NO. 95-333

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RICHARD HELFRICH,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, or.; Cannon & Sheehy,

Helena, Montana (argued)

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Carol Schmidt, Ass't Attorney General, (argued)

Helena, Montana

Brad Newman, Deputy Silver Bow County Attorney,

Butte, Montana

Heard: May 2, 1996

Submitted: May 16, 1996

Decided: August 9, 1996

Filed:
The following issues are raised on appeal:

1 . Is § 45-8-212, MCA, which defines the offense of criminal

defamation, unconstitutionally overbroad?

2 . Did the District Court err in denyinq Helfrich's motion

to dismiss the charge of stalking?

O n or about May 30 or May 31, 1994, Helfr.ich distributed

fliers in various locations in Silver Bow County , Montana. The

fliers alleged that a named individual had engaged in criminal

conduct. Based on Helfrich's distribution of the fliers, the

Silver Bow Deputy County Attorney filed two complaints in Justice

Court, the first alleging that Helfrich committed the offense of

criminal defamation in violation of 5 45-E-212(2), MCA, and the

second alleging that Helfrich committed the offense of misdemeanor

stalking in violation of § 45-5-220(l) (b), MCA. A bench trial was

held in Justice Court and the court found Helfrich guilty of both

offenses.

Justice W. William Leaphart delivered the Opinion of the Court.

Richard Helfrich (Helfrich) appeals from the judgment entered

by the Second Judicial District Court, Silver Bow County, accepting

Helfrich's conditional guilty pleas to the misdemeanor offenses of

criminal defamation and stalking. Pursuant to § 46-12-204(3), MCA,

Helfrich reserved the right to appeal from the District Court's

order denying his motion to dismiss the charges. We reverse and

remand.

Helfrich appealed his convictions to the District Court and

filed a motion to dismiss the charges of defamation and stalking on

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the grounds that the criminal defamation statute is

unconstitutional and that his actions did not constitute stalking

within the meaning of the stalking statute. The District Court

denied the motion to dismiss and Helfrich entered conditional

guilty pleas reserving his right to appeal. This appeal followed.

1 . Is § 45-8-212, MCA, which defines the offense of criminal

defamation, unconstitutionally overbroad?

In reviewing the constitutionality of a statute enacted by the

legislature, this Court presumes that the statute is

constitutional. State v. Lilburn (1994), 265 Mont. 258, 266, 875

P.2d 1036, 1041, cert. denied, 115 S.Ct. 7.26 (1995) (citing Montana

Auto Ass'n v. Greeley (1981), 193 Mont. 378, 382, 632 P.2d 300,

3031. The reviewing Court must adopt a construction of the statute

which renders the statute constitutional in preference to one which

renders it invalid. Monroe v. State (1994), 265 Mont. 1, 3, 873

P.2d 230, 231. The party challenging the constitutionality of the

statute carries the burden of proof. Monroe, 873 P.2d at 231; GBN,

Inc. v. Montana Dep't of Revenue (1991), 249 Mont. 261, 265, 815

P.2d 595, 597.

In reviewing statutes which have been challenged under the

doctrine of overbreadth, this Court has stated that:

"[AIn individual whose own speech or expressive conduct

may validly be prohibited or sanctioned is permitted to

challenge a statute on its face because it also threatens

others not before the court--those who desire to engage

in legally protected expression but who may refrain from

doing so rather than risk prosecution or undertake to

have the law declared partially invalid." Brockett v.

Spokane Arcades, Inc. 11985) I 14721 U.S. 14911, 15041,

105 S.Ct. 2794, 2802, 86 L.Ed.2d 394, 405-406. Thus, the

statute may be unconstitutional on its face even though

it would be constitutional as applied to appellant.

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State v. Lance (1986), 222 Mont. 92, 99, 721 P.2d 1258, 1263. The

statute at issue, 5 45-8-212, MCA, provides:

(1) Defamatory matter is anything which exposes a

person or a group, class, or association to hatred,

contempt, ridicule, degradation, or disgrace in society

or injury to his or its business or occupation.

(2) Whoever, with knowledge of its defamatory

character, orally, in writing, or by any other means

communicates any defamatory matter to a third person

without the consent of the person defamed commits the

offense of criminal defamation and may be sentenced to

imprisonment for not more than 6 months in the county

jail or a fine of not more than $500, or both.

(3) Violation of subsection (2) is justified if:

(a) the defamatory matter is true and is

communicated with good motives and for justifiable ends;

(b) the communication is absolutely privileged;

Cc) the communication consists of fair comment made

in good faith with respect to persons participating in

matters of public concern;

(d) the communication consists of a fair and true

report or a fair summary of any judicial, legislative, or

other public or official proceedings; or

(e) the communication is between persons each

having an interest or duty with respect to the subject

matter of the communication and is made with the purpose

to further such interest or duty.

(4) No person shall be convicted on the basis of an

oral communication of defamatory matter except upon the

testimony of at least two other persons that they heard

and understood the oral statement as defamatory or upon

a plea of guilty. [Emphasis added.1

In the instant case, Helfrich contends that 5 45-E-212, MCA,

is overbroad because the statute allows a criminal conviction for

an alleged defamation by a lesser standard than that which is

required in a civil action for defamation. In a civil action,

truth is an absolute defense barring any recovery by the plaintiff.

New York Times, Co. v. Sullivan (1964), 376 U.S. 254, 277-78, 84

S.Ct. 710, 724-25, 11 L.Ed.2d 686. Helfrich contends that truth

should also be an absolute defense to a criminal prosecution for

defamation. He notes, however, that under § 45-E-212(3), MCA,

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truth alone is not sufficient. Rather, the statute requires not

only a showing of truth but also a showing that the alleged

defamatory matter "is communicated for good motives and for

justifiable ends."

In Madison v. Yunker (1978), 180 Mont. 54, 67, 589 P.2d 126,

133, this Court adopted the defamation standard set forth in hew

York Times. One of the principles established in New York Times is

that truth is an absolute defense.l Helfrich argues, relying on

New York Times, that a showing of good motives and justifiable ends

is not required to defend a civil defamation action and such a

showing should not be required to avoid criminal liability

As the State concedes, the vast majority of courts which have

addressed the constitutionality of criminal defamation statutes

which require, as a defense, that the alleged defamatory material

be communicated with good motives and for justifiable ends, have

declined to judicially narrow the statutes and, therefore, have

found such statutes to be unconstitutional. e.q., See Tollett v.

United States (8th Cir. 1973), 485 F.2d 1087; Gottschalk v. State

(Alaska 1978), 575 P.2d 289; Weston v. State (Ark. 1975), 528

S.W.2d 412; People v. Ryan (Cola. lPPl), 806 P.Zd 935, cert.

1 We note that this Court has previously recognized that "the

truth of a defamatory statement of fact is a complete defense to an

action for defamation." Griffin v. Opinion Publishing Co. (19431,

114 Mont. 502, 507, 138 P.2d 580, 584. However, later in that

opinion, the Court also stated that "[elvery person has a right to

comment on matters of public interest and general concern, provided

he does so fairly and with an honest purpose." To the extent that

this statement can be interpreted to require the defendant to prove

good faith and justifiable ends as a defense, it is expressly

overruled.

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denied, 502 U.S. 860; Commonwealth v. Armao (Pa. 1972), 286 A.2d

626; Eberele v. Municipal Court (Cal. Ct. App. 1976), 127 Cal.Rptr.

594; State v. Powell (N.M. Ct. App. 19921, 839 P.zd 139. For

example, the Pennsylvania Supreme Court declined, as a wholly

inappropriate judicial activity, the state's request that the court

Ila-CC0bi and, in effect, redraft Pennsylvania's criminal libel

statute to comport with the First Amendment. Armao, 286 A.2d at

632.

In Armao, the Pennsylvania Supreme Court stated that "[hlence,

under present Pennsylvania law, a conviction for, criminal libel

could conceivably be based on a true statement, published

maliciously, for non-justifiable ends tending to disgrace and

degrade the libeled person." Armao , 286 A.Zd at 628 n.7. The

court held that "the statutory language makes no provision for

truth being an absolute defense. Likewise, no recognition is given

the reckless disregard and knowing falsity standard mandated by New

York Times and Garrison [Garrison v. Louisiana (19641, 379 U.S. 64,

78, 85 S.Ct. 209, 217, 13 L.Ed.2d 1251." Armao, 286 A.2d at 629.

The Armao court concluded that:

[olnly a knowing falsity or reckless disregard of the

truth are actionable in civil defamation. It would

violate all sound and fundamental principles of justice

to have a merely negligent statement an occasion for the

imposition of criminal penalties, and the First Amendment

as interpreted by the United States Supreme Court forbids

such a result.

Armao, 286 A.2d at 632.

Similarly, in Weston, the Arkansas Supreme Court, in

interpreting a statute which, like § 45-8-212, MCA, allowed truth
as a defense only if good faith and justification were proved,

determined that the statute was unconstitutional. Recognizing

that, although the statute provided that truth “may be given in

evidence," the court nonetheless determined that this falls short

of the New York Times rule which "absolutely prohibits the

punishment of truthful criticism." Weston, 528 S.W.2d at 415

(citing Garrison, 379 U.S. at 78).

The Weston court noted that "under the rule laid down in

Garrison, truth is a defense even when the offending publication is

not made 'with good motives and for justifiable ends. .'I'

Weston, 528 S.W.2d at 415. The court rejected the state of

Arkansas' request to limit application of the libel statute to

comport with the First and Fourteenth Amendments. Accordingly, the

court held that the statute was unconstitutional "under the rulings

of the U.S. Supreme Court in New York Times v. Sullivan, supra, and

Garrison v. Louisiana, supra." Weston, 528 S.W..2d at 416.

Section 458-212(3) (a), MCA, parallels the Arkansas statute in

that it recognizes truth as a defense only if it "is communicated

with good motives and for justifiable ends." Both the Arkansas

Supreme Court and the Pennsylvania Supreme Court determined that

statutes substantially the same as Montana's were inconsistent with

the United States Supreme Court's rulings in both New York Times

and Garrison because such statutes prohibited true speech unless

"communicated with good motives and justifiable ends." As the

Weston court recognized, truth is a defense even when the offending

publication is not made "with good motives and for justifiable
ends." We agree with the reasoning and analysis of the Arkansas

supreme Court and the Pennsylvania Supreme Court. Like the

statutes at issue in Weston and Armao -I § 45-8-212, MCA,

impermissibly requires the defendant to prove that the material,

even if true, was communicated in good faith and for justifiable

ends. Unlike the civil standard for defamation set forth in hew

York Times and adopted by this Court in Madison, the statute does

not allow for truth as an absolute defense.2

Article II, § 7 of the Montana Constitution provides that, in

prosecutions for libel and slander, "the truth thereof may be given

in evidence." The constitutional guarantee found in Article II, 5

7 of the Montana Constitution, stands for something more than the

proposition that truth is admissible. The provision means that, as

a matter of state constitutional law, truth alone is sufficient as

a defense--an absolute defense. The legislature cannot dilute this

basic proposition by providing that while truth may be given in

evidence, it is only a defense to a prosecution for libel or

slander if it is for good motives and for justifiable ends.

Accordingly, we determine that 5 45-8-212, MCA, is

unconstitutionally overbroad. It violates the First and Fourteenth

Amendments of the United States Constitution as interpreted by the

United States Supreme Court in New York Times and Garrison and

Article II, § 7 of the Montana Constitution because, on its face,

2 Although the record does not indicate whether the

information communicated by Helfrich was true, the truth or falsity

of the information is irrelevant as we determine that § 45-8-212,

MCA, is unconstitutional on its face.

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the statute prohibits truthful criticism when not communicated for

good motives and justifiable ends.

2. Did the District Court err in denying Helfrich's motion

to dismiss the charge of stalking?

Helfrich argues that since his act of distributing fliers

cannot constitute criminal defamation, it likewise cannot

constitute stalking under § 45-5-220, MCA. This argument ignores

the fact that his challenges to the two statutes are not parallel.

Helfrich made a facial challenge to the criminal defamation

statute. That is, he argued, and we agree, that the criminal

defamation statute is overly broad since, on its face, it prohibits

truthful criticism when not communicated for good motives and

justifiable ends. On the other hand, his attack on the stalking

statute is an "as applied" challenge. The stalking statute is not

facially defective since it specifically does not apply to

constitutionally protected activities such as truthful

communications. The burden is on the defendant to prove that his

activity is constitutionally protected. Thus, although we assumed,

arguendo, that the fliers were true for purposes of resolving the

constitutionality of the criminal defamation statute, no such

assumption is warranted in the context of the stalking statute.

Rather, Helfrich must prove that his communication was, in fact,

true in order to set the stage for his "as applied argument."

The complaint alleged "that the Defendant, RICHARD L. HELFRICH

purposely or knowingly caused [Doe31 substantial emotional distress

3 A pseudonym has been used in place of the actual name of the

alleged victim.

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by repeatedly harassing, threatening or intimidating [Doe1 i n

person Or by other action, specifically by posting fliers at

Various locations within Silver Bow County alleging that [Doe] has

engaged in criminal conduct." The State alleged that this conduct

constituted the crime of misdemeanor stalking in violation of 5 45-

5-220(l) (b), MCA. Section 45-5-220, MCA, provides in relevant

part:

(1) A person commits the offense of stalking if the

person purposely or knowingly causes another person

substantialemotionaldistress or reasonable apprehension

of bodily injury or death by repeatedly:

(a) following the stalked person; or

ib) harassing, threatening, or intimidating the

stalked person, in person or by phone, by mail, or by

other action, device, or method.

(2) This section does not apply to a

constitutionally protected activity.

.

In the instant case, the record does not disclose whether the

information contained in the fliers distributed by Helfrich was

true or false. As we established earlier in this opinion, true

communications are constitutionally protected; thus, truth is an

absolute defense to a prosecution for criminal defamation as well

as to a civil defamation suit

Assuming that Helfrich's fliers contained truthful information

and were otherwise lawfully posted, then the act of posting the

fliers may be a constitutionally protected activity within the

exception of 5 45-5-220(2), MCA. We say "may" because truth is not

an absolute defense to a charge of stalking. Unlike a charge of

criminal or civil defamation which focuses solely on the content of

the speech, a charge of stalking focuses on conduct which may, but

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does not necessarily, involve speech. Depending upon the nature,

timing, context and frequency of the speech, a truthful

communication may or may not be a constitutionally protected

activity under 5 45-S-220(2), MCA. That "you cheated on your tax

return" may be a truthful statement but that does not necessarily

mean that I have the right to telephonically remind you of that

fact every morning at 2:00 a.m. A jury may well consider such

conduct to be harassment under the stalking statute.

In the present case we are not called upon to decide whether

a particular truthful statement contained in a flier is

constitutionally protected from a stalking charge because there has

been no threshold allegation or determination that the statement in

question was truthful. To qualify as protected speech, it must at

least be truthful. Beyond that, there must be a determination as

to whether, albeit truthful, the statement is an element of conduct

which is harassing, intimidating or threatening within the purview

of the stalking statute. Even though the conduct may include

protected speech, the State's interest in shielding the victim from

such conduct may outweigh the defendant's constitutional

protections. As Helfrich concedes, under Madison, not all speech

is protected. Madison, 589 P.2d at 130; State v. Cooney (1995),

271 Mont. 42, 48-49, 894 P.Zd 303, 307. For example, this Court

has held that threats are not protected speech under the Fifth

Amendment. Coonev, 894 P.2d at 307 (citing Lance, 721 P.2d at

1266). We also recognized that "[tlhere are certain well-defined

and narrowly limited classes of speech, the prevention and

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punishment of which have never been thought to raise any

Constitutional problems. These include the lewd and obscene, the

profane, [and] the libelous. . . 'I Lance, 721 P.Zd at 1265

(quoting Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 571-72,

62 S.Ct. 766, 768-69, 86 L.Ed. 1031). Activities which are

intended to embarrass, annoy or harass are not protected by the

First Amendment. People v. Holt (Ill. 1995), 649 N.E.2d 571, 581

(citing Colten v. Kentucky (1972), 407 U.S. 104, 109, 92 S.Ct.

1953, 1956, 32 L.Ed.Zd 584) (holding that actions taken solely to

annoy and inconvenience are not given constitutional protection).

On the other hand, if the information in Helfrich's fliers

were false or not lawfully posted, it would not qualify as a

constitutionally protected activity and the § 45-5-220(Z), MCA,

exception would not prohibit a prosecution for stalking.

Without expressing any views as to whether the posting of

truthful fliers constitutes the crime of stalking or is a

constitutionally protected activity, we remand this matter pursuant

to s 46-12-204(3), MCA, for the purpose of allowing Helfrich to

withdraw his plea of guilty to the charge of stalking and, if he so

chooses, to raise and prove that his conduct falls within the

constitutionally protected activity exception of § 45-5-220 (2),

MCA.

Reversed and remanded.

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Justices

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