No. 13741 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

A. P. MADISON, Plaintiff and Appellant,

CAREY MATOVICH YUNKER, Individually and as Editor of theMontana 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

- 

## r37g Decided: fiul.2 - eMr. 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 outof a purported libelous publication written by defendant Carey Matovich Yunker (Yunker) and published in the October 8, 1974 edition of theMontana Kaimin, the University of Montana student newspaper. Inpertinent part the editorial states: 

## "*

## * * One of thememos is from A1Madison. Hisposition, director of the University print shop, alonemakes anything he would say on thematter suspect. As well, he is a congenital liar, an incompetent whose own operation has lost $103,914.89 inthe last four years. 

## * 

## * *" On December 9, 1974, Madison filed a complaint against defendants inthe DistrictCourt alleging defendant Yunker, acting inher capacity as editor of the Montana Kaimin, deliberately and maliciously libeled plaintiff by publishing falsedefamatory 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 libelwas not within the scope of section 64- 207.1. Madison prayed for judgment inhis 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 filedmotions todismiss Madison's complaint, pursuant toRule 12(b), M.R.Civ.P., on the grounds the complaint failed to state a claimupon which relief could be granted and the DistrictCourt lacked jurisdiction over parties ina libel action untilad is on complied with section 64-207.1. The Universityof ~ontana's motion todismiss 

### 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 todefer consideration of matters raised inthe 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 themaintenance of any action for libel. On May 29, 1975, the District Court heard oral argument

on defendants' separatemotions todismiss. Briefs in support of and inopposition to themotions todismiss were filedby the parties. On December 22, 1976, the District Court issued an order granting defendants' motions todismiss

on the grounds section 64-207.1 is constitutional under the 1972 Montana Constitution and Madison failed todemand a retraction pursuant to section 64-207.1, defendants being entitled to

## "* * 

## * an opportunity topublish a retraction to mitigate actual or compensatory damages, if any." ~udgment

was accordingly entered for defendants. The issues presented for review, as statedby 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, 1972Montana 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 ina libel action founded upon publication of an obvious intentional falsehood? We arehanded for determination a classic confrontation between basic and treasured constitutional rights, the freedom of speech and press guaranteed under the FirstAmendment of the United StatesConstitution, on the one hand, and the rights of an individual tobe secure from defamation on the other. The pivotal determinationwe must make is the constitutional validity of section 64-207.1. For on that determination, all else inthiscase depends. Itrequires,

as we said inGranger v. Time, Inc. (1977)

## , -Mont. 

### , 568 P.2d 535, 541, 34 St.Rep. 983, a 

## "** * careful balancing of the FirstAmendment freedoms of speech and press, and thepersonal dignity interestsunderlying the law of defamation"

# . Atthe outset, 

### we set out infull the statutewhich is under attack: "64-207.1. Notice inwriting topublisher of libelous or defamatory matter--opportunity to correct--defense and mitigation of damages. -- -- Before

### g civil action shalibe commenced on account of 

### 3

### libelousorfamatory 

### - publics- tion in newspaper, magazine, periodical, 

### -- radio or television station, or cable television system, the libeled person shall firstgive those alleged tobe responsible or liablefor 

## --- 

## -- -- - the publication a reasonable opport-to correct the libeious or defamatory matter- Such opportunity shallbe zvenby notice inwriting specifying the article and the statements therein which areclaimed tobe false and defamatory and a statement of what areclaimed tobe the true facts. The noticemay also state the sources, if any, from which the true factsmay be ascertained with definiteness and certainty. The firstissue of a newspaper, magazine or periodical published after the expirationof one week from the receipt of such notice shall be within a reasonable 

### timefor correction. In the case of radio and television stations and cable television systems a broadcast made atthe same 

### timeof day 

### as the broadcast com-

### plained of and of at least equal duration, which ismade 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 reasonablediligence, ascertainablewith definiteness and certainty,only a retraction shall constitute a correction; otherwise the publication of the libeled person's statement of the true facts, of somuch 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, timaypublished, 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

# asbeing 

### ---- competent and material inmitigation of actual damases to the extent the correctionKblished 

### -- does2somitigate them.

### " (Emphasisadded.) -- 

### 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, 1972Montana Constitution,has several sections which are pertinent to or have some significance in this case: "Section 3. 

### Inalienablerights. 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 orreligious ideas.

"Section 7. 

### Freedom of speech, expression, and press. No law shallbe passed impairing the freedom of speech or expression. Every 

### person shall

### be free to speak or publish 

### --- whatever 

### --- he

### willon 

### any subject, being responsi- ble for allabuse of that liberty. In all 

### suits 

### --- -- 7- 

### and prosecutions for libelor slander the truth 

### -- thereof 

### maybe yiven inevidence; and thejury, 

### -- under the direction ofthecourt, shalldetermine 

### --- the law and the facts. 

### -----

"Section 16. The administration of justice. Courts of justice shallbe open toevery person, and speedy remedy afforded for 

### every injury of person, property,

# or character. No person shall be deprived of this fulllegal redress for injury incurred inemployment forwhich another person may be liable except as 

### tofellow 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 shallbe administered without sale, denial, ordelay. "Section 17. Due process of 

### law. No -

### person shallbe deprived of 

### -- life, liberty, orpropert withouFdue process 

### -- of law." (~m~hazs supplizd.) It

### willbe noted that severalof the foregoing provisions of theMontana Constitutionrepeat or restate likeprovisions intheUnited States Constitution. For example, Article 11, 

### Section 4, 

### provides thatno person shallbe denied the equal protection of the laws. Article 11, 

### Section 17, provides thatno person shallbe deprived of life, liberty or property without due process of law. Freedom of speech, of expression and of 

### press is 

### guaranteed inArticle 11, 

### Section 7. 

### These state 

### constitutional provisions, identical or nearly identical with like language intheUnited StatesConstitution and certainly identical inconcept, each constitute separate and enforceable constitutionalrights insofar as thejurisdictionof the Stateof Montana extends. Where stateandfederal constitutionalprovisions areidentical, each is enforceable inits 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 constitutionalprovisions. First and foremost of the affected provisions isArticle 11, Section 7. Freedom of the press flowers inthe language "every person shall be free to speak or publish whatever he 

### willon any subject", but there is an accompanying thorn, "being responsible for allabuse of that liberty." It isnoteworthy that the constitution does not define the clause "abuse of that liberty". However, on the books atthe 

### timeof the adoption of the constitutionwas section 64-203, R.C.M. 1947, a definitionof libel. That statute follows: "Libel is

### a falseand unprivileged publicationby writing, printing 

## * 

## * * which exposes any persons tohatred, contempt, ridicule, or obloquy, or which causes him tobe shunned or avoided, orwhich has a tendency to injurehim inhis occupation." Wemay assume therefore that an "abuse of that liberty" would be any publication thatwould fitthe statutory definition of libel. Wearefortified inthis conclusion by the fact that inArticle 11, Section 7, 1972 Montana Constitution, the section goes on to say, "inallsuitsand prosecutions for libelor slander, the truth thereof may be given inevidence, and the jury, under the direction of the court, shalldetermine the 

### lawand the facts." We determine, therefore, that suitsfor libel are recognized and preserved inthe 1972Montana Constitution. It is proper toturn now todetermine whether there is anything in the FirstAmendment tothe United StatesConstitution, 

### 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 leastwhere the publication is libelous on its face: "Wehold that, so long as they do not impose liabilitywithout fault, the Statesmay 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 inquirywould involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factualmis-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 1972Montana 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: "Theunderlying 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 rightwhich 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. Ithas also determined who can be held liable for libel. Section 64-201, et seq., R.C.M. 1947. These statutes implement the constitutionalmandate of Article 11, Section 7, 1972Montana 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. Itmust be said that the District Court was simply following the statute, which allows no other interpretation. The statute begins with the words: "Beforeany 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, 1972Montana 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 lawwhich extinguishes or limits the powers conferred by the Constitution (citingcases)." 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 retractionunder section 64-207.1 is in itself

a remedy. Remedies for "injuryof 

## * * * character" are found in "courts of justice" which "shallbe 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, 1972Montana 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. Itis 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

### timeas it may become necessary todiscuss those contentions. Nor arewe required todiscuss the second issue above stated, that the statute cannot apply toan obvious falsehood. Having determined that the statutewhich brought about the dismissal of plaintiff's suitisunconstitutional, 

### we must send this cause back for further proceedings. Indoing so, however, we areobliged to state, for guidance of the DistrictCourt, certainrestrictions on libel suitsand the damages obtainable therein which now apply. In doing so,

we can perhaps obviate, or atleast ease, the fearswhich 

### willrise inthe breasts of publishers, editors, and broadcastersupon publication of this opinion. Although the United States Supreme Court has recognized that a statemay provide for libel suits (Gertz v. Robert Welch Inc., supra), there has been a substantial development incases from that courtwhich is initself a protection to publishers because it 

### limitsthe right todamages. These restrictions on damages 

### are inthemselves a deterrent to the barrage of libel suits thatpublishers 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 libeljudgments, and should alsobe 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 "actualmalice" had been present. Implied or presumed

### malice was out. "Malice"meant publication of the defaming material with a "knowledgethat itwas false,or with reckless disregard of whether itwas 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 figureshave 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:"Wewould 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 FirstAmendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach nofarther than isnecessary toprotect the legitimate interest involved. It 

### isnecessary torestrict defamation plaintiffswho do not prove knowledge of falsity orreckless disregard for the truth tocompensation for actual injury. 

### Weneed not define 'actual injury,' as trialcourts have wide experience inframing appropriate jury instructions intortactions. 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 inthe community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and allawards 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 alsofind no justification for allowing awards of punitive damages against publishers and broadcasters held liableunder statedefined standards of liability for defamation. Inmost jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages inwholly unpredictableamounts bearing no necessary relation tothe actualharm caused. And they remain free touse their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion toaward punitive damages unnecessarily exacerbates thedanger of media self-censorship, but, unlike the former rule, punitive damages arewholly irrelevant tothe stateinterest thatjustifies 

### a negligence standard for private defamation actions. They arenot compensation for injury. Instead, they areprivate fines levied by civiljuries topunish reprehensible conduct and todeter its future occurrence. In short, the private defamation plaintiff who establishes liabilityunder a lessdemanding standard than that statedby 

### New York Timesmay recover only such damages as are sufficient tocompensate him for actual injury." 418 U.S. at349, 350. In this case, defendants have constantly referred to Madison as a "public official", apparently tobring this

caseunder the umbrella of New York Times Co. v. Sullivan, supra. Weare skeptical that the director of the print shop atthe 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 thatMadison is a "public figure". Whatever his status, it is a question for the jury todetermine, because of the constitutionalprovision 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 inany 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 isconsidered tobe a private person, he must prove: (1)that the published material was false; (2) that defendants

arechargeable with faultinthe publication; and (3) that actual injury tohim ensued, for which he may recover his actual damages. Moreover, (4) if he proves that the publicationwas made by defendants with knowledge of its falsity or inreckless 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 orpublic figure, he may

recover only if he proves the threshhold fact that the publicationwas made with knowledge of its falsityor 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. JusticeHarrison