No. 13741 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

A. P. MADISON, 

Plaintiff and Appellant, 

CAREY MATOVICH YUNKER, Individually 

and as Editor of the Montana Kaimin, 

the University of Montana Student 

Newspaper; The Montana Kaimin; et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward T. Dussault, Judge presiding. 

Counsel of Record: 

For Appellant: 

Boone, Karlberg and Haddon, Missoula, Montana 

Sam E. Haddon argued, Missoula, Montana 

For Respondents: 

Calton & Stephens, Billings, Montans 

Herron and Meloy, Helena, Montana 

Peter M. Meloy argud, Helena, Montana 

Bruce B. Barrett argued, Missoula, Montana 

Richard Volinkaty argued, Missoula, Montana 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary Graham argued, Missoula, Montana 

For Amicus Curiae: 

Brinton Markle, Helena, Montana 

Submitted: May 5, 1978 

Decided: fiul.2 - - r37g 

e 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff appeals from the order of the District Court, 

Missoula County, granting defendants' motion to dismiss 

plaintiff's cause of action for libel and from the entry of 

judgment for defendants. 

The present cause of action arose out of a purported 

libelous publication written by defendant Carey Matovich 

Yunker (Yunker) and published in the October 8, 1974 edition 

of the Montana Kaimin, the University of Montana student 

newspaper. In pertinent part the editorial states: 

"* * * One of the memos is from A1 Madison. 

His position, director of the University 

print shop, alone makes anything he would 

say on the matter suspect. As well, he is 

a congenital liar, an incompetent whose own 

operation has lost $103,914.89 in the last 

four years. * * *" 

On December 9, 1974, Madison filed a complaint against 

defendants in the District Court alleging defendant Yunker, 

acting in her capacity as editor of the Montana Kaimin, 

deliberately and maliciously libeled plaintiff by publishing 

false defamatory statements. Plaintiff pleaded noncompliance 

with section 64-207.1, R.C.M. 1947, (Montana's retraction 

statute) on the grounds that section is unconstitutional and 

the purported libel was not within the scope of section 64- 

207.1. 

Madison prayed for judgment in his favor and an award 

of special, general, and punitive or exemplary damages in 

the aggregate amount of $102,000. 

On December 30 and 31, 1974, defendants filed motions 

to dismiss Madison's complaint, pursuant to Rule 12(b), 

M.R.Civ.P., on the grounds the complaint failed to state a 

claim upon which relief could be granted and the District 
Court lacked jurisdiction over parties in a libel action 

until ad is on complied with section 64-207.1. The University of ~ontana's motion to dismiss was based upon the 

additional ground that no claim had been filed against the 

University of Montana pursuant to section 82-4312, R.C.M. 

1947. 

On January 31, 1975, Madison filed a motion to defer 

consideration of matters raised in the consolidated motion 

of the University of Montana pending final determination of 

the constitutionality of section 64-207.1. Madison and the 

University of Montana stipulated that the resolution of the 

constitutionality of section 64-207.1 was a condition precedent to the maintenance of any action for libel. 

On May 29, 1975, the District Court heard oral argument 

on defendants' separate motions to dismiss. Briefs in support of and in opposition to the motions to dismiss were 

filed by the parties. On December 22, 1976, the District 

Court issued an order granting defendants' motions to dismiss 

on the grounds section 64-207.1 is constitutional under the 

1972 Montana Constitution and Madison failed to demand a 

retraction pursuant to section 64-207.1, defendants being 

entitled to "* * * an opportunity to publish a retraction to 

mitigate actual or compensatory damages, if any." ~udgment 

was accordingly entered for defendants. 

The issues presented for review, as stated by appellant 

Madison, are: 

1. Does section 64-207.1, R.C.M. 1947, requiring a 

demand for retraction as a prerequisite to an action for 

libel, impose unconstitutional restraints upon personal 

liberties and rights guaranteed by Article 11, 1972 Montana 

constitution and the due process provision of the our tee nth 

Amendment to the United States constitution? 
2. Does section 64-207.1, R.C.M. 1947, have any application in a libel action founded upon publication of an 

obvious intentional falsehood? 

We are handed for determination a classic confrontation 

between basic and treasured constitutional rights, the 

freedom of speech and press guaranteed under the First Amendment of the United States Constitution, on the one hand, and 

the rights of an individual to be secure from defamation on 

the other. The pivotal determination we must make is the 

constitutional validity of section 64-207.1. For on that 

determination, all else in this case depends. It requires, 

as we said in Granger v. Time, Inc. (1977) , - Mont. , 

568 P.2d 535, 541, 34 St.Rep. 983, a "* * * careful balancing of the First Amendment freedoms of speech and press, and 

the personal dignity interests underlying the law of defamation" . 

At the outset, we set out in full the statute which is 

under attack: 

"64-207.1. Notice in writing to publisher 

of libelous or defamatory matter--opportunity 

to -- correct--defense -- and mitigation of damages. 

Before g civil action shali be commenced on 

account of 3 libelous orfamatory - publics- 

-- tion in newspaper, magazine, periodical, 

radio or television station, or cable television 

system, the libeled person shall first give 

those alleged to be responsible or liable for 

--- -- 

-- - 

the publication a reasonable opport-to 

correct the libeious or defamatory matter- Such 

opportunity shall be zven by notice in writing 

specifying the article and the statements therein 

which are claimed to be false and defamatory 

and a statement of what are claimed to be the 

true facts. The notice may also state the 

sources, if any, from which the true facts may 

be ascertained with definiteness and certainty. 

The first issue of a newspaper, magazine or 

periodical published after the expiration of 

one week from the receipt of such notice shall 

be within a reasonable time for correction. 

In the case of radio and television stations 

and cable television systems a broadcast made 

at the same time of day as the broadcast com- 
plained of and of at least equal duration, 

which is made within seven (7) days following 

receipt of such notice shall be within a reasonable time for correction. To the extent 

that the true facts are, with reasonable diligence, ascertainable with definiteness and 

certainty, only a retraction shall constitute 

a correction; otherwise the publication of the 

libeled person's statement of the true facts, 

of so much thereof as shall not be libelous 

or another, scurrilous, or otherwise improper 

for publication, published as his statement, 

shall constitute a correction within the 

meaning of this section. If it shall appear 

upon trial -- that the publication wasamer -- honest mistake or misapprehension, then a -- correction, timay published, without comment, 

-- in a position and type as prominent -- as the 

alleged libel, or in a broadcast made at the 

same time of day as the broadcast complained 

of and of at least equal duration, shall constitute a defense against the recovery of any 

damages except actual damages, ---- as well as being 

competent and material in mitigation of actual 

damases -- to the extent the correction Kblished 

-- does2so mitigate them. " (Emphasis added. ) 

The pertinent part of the Fourteen Amendment to the 

United States Constitution reads: 

"* * * No state shall make or enforce any law 

which shall abridge the privileges or immunities 

of citizens of the United States; nor shall any 

state deprive any person of life, liberty or 

property, without due process of law, nor deny 

to any person within its jurisdiction the equal 

protection of the laws." 

Article 11, 1972 Montana Constitution, has several sections which are pertinent to or have some significance in 

this case: 

"Section 3. Inalienable rights. All persons 

are born free and have certain inalienable rights. 

They include the right to a clean and healthful 

environment and the rights of pursuing life's 

basic necessities, enjoying and defending their 

lives and liberties, acquiring, possessing and 

protecting property, and seeking their safety, 

health and happiness in all lawful ways. In 

enjoying these rights, all persons recognize 

corresponding responsibilities. 

"Section 4. Individual dignity. The dignity 

of the human being is inviolable. No person 

shall denied the equal protectionof -- the 

laws. - Neither the state nor any person, firm, 

corporation, or institution shall discriminate 

against any person in the exercise of his civil 
or political rights on account of race, 

color, sex, culture, social origin or condition, or political or religious ideas. 

"Section 7. Freedom of speech, expression, 

and press. No law shall be passed impairing 

the freedom of speech or expression. Every 

person shall --- be free to speak or publish 

whatever --- he will on any subject, being responsi- 

--- ble for all abuse -- of that liberty. In 7- 

all suits 

and prosecutions for libel or slander -- the truth 

thereof may be yiven in evidence; and -- the jury, 

under the --- direction ofthe court, shall determine 

----- the law and the facts. 

"Section 16. The administration of justice. 

Courts of justice shall be open to every person, 

and speedy remedy afforded for every injury of 

person, property, or character. No person shall 

be deprived of this full legal redress for injury incurred in employment for which another 

person may be liable except as to fellow employees 

and his immediate employer who hired him if such 

immediate employer provides coverage under the 

Workmen's Compensation Laws of this state. Right 

and justice shall be administered without sale, 

denial, or delay. 

"Section 17. Due process of law. No - person 

shall be deprived -- of life, liberty, or propert 

withouFdue process -- of law." (~m~hazs supplizd.) 

It will be noted that several of the foregoing provisions 

of the Montana Constitution repeat or restate like provisions 

in the United States Constitution. For example, Article 11, 

Section 4, provides that no person shall be denied the equal 

protection of the laws. Article 11, Section 17, provides 

that no person shall be deprived of life, liberty or property 

without due process of law. Freedom of speech, of expression 

and of press is guaranteed in Article 11, Section 7. These 

state constitutional provisions, identical or nearly identical 

with like language in the United States Constitution and 

certainly identical in concept, each constitute separate 

and enforceable constitutional rights insofar as the jurisdiction of the State of Montana extends. Where state and 
federal constitutional provisions are identical, each is 

enforceable in its own respective sphere where those principles attach. See, Department of Mental Hygiene v. Kirchner 

(1965), 62 Cal.2d 586, 43 Cal.Rptr. 329, 400 P.2d 321; Emery 

v. State of Montana (1978), - Mont. , 580 P.2d 445, 35 

St.Rep. 709. 

The competing freedoms which section 64-207.1 affect are 

found in the Montana constitutional provisions. First and 

foremost of the affected provisions is Article 11, Section 7. 

Freedom of the press flowers in the language "every person 

shall be free to speak or publish whatever he will on any 

subject", but there is an accompanying thorn, "being responsible for all abuse of that liberty." 

It is noteworthy that the constitution does not define 

the clause "abuse of that liberty". However, on the books 

at the time of the adoption of the constitution was section 

64-203, R.C.M. 1947, a definition of libel. That statute 

follows : 

"Libel is a false and unprivileged publication by writing, printing * * * which exposes 

any persons to hatred, contempt, ridicule, or 

obloquy, or which causes him to be shunned or 

avoided, or which has a tendency to injure him 

in his occupation." 

We may assume therefore that an "abuse of that liberty" 

would be any publication that would fit the statutory definition of libel. We are fortified in this conclusion by the 

fact that in Article 11, Section 7, 1972 Montana Constitution, 

the section goes on to say, "in all suits and prosecutions for 

libel or slander, the truth thereof may be given in evidence, 

and the jury, under the direction of the court, shall determine the law and the facts." 

We determine, therefore, that suits for libel are recognized and preserved in the 1972 Montana Constitution. It is 

proper to turn now to determine whether there is anything in 

the First Amendment to the United States Constitution, re- 
garding freedom of the press, or the case law applying thereto, 

that allows the press a greater degree of freedom than the 

Montana Constitution, or prevents suits for libel such as 

contemplated by the Montana Constitution. 

We find from Gertz v. Robert Welch, Inc. (1974), 418 

U.S. 323 347, 94 S.Ct. 2997, 41 L Ed 2d 789, that states may 

provide for libel actions, at least where the publication is 

libelous on its face: 

"We hold that, so long as they do not impose 

liability without fault, the States may define 

for themselves the appropriate standard of 

liability for a publisher or broadcaster of 

defamatory falsehood injurious to a private 

individual. This approach provides a more 

equitable boundary between the competing concerns involved here. It recognizes the strength 

of the legitimate state interest in compensating 

private individuals for wrongful injury to reputation, yet shields the press and broadcast 

media from the rigors of strict liability for 

defamation. At least this inclusion obtains 

where, as here, the substance of the defamatory 

statement 'makes substantial danger to reputation apparent'. This phrase places in perspective the conclusion we announce today. Our 

inquiry would involve considerations somewhat 

different from those discussed above if a State 

purported to condition civil liability on a 

factual mis-statement whose content did not 

warn a reasonably prudent editor or broadcaster 

of a defamatory potential * * *." 418 U.S. at 

347, 348. 

We next turn to consider how section 64-207.1 comports 

with Article 11, Section 7, respecting the freedom of the 

press which we have already set out in full, and the provisions of Article 11, Section 16, which provides that "courts 

of justice shall be open to every person, and speedy remedy 

afforded for every injury of person, property, or character 

It is plaintiff's contention that the provisions of 

section 64-207.1 absolutely preclude a suit by a defamed 

individual and that the statutory requirement therein for 

written notice demanding a retraction is outside the 
provisions of the 1972 Montana Constitution and an impermissible limitation or restriction on the constitutional right 

of action for libel. Defendants on the other hand contend 

that the statute does not bar suits for libel, but only 

sets forth a condition precedent to maintaining a suit; 

that the effect of section 64-207.1, once followed, is to 

mitigate damages; and further, that the provision for retraction is in itself a remedy afforded by the statute to a 

libeled person. 

This Court has said that: 

"The underlying purpose of libel laws is to 

furnish a means of redress for defamation. 

Every person is entitled to enjoy his reputation unimpaired by false and defamatory 

remarks. An action for libel or slander is 

based upon a violation of this right which 

exposes a person to hatred, contempt, ridicule, or obloquy, or which causes him to be 

shunned or avoided, or which has a tendency 

to injure him in his occupation. (Citations 

omitted.) " Lewis v. Reader's Digest (1973), 

162 Mont. 401, 406, 512 P.2d 702. 

The legislature has defined what constitutes libel. Section 64-203. It has also determined who can be held liable 

for libel. Section 64-201, et seq., R.C.M. 1947. These 

statutes implement the constitutional mandate of Article 11, 

Section 7, 1972 Montana Constitution and also of Article 11, 

Section 16, of that Constitution, which provides that a 

remedy shall be available for injury to character. 

The District Court in this case dismissed Madison's complaint because Madison failed to give the required notice for 

retraction. It must be said that the District Court was 

simply following the statute, which allows no other interpretation. The statute begins with the words: "Before any 

civil action shall be commenced * * * the libeled person 

shall first give * * * notice to the libelor * * *." This 
requirement is in direct derogation of the clear and unambiguous language of Article 11, Section 16, 1972 Montana 

Constitution, which mandates that the courts of this state 

are open to every person, and a remedy afforded for every 

injury to character. 

"* * * With reference to the subjects upon 

which the Constitution speaks, its declarations are binding upon the legislature 

(citing case). Constitutional provisions 

are conclusive upon the legislature and 

prevent the enactment of any law which 

extinguishes or limits the powers conferred 

by the Constitution (citing cases)." No11 

and Kenneady v. Bozeman (1975), 166 Mont. 

504, 507, 534 P.2d 880. 

We do not find that the "right" of a libeled individual 

to obtain a retraction under section 64-207.1 is in itself 

a remedy. Remedies for "injury of * * * character" are 

found in "courts of justice" which "shall be open to every 

person". In all suits for libel, "the truth thereof may be 

given in evidence, and the jury, under the direction of the 

court, shall determine the law and the facts". Article 11, 

Sections 7 and 16, 1972 Montana Constitution. Thus, the 

state constitution fixes the right to a remedy and where it 

may be sought. The legislature is without power to provide 

otherwise. 

We therefore hold section 64-207.1, R.C.M. 1947, unconstitutional in that it is in violation of the provisions 

which we have noted of Article 11, Sections 7 and 16, 1972 

Montana Constitution. 

Having so held, there is no need for us to reach a decision as to the additional objections made by Madison to section 64-207.1 that it violates the due process clauses of 

the Montana Constitution and the Fourteenth Amendment, and 

the equal protection clause of the Fourteenth Amendment. It 
is enough to say that we have substantial doubts about the 

validity of section 64-207.1 under those provisions also, 

and that we reserve to some future time as it may become 

necessary to discuss those contentions. Nor are we required 

to discuss the second issue above stated, that the statute 

cannot apply to an obvious falsehood. 

Having determined that the statute which brought about 

the dismissal of plaintiff's suit is unconstitutional, we 

must send this cause back for further proceedings. In doing 

so, however, we are obliged to state, for guidance of the 

District Court, certain restrictions on libel suits and the 

damages obtainable therein which now apply. In doing so, 

we can perhaps obviate, or at least ease, the fears which 

will rise in the breasts of publishers, editors, and broadcasters upon publication of this opinion. 

Although the United States Supreme Court has recognized 

that a state may provide for libel suits (Gertz v. Robert 

Welch Inc., supra), there has been a substantial development 

in cases from that court which is in itself a protection to 

publishers because it limits the right to damages. These 

restrictions on damages are in themselves a deterrent to the 

barrage of libel suits that publishers might otherwise fear. 

The development begins with New York Times Co. v. 

Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L Ed 2d 686, 

95 ALR 1912. There, the United States Supreme Court found 

that the dissemination of news was so important that news 

media should be protected from libel judgments, and should 

also be shielded from their own "self-censorship" brought 

about by fear of libel suits. The Supreme Court held that 

a public official could not recover on a claim for defamation 

unless "actual malice" had been present. Implied or presumed 
malice was out. "Malice" meant publication of the defaming 

material with a "knowledge that it was false, or with reckless disregard of whether it was false or not". The burden 

of proof was on the plaintiff to prove that kind of malice 

with convincing clarity. The court found that the First 

Amendment permitted, on public issues, vehement, caustic 

and sometimes unpleasantly sharp attacks on public officials. 

In Garrison v. Louisiana (1964), 379 U.S. 64, 85 S.Ct. 

209, 13 L Ed 2d 125, the New York Times rule was extended 

to a public official's private reputation, as well as his 

public reputation. 

In Curtis Publishing Company v. Butts, and Associated 

Press v. Walker (1967), reported together in 388 U.S. 130, 

87 S.Ct. 1975, 18 L Ed 2d 1094, reh.den. 389 U.S. 889 (1967), 

the court extended the New York Times rule to public figures. 

"Public figures" are defined in Gertz v. Robert Welch, Inc., 

supra: 

"* * * For the most part those who attain this 

status have assumed roles of a special prominence 

in the affairs of society. Some occupy positions 

of such persuasive power and influence that they 

are deemed public figures for all purposes. More 

commonly, those classed as public figures have 

thrust themselves to the forefront of particular 

public controversies in order to influence the 

resolution of the issues involved. In either 

event, they invite attention and comment." 418 

U.S. at 345. 

Finally, in Gertz v. Robert Welch, Inc., supra, the 

Supreme Court, while allowing states to provide for libel 

suits, erected a fence around the amount of damages recoverable: 

"We would not, of course, invalidate state law 

simply because we doubt its wisdom, but here we 

are attempting to reconcile state law with a 

competing interest grounded in the constitutional command of the First Amendment. It is 

therefore appropriate to require that state 

remedies for defamatory falsehood reach no 
farther than is necessary to protect the 

legitimate interest involved. It is necessary 

to restrict defamation plaintiffs who do not 

prove knowledge of falsity or reckless disregard for the truth to compensation for actual 

injury. We need not define 'actual injury,' as 

trial courts have wide experience in framing 

appropriate jury instructions in tort actions. 

Suffice it to say that actual injury is not 

limited to out-of-pocket loss. Indeed, the 

more customary types of actual harm inflicted 

by defamatory falsehood include impairment of 

reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by 

appropriate instructions, and all awards must 

be supported by competent evidence concerning 

the injury, although there need be no evidence 

which assigns an actual dollar value to the 

injury. 

"We also find no justification for allowing 

awards of punitive damages against publishers 

and broadcasters held liable under statedefined standards of liability for defamation. 

In most jurisdictions jury discretion over the 

amounts awarded is limited only by the gentle 

rule that they not be excessive. Consequently, 

juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation 

to the actual harm caused. And they remain 

free to use their discretion selectively to 

punish expressions of unpopular views. Like 

the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily 

exacerbates the danger of media self-censorship, 

but, unlike the former rule, punitive damages 

are wholly irrelevant to the state interest 

that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private 

fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation 

plaintiff who establishes liability under a 

less demanding standard than that stated by 

New York Times may recover only such damages 

as are sufficient to compensate him for actual 

injury." 418 U.S. at 349, 350. 

In this case, defendants have constantly referred to 

Madison as a "public official", apparently to bring this 

case under the umbrella of New York Times Co. v. Sullivan, 

supra. We are skeptical that the director of the print 

shop at the University of Montana, Missoula, Montana, is 

indeed a "public official". In Gertz v. Robert Welch, Inc., 
supra, it was held that a lawyer was not a public official, 

although he had taken on a prominent case and was by virtue 

of his profession an officer of the court. Likewise, it may 

be contended in the retrial that Madison is a "public figure". 

Whatever his status, it is a question for the jury to determine, because of the constitutional provision that the jury 

under the instructions of the court is the judge of both law 

and fact. Article 11, Section 7, 1972 Montana Constitution. 

With appropriate instructions, the jury can determine these 

matters and their status in any trial, unless otherwise 

stipulated. 

In this case, therefore, applying the rationale of the 

cases of the United States Supreme Court on damages for libel, 

if Madison is considered to be a private person, he must prove: 

(1) that the published material was false; (2) that defendants 

are chargeable with fault in the publication; and (3) that 

actual injury to him ensued, for which he may recover his 

actual damages. Moreover, (4) if he proves that the publication was made by defendants with knowledge of its falsity or 

in reckless disregard for the truth or falsities thereof, he 

may recover punitive damages for such malice, but such malice 

does not include hatred, personal spite, ill-will, or a desire to injure. New York Times Co. v. ~ullivan, supra; 

Letter Carriers v. Austin (1974), 418 U.S. 264, 94 S.Ct. 

2770, 41 L Ed 2d 745. 

If Madison is a public official or public figure, he may 

recover only if he proves the threshhold fact that the publication was made with knowledge of its falsity or reckless disregard for its truth or falsity. He could then recover his 

actual and punitive damages. 
We now, therefore, reverse the judgment and order of 

dismissal of plaintiff's complaint by the District Court and 

remand the cause to the District Court for further proceedings, 

consonant with this opinion. Costs to the plaintiff. 

We Concur: 

Chief Justice , 

\ Justice 

\ .' - 

Hon. Leonard H. Langen, District 

Judge, sitting for Mr. Justice Harrison