IN THE SUPREME COURT OF THE STATE OF MONTANA 

JOHN A. LENCE and JOHN A. LENCE, P.C. 

a Montana professional corporation, 

Plaintiffs and Appellants, 

HAGADONE INVESTMENT CO., a Nevada 

Corporation, d/b/a INTER LAKE 

PUBLISHING CO., DANIEL BLACK, 

JACQUELINE L. ADAMS, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Alan J. Lerner, Attorney at Law, Kalispell, Montana 

Larry M. Elison, Attorney at Law, Missoula, Montana 

(argued) 

For Respondents: 

Gary R. Christiansen; Warden, Christiansen, Johnson 

& Berg, Kalispell, Montana 

Robert C. Bernius; Nixon, Hargrave, Devans & Doyle, 

Washington, D. C. (argued) 

Submitted: December 10, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from summary judgment granted by the 

District Court of the Eleventh Judicial District, County of 

Flathead, the Honorable ~ichael H. Keedy presiding. Appellant John 

A. Lence (Lence) sued the respondents (collectively, Inter Lake) in 

June 1989 for damages arising from libel, false light invasion of 

privacy, intentional and negligent infliction of emotional 

distress, and negligence. Inter Lake answered Lencels complaint in 

July 1989, and in July 1990 filed a motion for summary judgment. 

In January 1992 the court issued a memorandum and order granting 

the motion, and Lence appealed. We affirm. 

Lence's claims are based on three articles published in the 

Daily Inter Lake in November 1988 and April 1989, on two unrelated 

matters. Lence included all three articles in his complaint, and 

all three are considered here. 

The 1988 Article 

On November 30, 1988, the ~ailv Inter Lake published an 

article, under the heading "Lawyer-client dispute probed," 

reporting that the Montana Supreme Court's Commission on Practice 

was looking into uallegations of fraud and professional misconduct 

on the part of Kalispell attorney John A. Lence." The article 

stated that local building contractor L. Craig Semenza (Semenza) 

had filed a complaint against Lence with the "high court," alleging 

fraud, professional misconduct, and failure to pay $67,511 for 

Semenza's work remodelling Lence's office. 

2 
The article also stated that Semenza had been charged in 

September 1988 with criminal mischief after someone flooded Lence's 

offices with a garden hose inserted through a hole drilled in the 

ceiling; that the county attorney was dropping this charge against 

Semenza because of insufficient evidence; that Lence had handled 

legal matters for Semenza's contracting business; and that Semenza 

had fired Lence and wanted to bring a theft charge against him 

because he had refused to give Semenza access to his corporate 

records. 

Lence's attorney, Alan Lerner, wrote to the Daily Inter Lake 

demanding a retraction. Mr. Lernerls letter identified the 

portions of the article that Lence considered defamatory and 

included statements describing the "true facts." Inter Lake 

published these statements on December 11, 1988, under the heading 

"Attorney takes exception to DIL [Daily Inter Lake] story." 

Lence objected particularly to the second paragraph of the 

article, which stated that Semenza had filed his complaint with 

"the high court." In reality, of course, Semenza had filed his 

complaint with the Commission on Practice (Commission). Under the 

Montana Supreme Court Rules for Lawyer Disciplinary Enforcement, 

only the Commission may file a formal complaint against a lawyer. 

When the author of the 1988 article, respondent Jacqueline 

Adams (Adams), spoke with Semenza, the proceedings before the 

Commission were confidential, pursuant to Rule 13 of the Rules for 

Lawyer Disciplinary Enforcement, because no formal complaint had 

been filed. But because Semenza approached Adams with the 
information and gave her a copy of this complaint, he, not she, 

violated the rule of confidentiality. The 1988 article was 

defamatory, Lence argues, because: 

The Dailv Inter Lake's use of the words "high court" 

falsely informed all other attorneys reading the story 

that there was credible evidence to support the 

conclusion that [Lence] had committed fraud and was 

guilty of professional misconduct. 

Lence complained that Adams had published the story without 

giving Lence an opportunity to comment and without investigating 

Semenza's allegations. Adams acknowledged these omissions in her 

deposition and stated: 

The story was based on the complaint filed with the 

Commission on Practice. And just as I would not contact 

people named in a civil suit about their part in it, I 

would not contact those named in a complaint to the 

Commission on Practice. It's not my job to determine 

who's calling who names and who's right. 

Lence also objected to the article's failure to state that 

charges against Semenza, for flooding Lence's office, were to be 

dropped without prejudice. According to Lence, this omission 

implied that the county attorney had found no evidence against 

Semenza. In reality, he says, the county attorney "was not 

convinced of Semenza's innocence but needed time to obtain more 

evidence." 

Adams admitted in her deposition that she knew before the 

article was publishedthat charges against Semenza had been dropped 

without prejudice, and she agreed that the article would have been 

slightly less favorable to Semenza had she included and explained 

the phrase "without prejudice." She did not do that, she said, 

because "the deadline was at hand" when she learned of the 
dismissal, and because she expected to write another story later, 

"when the actual matter came into co~rt.~' 

On April 3, 1989 the Commission notified Semenza, with a copy 

to Lence, that it had reviewed his complaint against Lence and 

found no ethical violation or breach of the Rules of Professional 

Conduct. 

The 1989 Articles 

On April 4, 1989 Inter Lake published a short article about a 

Kalispell Board of Appeals hearing on a building permit for "the 

Main Street off ices of attorney John Lence. The article stated 

that the city judge had issued a summons to Lence, "who is charged 

with violating city codes by constructing openings in walls where 

they were prohibited." Lence had installed windows in the north 

side of the building, which was on the property line, after city 

officials had informed him that placing windows on the property 

line would violate the Uniform Building Code. 

On April 9, 1989, the newspaper reported that Lence had 

pleaded innocent to the misdemeanor charge of violating the city 

building code and that the Kalispell Board of Appeals had approved 

a no-construction easement from the adjoining property owner, which 

satisfied the building code's open space requirement for buildings 

with windows. 

At Lence's request, the newspaper printed an item in its 

"Corrections" column on April 20, 1989, stating that "GKL," a 

Montana corporation, not Lence, had been charged with a building 

code violation and explaining that Lence was the president of GKL 
and his wife, Gwendolyn K. Lence, was the secretary. 

Lence argues that the "sting" of these stories was "not that 

a violation had been alleged, but rather that [Lence], an attorney, 

had personally violated the law," and that Inter Lake should have 

known that the court files on the building code violation showed 

that GKL, not Lence, was the defendant. 

In his deposition, however, Lence stated that GKL Corporation 

was merely a holding company created for the purpose of holding 

title to the building and that his wife was the sole stockholder. 

Lence appeared before the city judge on behalf of the corporation, 

and in their correspondence on this matter, both Lence and the city 

officials referred to the building as Lence's building. 

The following issues are presented for review. 

1. Whether, in light of Article 11, section 7 of the Montana 

Constitution, the District Court erred in granting summary 

judgment . 

2. Whether the First Amendment protects newspaper articles 

about a preliminary investigation of alleged attorney misconduct 

and an alleged violation of a city building code. 

3. Whether the articles are privileged, under 5 27-1-804(4), 

MCA, as fair and true reports, without malice, of official 

proceedings. 

4. Whether the District Court erred in dismissing Lencels 

claim for false light invasion of privacy. 

5. Whether Lence's emotional distress claim duplicates his 

defamation claim. 
6. Whether Lence's negligence claim is barred as a 

restatement of the fault element of his defamation claim. 

Did the District Court err in granting summary judgment? 

Lence contends that in granting summary judgment the District 

Court erred by deciding genuine issues of material fact: by failing 

to view the evidence in a light most favorable to the opposing 

party; and by failing to consider Article 11, section 7 of the 

Montana Constitution, which provides, in part, that: 

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. 

Lence's "genuine issues of material fact" are discussed below 

in the context of the remaining issues. The procedural issue--jury 

determination of law and facts in a libel case--was disposed of by 

this Court in Griffin v. Opinion Publishing Co. (1943), 114 Mont. 

502, 138 P.2d 580, which held that it is for the court and not the 

jury to pass on motions for nonsuit, directed verdict, new trial, 

and so on, and in Williams v. Pasma (1982), 202 Mont. 66, 72, 656 

P.2d 212, 215, which cited Griffin to support the proposition that 

"there is no absolute prohibition against granting summary judgment 

in libel cases." In libel cases as in other civil cases, summary 

judgment is appropriate when there are no material issues of fact 

and the evidence supports the judgment as a matter of law. Kurth 

v. Great Falls Tribune Co. (l99l), 246 Mont. 407, 804 P.2d 393; 

Rule 56(c), M.R.Civ.P. 

As we decide here that there are no material issues of fact 

7 
and that Inter Lake is entitled to judgment as a matter of law, we 

conclude that the District Court did not err in granting summary 

judgment . 

I1 

Does the First Amendment protect the Daily Inter Lake 

articles? 

In holding that Inter Lake's report of Semenza's complaint to 

the Commission is protected by a qualified constitutional 

privilege, the District Court relied on Landmark Communications, 

Inc. v. Virginia (l978), 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1. 

In Landmark, the defendant newspaper published an article 

identifying a judge who was under investigation by the Virginia 

Judicial Inquiry and Review Commission. Like Montana's Rules for 

Lawyer Disciplinary Enforcement (Rules), the Virginia statute 

requires confidentiality of the investigation until a formal 

complaint is filed with the Virginia Supreme Court. Unlike 

Montana's Rules, the Virginia statute makes violation of the 

confidentiality rule a misdemeanor. The Virginia Supreme Court 

found the newspaper criminally liable, but the United States 

Supreme Court reversed, holding that the First Amendment does not 

permit criminal punishment of third parties, including the news 

media, for publishing truthful information about confidential 

proceedings of the Judicial Inquiry and Review Commission. 

Lence contends that the District Court's reliance on Landmark 

is misplaced because the Virginia statute imposed criminal 

penalties; the case involved a public official and a matter of "the 
most urgent governmental importance;" and the holding was expressly 

limited to the publication of truthful information. In contrast, 

Lence argues, the present case is a civil action brought by a 

private citizen and is, in LenceTs view, "a private dispute without 

social or political significance." 

By the time Landmark was decided, however, the Supreme Court 

had extended First Amendment protection to publications about 

private citizens. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 

323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Both Gertz and Landmark are 

descendants of the seminal First Amendment case, New York Times v. 

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

Sullivan, like Landmark, involved alleged defamation of a public 

official. In Gertz, the plaintiff was an attorney described in a 

magazine published by the defendant as, among other things, a 

"Leninist1' and l'Communist-fronter." No evidence supported these 

allegations. The Supreme Court held that states have a legitimate 

interest in compensating private individuals for the harm inflicted 

on them by defamatory falsehood; therefore, states may define an 

"appropriate standard of liability for a publisher of defamatory 

falseho~ds,~l so long as they do not impose liability without fault. 

Gertz, 418 U.S. at 347. See Madison v. Yunker (1978), 180 Mont. 

54, 589 P.2d 126 (following Gertz in establishing the standard of 

liability for defamation of a private person). 

In Landmark, the Supreme Court held unequivocally that the 

newspaperls publication Of accurate factual information about an 

inquiry pending before the Judicial Inquiry and Review Commission 
"served those interests in public scrutiny and discussion of 

governmental affairs which the First Amendment was adopted to 

protect." Landmark, 435 U.S. at 434. In Landmark and again in two 

cases involving private plaintiffs, the Court balanced these First 

Amendment interests against the interests served by preserving 

confidentiality and found that the latter were not sufficient to 

justify the subsequent punishment of speech. 

Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, 99 

S.Ct. 2667, 61 L.Ed.2d 399, ruled unconstitutional a West Virginia 

statute making it a crime for a newspaper to publish truthful 

information concerning the identity of juvenile offenders. The 

Florida Star v. B.J.F. (1989), 491 U.S. 524, 109 S.Ct. 2603, 105 

L.Ed.2d 443, held that where a newspaper had obtained a rape 

victim's name from a police report distributed to the press, a 

Florida statute making publication of the victim's name unlawful 

was unconstitutional. "[Wlhere a newspaper publishes truthful 

information which it has lawfully obtained, punishment may lawfully 

be imposed, if at all, only when narrowly tailored to a state 

interest of the highest order." The Florida Star, 491 U.S. at 541. 

If the public's interest in the dissemination of truth 

outweighs the state's interest in protecting the privacy of rape 

victims or juvenile offenders, then surely the public's interest in 

accurate information about attorney discipline outweighs the 

state's interest in preservingthe confidentiality of Commission on 

Practice investigations, where, as here, the press obtained the 

information lawfully. Thus, Lence cannot recover unless he can 
establish that the published inf omation was false. "A privatefigure plaintiff must bear the burden of showing that the speech at 

issue is false before recovering damages for defamation from a 

media defendant.'' Philadelphia Newspapers, Inc. v. Hepps (1985), 

475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 793. 

Lence contends that the published information in this case was 

neither truthful nor accurate and that the "irresponsible 

publication of false information is not privileged communication 

protected by the First Amendment. '' By "false information, he 

means the 1988 article's reference to the "high courtv1 instead of 

the Commission on Practice; its failure to state that charges 

against Semenza had been dropped without prejudice; the implication 

that Lence had been charged with theft; and in the 1989 articles, 

the attribution of the building code violation to Lence instead of 

the GKL corporation. The evidence is sufficient, Lence argues, for 

a jury to conclude that these errors were not inconsequential or 

insignificant but instead were llgross distortions of the truth.'' 

The District Court concluded, however, that the cited errors 

were inconsequential and that the articles were substantially true. 

The 1988 article did not allege that Lence had actually committed 

acts of fraud, professional misconduct and theft, but merely 

reported accurately that Semenza had filed a complaint alleging 

such acts, and that police records indicated that Semenza had told 

the police he wanted to bring a theft charge against Lence. 

Similarly, the 1989 articles were substantially true because the 

acts on which the misdemeanor building code violations were based 
were the personal acts of Lence, not his corporation, and because 

Lence himself consistently treated his personal interests as 

identical to those of the GKL corporation. 

We conclude that Lence failed to meet his threshold burden of 

establishing the falsity of the Daily Inter Lake articles. The 

articles, therefore, are protected by the First Amendment as 

truthful information about a matter of public significance. 

Does the fair and true report privilege protect the Daily 

Inter Lake articles? 

Libel is a false and unprivileged publication. Section 27-1- 

802, MCA (emphasis added). If the publication appears to be 

privileged, the plaintiff must show that it is false. Cooper v. 

Romney (1914), 49 Mont. 119, 128, 141 P. 289, 292. Section 27-1- 

804, MCA, provides that for purposes of a defamation action, a 

Ifprivileged publicationH is one made in the proper discharge of an 

official duty, in any legislative or judicial proceeding, or: 

(4) by a fair and true report without malice of a 

judicial, legislative, or other public official 

proceeding or of anything said in the course thereof. 

The District Court concluded that under this statute, the Daily 

Inter Lake articles were privileged and therefore not defamatory. 

Whether a publication is privileged is a question of law for 

the court, where there is no dispute about the content of the 

proceedings on which the publication is based. Rasmussen V. 

Bennett (l987), 228 Mont. 106, 110, 741 P.2d 755, 758; Crane v. 

Arizona Republic (C.D. Cal. 1989), 729 F.Supp. 698, 702. Our 
review of this issue is confined to determining whether the 

District Court's interpretation of the law is correct. Steer, Inc. 

v. Deplt of Revenue (1990), 245 Mont. 470, 803 P.2d 601. 

We hold that the District Court concluded correctly that a 

preliminary Commission on Practice investigation is part of a 

judicial proceeding, and that the 1988 Daily Inter Lake article 

therefore was privileged. See Cox v. Lee Enterprises, Inc. (1986) , 

222 Mont. 527, 529, 723 P.2d 238, 240 (''judicial proceedingt1 

defined to include, for example, "any proceeding to obtain such 

remedy as the law alfowslt) . The 1989 articles, which described 

Lencels alleged violations of the Kalispell building code, clearly 

were privileged under 5 27-1-804(4), MCA. 

As Lence presented no evidence showing that the articles were 

false, and all three were privileged as a matter of law, Inter Lake 

was entitled to summary judgment. 

IV 

Did the District Court err in declining to recognize Lencets 

claim of false light invasion of privacy? 

False light invasion of privacy is (1) the publicizing of a 

matter concerning another that (2) places the other before the 

public in a false light, when (3) the false light in which the 

other is placed would be highly offensive to a reasonable person, 

and (4) the actor knew of or acted in reckless disregard as to the 

falsity of the publicized matter. Restatement (Second) of Torts 6 

6523 (1977). 

Here, Lence has no legitimate claim for false light invasion 
of privacy because he failed to establish the falsity of the Daily 

Inter Lake articles. See Restatement (Second) of Torts 5 6523, 

comment a (Itit is essential to the rule stated in this Section that 

the matter published concerning the plaintiff is not true1'). 

v 

Did the District Court err in holding that Lencels emotional 

distress claims fail? 

The District Court held that Lence could not recover for 

emotional distress because the Daily Tnter Lake statements were 

substantially true and without malice. Citing Hustler Magazine v. 

Falwell (l988), 485 U.S. 46, 108 Sect. 876, 99 L.Ed.2d 41, the 

court concluded that emotional distress claims are subject to the 

same First Amendment defenses as the libel suit. Because the 

plaintiff in Falwell was a public figure, subject to an Itactual 

malicef1 standard, while Lence is a private person, we affirm on 

this issue for different reasons. 

This Court has adopted the requirements for recovering damages 

for infliction of emotional distress that are set out in 

Restatement (Second) of Torts § 46 Comment j (1965) . First Bank v. 

Clark (l989), 236 Mont. 195, 771 P.2d 84. The victim must show 

that the defendant's tortious conduct resulted either in physical 

or mental injury or in I1a substantial invasion of a legally 

protected interest, and that it caused a significant impact, 

including emotional distress "so severe that no reasonable person 

could be expected to endure it." Clark, 771 P.2d at 91. 

Lence argues that I1untrue charges of fraud, professional 
misconduct, theft and crimeuf are lfsufficiently outrage~us'~ to 

sustain a cause of action for severe emotional distress, but he 

offers no evidence of severe emotional distress. In his deposition 

he described a visit to a hospital emergency room approximately two 

weeks after the 1988 article was published, for "stress and heartrelated problems and circulatory problemsu that he had not had 

previously. The only other evidence of distress or "significant 

impact1' is Lence's statement that he missed a meeting of a client s 

board of directors on the day after the 1988 article appeared. 

Even if Lence could legitimately plead emotional distress, the 

Daily Inter Lake articles would have had to be more than merely 

hurtful or offensive; they would have had to be ''so outrageous . . 

. as to go beyond a11 possible bounds of decency." Frigon v. 

Morrison-Maierle, Tnc. (1988), 233 Mont. 113, 123, 760 P.2d 57, 64. 

The newspaper's truthful publication that Semenza had lodged a 

complaint with the Commission, and its report of the building code 

dispute, hardly constitute outrageous conduct that goes beyond all 

possible bounds of decency. 

In the past we have characterized emotional distress as an 

element of damages rather than a distinct cause of action; see 

Frison, 760 P.2d at 63; Shiplet v. First Security Bank (2988), 234 

Mont. 166, 174, 762 P.2d 242, 247. Even if considered only for the 

purpose of establishing damages, however, Lenceps deposition 

testimony demonstrates the absence of any genuine issue of material 

fact concerning the severity of his alleged emotional distress. 
VI 

Was Lencef s negligence claim barred as a restatement of the 

fault element of his defamation claim? 

Lence argues that the District Court erred in dismissing his 

negligence claim because Itthe facts of this case present a separate 

and distinct cause of action for negligence.!! He claims that Inter 

Lake was under a duty to investigate Semenzals allegations before 

repeating them to the public, that Inter Lake owed Lence a duty of 

care in their choice of words describing the status of Semenzafs 

complaint, and that Inter Lake owed Lence a duty of confidentiality 

under Rule 13C, Montana Supreme Court Rules for Lawyer Disciplinary 

Enforcement. By disseminating Semenza's allegations without 

investigation, Lence argues, Inter Lake breached not only its 

duties to Lence but also its direct duty to keep information about 

a Commission investigation confidential. 

As a result of Inter Lake's breach of duty, Lence claims, he 

has suffered damage to his reputation and business and "extreme 

emotional harm, humiliation, and physical stress which led to a 

doctor's visit." The First Amendment does not protect a media 

defendant from suits that can be brought generally under common law 

theories of liability, Lence argues, citing Cohen v. Cowles Co. 

(1991) I - U.S. I 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586, 597 (a 

newspaper publisher "has no special privilege to invade the rights 

and liberties of others1') . Thus, Lence contends, he has a right to 

present his negligence theory of liability to a jury. 

The District Court dismissed Lence's negligence claim on the 
grounds that it "merely reiterates the fault element of the libel 

claim." We hold that Lencets negligence claim fails even if it is 

considered independently of his libel claim. 

To prevail in a negligence action, a plaintiff must prove the 

following elements: a duty owing from the defendant to himself; a 

breach of that duty; proximate causation: and damages. Scott v. 

Robson (1979), 182 Mont. 528, 535-536, 597 P.2d 1150, 1154. Here, 

Inter Lake owed no duty to Lence to investigate or to keep the 

Commission investigation confidential. Semenza's allegations, 

after all, had been made to a body authorized to investigate them. 

Adams' role was merely to let the public know that an investigation 

had been initiated, not to undertake an investigation herself. 

It is clear that Rule 13D, Montana Supreme Court Rules for 

Lawyer Disciplinary Enforcement, imposed a duty on Semenza, because 

it unequivocally requires "participants" in a disciplinary 

proceeding to "conduct themselves so as to maintain the 

confidentiality mandated by this rule. " Semenza violated this rule 

when he approached Adams with the information and gave her a copy 

of his complaint, but Adams committed no wrong in receiving the 

information. Further, the rule does not apply to an accurate 

republication of Semenza's allegations. First, as we have seen, 

the 1988 Dailv Inter Lake article is privileged under 27-1- 

804(4), MCA. See also Dameron v. Washington Magazine, Inc. (D.C. 

Cir. l985), 779 F.2d 736 (in a libel action brought by an air 

traffic controller against The Washinqtonian, the court held that 

republication of a defamation uttered by another is immune when it 
is a fair and accurate report of official proceedings) ; Law Firm of 

Daniel P. Foster v. Turner Broadcasting System, Inc. (2nd Cir. 

1988), 844 F.2d 955 (dismissing a libel action on the grounds that 

CNN1s broadcast of statements made by FBI officials was 

substantially accurate and therefore privileged under the state's 

fair and true report statute). 

Second, our constitution gives a high priority to the public's 

right to know. It can be abridged only when "the demand of 

individual privacy clearly exceeds the merits of public 

disclosure." Art. 2, 5 9, Mont. Const. See Great Falls Tribune 

Co., Inc. v. Cascade County Sheriff (l989), 238 Mont. 103, 775 P. 2d 

1267 (when law enforcement officers have engaged in conduct that 

subjects them to disciplinary action, the public's right to know 

outweighs law enforcement officers' privacy interests). Here, the 

merits of disclosing that an attorney has been accused of 

misconduct clearly outweigh the demand of individual privacy, when 

the misconduct is presented as a mere allegation by a person whose 

motivation and probable unreliability are adequately conveyed in 

the publication. 

As Inter Lake owed no duty to Lence, it is entitled to 

judgment on Lence's negligence claim as a matter of law. 

Affirmed on all issues. 
Justices 
Justice Terry N. Trieweiler dissenting in part and concurring in 

part. 

I dissent from that part of the majority opinion which 

concludes that defendantst publication of the November 30, 1988, 

article was privileged as a matter of law. I conclude that there 

was no constitutional privilege which applied to this case and that 

whether there was a statutory privilege was an issue of fact which 

could not be resolved by summary judgment. 

The United States Supreme Courtfs decision in Ladmark 

L. Ed. 2d 1, which is relied upon by the majority was a narrow 

decision limited to the facts before the Court in that case. Those 

facts bear no similarity to the facts alleged in this case. 

In Landmark, 435 U.S. at 837, the issue before the Supreme 

Court was stated as follows: 

The narrow and limited question presented, then, is 

whether the First Amendment permits the criminal 

punishment of third persons who are strangers to the 

inquiry, including the news media, for divulging or 

publishing truthful information regarding confidential 

proceedings of the Judicial Inquiry and Review 

Commission. 

The differences in Landmark are readily apparent. First, and 

most importantly, that decision involved a judicial officer. This 

case involves a private citizen. Second, that case involved 

admittedly truthful information, while the plaintiff in this case 

alleged that the material published by defendants was untruthful. 

 ina ally, the issue in Landmark was whether the publisher of truthful 
information can be punished, while the issue in this case is 

whether the victim of untruthful information can be compensated. 

In arriving at its conclusion that a constitutional privilege 

protected the defendant, the Supreme Court relied heavily on its 

rationale that If[t]he operations of the courts and the judicial 

conduct of judges are matters of utmost public concern." Landmark, 

435 U.S. at 839. 

There is no similar public concern in this case. 

Neither did Smith v. Daily Mail Publishing Company (197 9) , 4 4 3 U. S . 97, 

99 s. ct. 2667, 61 L. Ed. 2d 399, nor FloridaStarv. B.J.F. (1989), 491 

U.S. 524, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (cases also relied 

upon by the majority), involve facts or issues similar to those in 

this case. Both cases again involved the limited issue of whether 

a state could criminally punish the publication of truthful 

information. In fact, in Smith, 443 U.S. at 105-06, the Court held 

that : 

Our holding in this case is narrow . . . there is no 

issue here of privacy . . . . At issue is simply the 

power of a state to punish the truthful publication of an 

alleged juvenile delinquent's name lawfully obtained by 

a newspaper. The asserted state interest cannot justify 

the statute's imposition of criminal sanctions on this 

type of publication. 

In PhiladeIphiaNewspapers,Znc. v. Hepps (1986), 475 U.S. 767, 777, 106 

S. Ct. 1558, 1564, 89 L. Ed. 2d 783, 793, the Supreme Court simply 

held that when the subject of a newspaper article involved matters 

of government it was of sufficient public interest that the 
plaintiff would be required to prove the falsity of the publication 

before he could recover damages for defamation. 

However, in this case, the plaintiff was neither a public 

official nor a public figure and the accusations made against him 

involved a simple dispute between an attorney and his client. 

There was no significant public interest in the subject of 

defendants' newspaper article. According to the U.S. Supreme 

Court's decisions, this type of communication possesses no 

significant constitutional privilege. Gem v. Robert Welch, Znc. (1974), 

418 U.S. 323, 94 S. Ct. 2997, 41 L. ~d. 2d 789; Dun & Brahtreet, Inc. v. 

Greenmoss Builders, Znc. (1985), 472 U.S. 749, 105 S. Ct. 2939, 86 

L. Ed. 2d 593. In Hepps, the Supreme Court summarized First 

Amendment protection for newspapers in the following fashion: 

One can discern in these decisions two forces that 

may reshape the common-law landscape to conform to the 

First Amendment. The first is whether the plaintiff is 

a public official or figure, or is instead a private 

figure. The second is whether the speech at issue is of 

public concern. When the speech is of public concern and 

the plaintiff is a public official or public figure, the 

Constitution clearly requires the plaintiff to surmount 

a much higher barrier before recovering damages from a 

media defendant than is raised by the common law. When 

the speech is of public concern but the plaintiff is a 

private figure, as in Gem, the Constitution still 

supplants the standards of the common law, but the 

constitutional requirements are, in at least some of 

their range, less forbidding than when the plaintiff is 

a public figure and the speech is of public concern. 

When the speech is of exclusivelv private-concern and the 

plaintiff is a private fiuure, as in Dun &Bradstreet, the 

constitutional reuuirements do not necessarilv force anv 

chanse in at least some of the features of the common-law 

landscape. [Emphasis added.] 

Hepps, 475 U.S. at 775. 
The majority concludes under Issue I1 that pursuant to the 

Hepps decision, Lence must prove that the Daily Inter Lake article 

was untrue; and that since the inaccuracies in the article were 

inconsequential, he has not met that burden. It is true that he 

must prove the article's falsity. However, that is not because of 

Hepps. It is because, by statute, falsity is a required element of 

a libel action in Montana. Section 27-1-802, MCA. 

When the majority concludes that the article is substantially 

true, it misconstrues the nature of Lence's complaint. His 

complaint is that the November 30, 1988, article in the Daily Inter 

Lake repeated Semenza's defamatory allegations that Lence committed 

fraud and professional misconduct, refused to pay Semenza for work 

that had been done, and unlawfully retained Semenzavs files. Lence 

contends that these allegations were untrue, and in support of that 

contention, he offers the fact that the complaint against him 

before the Commission on Practice was subsequently dismissed. 

A newspaper cannot avoid liability by honestly pointing out 

that it is simply repeating statements made by others. "[Olne who 

repeats or otherwise republishes defamatory matter is subject to 

liability as if he had originally published it." Restatement 

(Second) of Torts, 5 578 (1977). 

Therefore, while I concur with the majority that the 1989 

articles regarding building code violations were substantially 

true, I disagree that the accusations contained in the 1988 article 

were substantially true, and I disagree that the authorities relied 
upon by the majority under Issue I1 of that opinion grant any 

privilege to the Daily Inter Lake for the November 30, 1988, 

article that it published. 

If there is any privilege for the November 30, 1988, article, 

it is based upon § 27-1-804(4), MCA. That section provides that: 

A privileged publication is one made: 

(4) by a fair and true report without malice of a 

judicial, legislative, or other public official 

proceeding or of anything said in the course thereof. 

[Emphasis added.] 

I agree that the Daily Inter Lake's reference to the Supreme 

Court had no significance to anyone other than attorneys, and that 

attorneys who read the entire article would not be mislead by that 

reference. Therefore, the November 30, 1988, article was "a fair 

and true report of a judicial proceeding. However, 5 27-1-804 (4) , 

MCA, also requires that the publication be without malice. Since 

the privilege is statutorily created, we must look to the statutory 

definition of malice in Montana's Code. The only one I am aware of 

is the one found at g 27-1-221, MCA, which defines malice as 

follows: 

(2) A defendant is guilty of actual malice if he 

has knowledge of facts or intentionally disregards facts 

that create a high probability of injury to the plaintiff 

and: 

(a) deliberately proceeds to act in conscious or 

intentional disregard of the high probability of injury 

to the plaintiff; or 

(b) deliberately proceeds to act with indifference 

to the high probability of injury to the plaintiff. 
Whenever the meaning of a word or phrase is defined in any 

part of the Montana Code Annotated, that definition is applicable 

to the same word or phrase when it appears elsewhere. Section 

1-2-107, MCA. 

I conclude, based upon the testimony of Jacqueline Adams, the 

author of the article about which Lence complains, that there was 

a factual issue regarding whether Adams was aware of facts which 

suggested a high probability of damage to Lence, and then acted 

with indifference to that high probability. 

Adams testified that she first met Semenza during the month in 

which the article was published. She knew that he had been 

previously accused of flooding Lence's office and causing 

substantial damage. She knew, based upon that accusation and her 

interview with Semenza, that he had a high degree of animosity 

toward Lence. She had no prior experience with Semenza which would 

indicate that he was a reliable source of information. She was 

obviously aware of the fact that the allegations contained in the 

article would be very damaging to Lence's professional reputation. 

However, she testified that she did not give any great thought to 

that potential damage before publishing the article. 

Instead of attempting to verify the allegations made by 

Semenza, she published them without any further investigation. 

Even though she was aware that Semenza had made his complaint about 

the theft of his files to the Kalispell Police Department, and even 

though she was aware of the officer to whom the complaint was made, 

she made no effort to confirm the truthfulness of that accusation. 
She made no effort to contact Lence regarding Semenza's 

accusations; and made no other effort to independently verify 

anything she had been told by Semenza. She stated that it was not 

her job to determine who was calling who names and who was right. 

Even after Semenza's complaint to the Commission on Practice 

was dismissed, there was no follow-up publication in the Daily 

Inter Lake which pointed that out. 

There is a school of constitutional thought to which the 

majority apparently subscribes which holds that there is some 

public benefit from encouraging this kind of reckless disregard for 

the professional and personal reputation of others. However, I 

disagree. We are not, in this case, talking about prior restraint 

of speech or press. We are considering the similarly important 

rights of people who are damaged by the irresponsible exercise of 

First Amendment rights. 

So long as reporters are given the broad immunity provided for 

in the majority opinion, they, like Adams, will continue to have no 

reason for caring about the truthfulness ofthe harmful allegations 

that they report. While this free-wheeling approach may serve the 

interest of free exchange of information, it certainly ignores an 

equally compelling interest that all private individuals have in 

preserving their reputation. As pointed out in Gertz, 418 U.S. at 

The legitimate state interest underlying the law of 

libel is the compensation of individuals for the harm 

inflicted on them by defamatory falsehood. We would not 

lightly require the State to abandon this purpose, for, 
as MR. JUSTICE STEWART has reminded us, the individual's 

right to the protection of his own good name 

"reflects no more than our basic concept of 

the essential dignity and worth of every human 

being--a concept at the root of any decent system 

of ordered liberty. The protection of private 

personality, like the protection of life itself, is 

left primarily to the individual States under the 

Ninth and Tenth Amendments. But this does not mean 

that the right is entitled to any less recognition 

by this Court as a basic of our constitutional 

system." Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) 

(concurring opinion.) 

I concur with the majority's disposition of Issues IV, V, and 

VI, but do not agree with all the reasons given for the majority's 

disposition of those claims. I would affirm the District Court's 

dismissal of those claims because they are, in substance 

reallegations of plaintiff's claim for defamation. The 

necessary for each of those claims are essentially the sar 

elements necessary to prove the plaintiff's defamatio: 

Furthermore, I conclude that the facts alleged by the plaj 

not satisfy the quantum or quality of proof necessary to 6 

a claim for intentional infliction of emotional distress 

not the type of facts for which we have previously reca 

claim for negligent infliction of emotional distress. 

I also concur with the majority's disposition of Lenct 

for defamation based on the 1989 articles in the Daily In1 

I would, however, reverse the District Court's judgme 

dismissed Lence's claim based upon the November 30, 1988, 

and remand that claim to the District Court for trial 

factual issue raised and discussed above. If, after con4 

simply 

lements 

as the 

claim. 

tiff do 

tablish 

3nd are 

lized a 

s claim 

r Lake. 

: which 

article 

of the 

eration 
of the facts presented, a jury determined that Adamst article was 

not published with malice as defined in our statutes, then I would 

conclude it was privileged. On the other hand, if a jury found 

that her conduct was malicious, I would conclude that Lencets claim 

for defamation is actionable. 

Justice William E. Hunt, Sr., joins in the foregoing dissent 

and concurrence. 

1-/ . 

Justice 
May 27, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Alan J. Lemer 

Law Offices of Alan J. Lerner 

P.O. Box 1158 

Kalispell, MT 59903-1158 

Larry M. Elison 

Attorney at Law 

1101 West Greenough Dr., # C-2 

Missoula, MT 59802 

Gary R. Christiansen 

Warden, Christiansen, Johnson & Berg 

P.O. Box 3038 

Kalispell, MT 59903-3038 

Robert C. Bernius 

Nixon, Hargrave, Devans & Doyle 

Ste. 800, One Thomas Circle 

Washington, D.C. 20005 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA