Trying to Make Speech a Crime
Kirtley, Jane, American Journalism Review
Mention the word "libel" to most journalists, and it conjures up nightmare scenarios of protracted civil suits launched by powerful plaintiffs, culminating in big money judgments rendered by resentful juries against news organizations.
But that's only part of the story. Lurking in the statute books of more than half the states are laws that make it a crime to publish or broadcast false and defamatory statements. Penalties include fines, jail time or both.
Historically, these statutes were intended to prevent public disorder by punishing reckless falsehoods that might incite duels, riots or other acts of revenge. They also tried to ensure that only "right-thinking" people expressed critical opinions about the government by allowing libel defendants to cite truth as a defense only if they could also show that they acted with "good motives and justifiable ends."
Most of these statutes are clearly unconstitutional by modern standards. A 1964 U.S. Supreme Court case, Garrison vs. Louisiana, decided the same year as the landmark New York Times vs. Sullivan, held that truthful criticism of public officials is absolutely protected from criminal as well as civil defamation charges. But the court did not address the question of whether criminal libel was unconstitutional in purely private defamation actions.
In the wake of Garrison, several state legislatures repealed criminal defamation laws, and some state courts struck them down. But Montana's law stayed on the books. And so in 1994, when Richard Helfrich was prosecuted for stalking after he distributed about 100 fliers in the Butte area alleging that another man had committed a crime, he was also charged with violation of the criminal defamation law.
Helfrich was convicted of both charges. On appeal, he argued that the statute was unconstitutional because it allowed him to be convicted of a crime based on a standard less rigorous than in a civil libel suit. The Montana law permitted him to assert truth as a defense, but only if he could show he had communicated the information with "good motives and for justifiable ends."
The Montana Supreme Court agreed with Helfrich. It ruled unanimously that the state legislature could not dilute the constitutional requirement that truth is an absolute defense to any libel claim by requiring the speaker to demonstrate that he had good motives for saying what he did. …