a wholly
inappropriate judicial activity, the state's request that the court
Ila-CC0bi and, in effect, redraft Pennsylvania's criminal libel
statute to comport with the First Amendment. Armao, 286 A.2d at
632.
In Armao, the Pennsylvania Supreme Court stated that "[hlence,
under present Pennsylvania law, a conviction for, criminal libel
could conceivably be based on a true statement, published
maliciously, for non-justifiable ends tending to disgrace and
degrade the libeled person." Armao
, 286 A.Zd at 628 n.7. The
court held that "the statutory language makes no provision for
truth being an absolute defense. Likewise, no recognition is given
the reckless disregard and knowing falsity standard mandated by New
York Times and Garrison [Garrison v. Louisiana (19641, 379 U.S. 64,
78, 85 S.Ct. 209, 217, 13 L.Ed.2d 1251." Armao, 286 A.2d at 629.
The Armao court concluded that:
[olnly a knowing falsity or reckless disregard of the
truth are actionable in civil defamation. It would
violate all sound and fundamental principles of justice
to have a merely negligent statement an occasion for the
imposition of criminal penalties, and the First Amendment
as interpreted by the United States Supreme Court forbids
such a result.
Armao, 286 A.2d at 632.
Similarly, in Weston, the Arkansas Supreme Court, in
interpreting a statute which, like § 45-8-212, MCA, allowed truth
as a defense only if good faith and justification were proved,
determined that the statute was unconstitutional. Recognizing
that, although the statute provided that truth “may be given in
evidence," the court nonetheless determined that this falls short
of the New York Times rule which "absolutely prohibits the
punishment of truthful criticism." Weston, 528 S.W.2d at 415
(citing Garrison, 379 U.S. at 78).
The Weston court noted that "under the rule laid down in
Garrison, truth is a defense even when the offending publication is
not made 'with good motives and for justifiable ends. .'I'
Weston, 528 S.W.2d at 415. The court rejected the state of
Arkansas' request to limit application of the libel statute to
comport with the First and Fourteenth Amendments. Accordingly, the
court held that the statute was unconstitutional "under the rulings
of the U.S. Supreme Court in New York Times v. Sullivan, supra, and
Garrison v. Louisiana, supra." Weston, 528 S.W..2d at 416.
Section 458-212(3) (a), MCA, parallels the Arkansas statute in
that it recognizes truth as a defense only if it "is communicated
with good motives and for justifiable ends." Both the Arkansas
Supreme Court and the Pennsylvania Supreme Court determined that
statutes substantially the same as Montana's were inconsistent with
the United States Supreme Court's rulings in both New York Times
and Garrison because such statutes prohibited true speech unless
"communicated with good motives and justifiable ends." As the
Weston court recognized, truth is a defense even when the offending
publication is not made "with good motives and for justifiable
ends." We agree with the reasoning and analysis of the Arkansas
supreme Court and the Pennsylvania Supreme Court. Like the
statutes at issue in Weston and Armao
-I § 45-8-212, MCA,
impermissibly requires the defendant to prove that the material,
even if true, was communicated in good faith and for justifiable
ends. Unlike the civil standard for defamation set forth in hew
York Times and adopted by this Court in Madison, the statute does
not allow for truth as an absolute defense.2
Article II, § 7 of the Montana Constitution provides that, in
prosecutions for libel and slander, "the truth thereof may be given
in evidence." The constitutional guarantee found in Article II, 5
7 of the Montana Constitution, stands for something more than the
proposition that truth is admissible. The provision means that, as
a matter of state constitutional law, truth alone is sufficient as
a defense--an absolute defense. The legislature cannot dilute this
basic proposition by providing that while truth may be given in
evidence, it is only a defense to a prosecution for libel or
slander if it is for good motives and for justifiable ends.
Accordingly, we determine that 5 45-8-212, MCA, is
unconstitutionally overbroad. It violates the First and Fourteenth
Amendments of the United States Constitution as interpreted by the
United States Supreme Court in New York Times and Garrison and
Article II, § 7 of the Montana Constitution because, on its face,
2
Although the record does not indicate whether the
information communicated by Helfrich was true, the truth or falsity
of the information is irrelevant as we determine that § 45-8-212,
MCA, is unconstitutional on its face.
8
the statute prohibits truthful criticism when not communicated for
good motives and justifiable ends.
2. Did the District Court err in denying Helfrich's motion
to dismiss the charge of stalking?
Helfrich argues that since his act of distributing fliers
cannot constitute criminal defamation, it likewise cannot
constitute stalking under § 45-5-220, MCA. This argument ignores
the fact that his challenges to the two statutes are not parallel.
Helfrich made a facial challenge to the criminal defamation
statute. That is, he argued, and we agree, that the criminal
defamation statute is overly broad since, on its face, it prohibits
truthful criticism when not communicated for good motives and
justifiable ends. On the other hand, his attack on the stalking
statute is an "as applied" challenge. The stalking statute is not
facially defective since it specifically does not apply to
constitutionally protected activities such as truthful
communications. The burden is on the defendant to prove that his
activity is constitutionally protected. Thus, although we assumed,
arguendo, that the fliers were true for purposes of resolving the
constitutionality of the criminal defamation statute, no such
assumption is warranted in the context of the stalking statute.
Rather, Helfrich must prove that his communication was, in fact,
true in order to set the stage for his "as applied argument."
The complaint alleged "that the Defendant, RICHARD L. HELFRICH
purposely or knowingly caused [Doe31 substantial emotional distress
3 A pseudonym has been used in place of the actual name of the
alleged victim.
9
by repeatedly harassing, threatening or intimidating [Doe1 i n
person Or by other action, specifically by posting fliers at
Various locations within Silver Bow County alleging that [Doe] has
engaged in criminal conduct." The State alleged that this conduct
constituted the crime of misdemeanor stalking in violation of 5 45-
5-220(l) (b), MCA. Section 45-5-220, MCA, provides in relevant
part:
(1) A person commits the offense of stalking if the
person purposely or knowingly causes another person
substantialemotionaldistress or reasonable apprehension
of bodily injury or death by repeatedly:
(a) following the stalked person; or
ib) harassing, threatening, or intimidating the
stalked person, in person or by phone, by mail, or by
other action, device, or method.
(2) This section does not apply to a
constitutionally protected activity.
.
In the instant case, the record does not disclose whether the
information contained in the fliers distributed by Helfrich was
true or false. As we established earlier in this opinion, true
communications are constitutionally protected; thus, truth is an
absolute defense to a prosecution for criminal defamation as well
as to a civil defamation suit
Assuming that Helfrich's fliers contained truthful information
and were otherwise lawfully posted, then the act of posting the
fliers may be a constitutionally protected activity within the
exception of 5 45-5-220(2), MCA. We say "may" because truth is not
an absolute defense to a charge of stalking. Unlike a charge of
criminal or civil defamation which focuses solely on the content of
the speech, a charge of stalking focuses on conduct which may, but
10
does not necessarily, involve speech. Depending upon the nature,
timing, context and frequency of the speech, a truthful
communication may or may not be a constitutionally protected
activity under 5 45-S-220(2), MCA. That "you cheated on your tax
return" may be a truthful statement but that does not necessarily
mean that I have the right to telephonically remind you of that
fact every morning at 2:00 a.m. A jury may well consider such
conduct to be harassment under the stalking statute.
In the present case we are not called upon to decide whether
a particular truthful statement contained in a flier is
constitutionally protected from a stalking charge because there has
been no threshold allegation or determination that the statement in
question was truthful. To qualify as protected speech, it must at
least be truthful. Beyond that, there must be a determination as
to whether, albeit truthful, the statement is an element of conduct
which is harassing, intimidating or threatening within the purview
of the stalking statute. Even though the conduct may include
protected speech, the State's interest in shielding the victim from
such conduct may outweigh the defendant's constitutional
protections. As Helfrich concedes, under Madison, not all speech
is protected. Madison, 589 P.2d at 130; State v. Cooney (1995),
271 Mont. 42, 48-49, 894 P.Zd 303, 307. For example, this Court
has held that threats are not protected speech under the Fifth
Amendment. Coonev, 894 P.2d at 307 (citing Lance, 721 P.2d at
1266). We also recognized that "[tlhere are certain well-defined
and narrowly limited classes of speech, the prevention and
11
punishment of which have never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, [and] the libelous. . . 'I Lance, 721 P.Zd at 1265
(quoting Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 571-72,
62 S.Ct. 766, 768-69, 86 L.Ed. 1031). Activities which are
intended to embarrass, annoy or harass are not protected by the
First Amendment. People v. Holt (Ill. 1995), 649 N.E.2d 571, 581
(citing Colten v. Kentucky (1972), 407 U.S. 104, 109, 92 S.Ct.
1953, 1956, 32 L.Ed.Zd 584) (holding that actions taken solely to
annoy and inconvenience are not given constitutional protection).
On the other hand, if the information in Helfrich's fliers
were false or not lawfully posted, it would not qualify as a
constitutionally protected activity and the § 45-5-220(Z), MCA,
exception would not prohibit a prosecution for stalking.
Without expressing any views as to whether the posting of
truthful fliers constitutes the crime of stalking or is a
constitutionally protected activity, we remand this matter pursuant
to s 46-12-204(3), MCA, for the purpose of allowing Helfrich to
withdraw his plea of guilty to the charge of stalking and, if he so
chooses, to raise and prove that his conduct falls within the
constitutionally protected activity exception of § 45-5-220 (2),
MCA.
Reversed and remanded.
12
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