No. 12389 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

WADE V. LEWIS, SR., and ELKHORN 

MINING COMPANY, a Montana Corporation, 

Plaintiff and Respondent, 

READER'S DIGEST ASSOCIATION INC., 

a Corporation and the HEARST CORPORATION, 

a Corporation, 

Defendants and Petitioners. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Petitioners : 

Loble, Picotte, Loble, Pauly 6 Sternhagen, Helena, 

Montana. 

Peter Pauly argued, Helena, Montana. 

Gough, Booth, Shanahan and Johnson, Helena, Montana. 

Ronald F. Waterman argued, Helena, Montana. 

For Respondent: 

Bolkovatz, Romine and Bell, Helena, Montana. 

John F. Bell argued, Helena, Montana. 

Submitted: May 29, 1973 

Decided: JUL 1 8 1973 

Filed: JUL181973 
PER CURIAM: 

This is an original declaratory judgment action filed 

1 of the MonW&Rules of 

upon certification to this 

Court by the Hon. James F. Battin, the United States District 

Judge presiding in Civil Action No. 2033 in the United States 

District Court for the District of Montana, Butte Division, 

entitled "Wade V. Lewis, Sr. and Elkhorn Mining Company, a 

Montana corporation, Plaintiffs, vs. Reader's Digest Association, Inc., a corporation, and The Hearst Corporation, a 

corporation, Defendants." In that quit in federal court there 

is a controlling question of Montana law as to which there is 

a substantial ground for difference of opinion, adjudication 

of which by this Court will materially advance ultimate termination of the federal litigation. 

The question for determination, as stated by Judge at tin 

in his Certificate of Facts and Issues is: 

"In a libel action, does Montana adopt the 'single' 

or 'multi' state publication rule for purposes 

of determining the situs and time of the tort, 

where the defendants accomplish a multi-state circulation of their publication but other than such 

circulation have no contacts with this state"? 

The facts giving rise to this issue are set forth in 

Judge Battin's Certification of Facts and Issues, which we will 

summarize: 

Plaintiff Lewis is a resident of Boulder, Montana. Plaintiff Elkhorn Mining Company operates a "health" mine located 

near the City of Boulder, Jefferson County, Montana. The mine 

is said to be a cure for sufferers of arthritis and other diseases. 

In the August 1969 issue of Good Housekeeping, a publication of defendant Hearst Corporation, an article was printed, 

entitled: "What You Should Know About Arthritis Quacks1'. 
The article contained a paragraph reading: 

"Promoters of quack 'cures1 have become unspeakably bold. In Boulder, Montana, there is an 

abandoned uranium mine whose glowing advertisements lure thousands each year to soak up radon, 

a radioactive gas in hopes of relieving their 

pain. The AMA has called this type of treatment 

not only useless, but potentially dangerous. 

Nevertheless, when news accounts reported that 

the famous heart-transplant pioneer, Dr. Christian 

Barnard, had arthritis in his hands, the mine 

owners actually sent him a brochure and invited 

him to take the cure!" 

The January 1970 issue of defendant Reader's Digest 

magazine printed a condensed version of the Good Housekeeping 

article. The third paragraph of that version was identical to 

the paragraph set forth above. 

The January 1970 issue of Reader's Digest was purchased 

by or delivered to nearly one-half of the families residing in 

Montana, and a substantial but unknown number of the August 

1969 issue of Good Housekeeping was likewise so purchased or 

delivered. 

Contending they were libeled by publication and republication of the paragraph heretofore quoted, plaintiffs brought 

suit for $30,575.83, "direct, immediate and provable damages"; 

and for $200,000 punitive and exemplary damages. 

Both defendant Hearst Corporation and defendant Reader's 

Digest Association, Inc. are incorporated in Delaware and each 

has its principal office in the State of New York. Neither corporation is qualified to do business in Montana nor has any 

office in this state. The only contacts defendants have with 

Montana are through subscription and wholesale distribution of 

its magazines to individuals and local or independent national 

distributors in Montana. 

The August 1969 issue of Good Housekeeping containing 

the alleged libelous paragraph was printed at Kokomo, Indiana. 

The January 1970 issue of ~eaderk Digest, sold or distributed in 
Montana, was printed at Dayton, Ohio. 

Defendants have filed motions in the federal court 

action to dismiss plaintiffs' libel action for lack of jurisdiction. The federal district court "is convinced that defendants' jurisdictional motion will be disposed of only by the answer 

of the Montana Supreme Court to the question" certified to it in 

the instant proceeding. In certifying the question to this Court, 

the federal district court stated the matter in this fashion: 

"The question deals with whether or not the defendants in this case are subject to the jurisdiction of [the Montana federal court] because * * * The cause of action [is] * * * one which 

arises out of, or results from the activities 

of the defendant within the forum * * *' Brecht 

v. RMK-BRJ, 24 St. Reptr. 761, 763 (Dist. of 

Mont., 1967); L. B. Reeder Contractors of Arizona 

v. Higgins Industries, Inc., 265 ~.2d 768 (9th 

Cir. 1959) ; Rule 4 (e) , Federal Rules of Civil 

Procedure; and Rule 4B(1), Montana Rules of Civil 

Procedure. If Montana follows what is defined 

below as the multi-publication rule, the cause 

of action in this case arose upon the arrival 

and sale of the defendants' periodicals in Montana. 

If, on the other hand, Montana follows what is 

defined below as the single publication rule, 

one cause of action arose upon the first publication or printing of the articles, and no other 

cause of action can arise out of the publication 

of the articles." 

Whether Montana is to follow the single publication or 

multi-publication rule is one of first impression in this state. 

The United States District Court has set out a legal 

definition of the two rules: 

"Single Publication: 'A single publication 

occurs in cases of multi-state circulation of 

periodicals where the cause of action for libel 

is absolutely complete at the time of the first 

publication; subsequent appearances or distribution of the periodicals are of no consequence 

whatsoever to the creation or existence of a 

cause of action but are only relevant in computing damages.' 

Insull v. New York, World Telegram Corporation, 

273 F.2d 166, 171 (7th Cir. 1959) ." 

"Multi-Publication: 'The multiple publication 

rule is that each time a libelous article is 

brought to the attention of a third person a new 
publication has occurred; * * * each publication is a separate actionable tort; and * * * each time a * * * magazine containing 

libelous material is sold or distributed, a 

new publication has occurred and a fresh 

tort has been committed, which, defenses aside, 

is actionable.' 

HartmanJtv. Time, Inc., 166 F.2d 127, 132 

(3rd Cir. 1947). " 

The origin of the multi-publication rule is the common 

law. The King v. Carlisle, 1 Chitty 451, 18 Eng. Common Law 

Reports 248; The Duke of Brunswick v. Harmer, 14 Q.B. 185, 

117 Eng. Rep. 75. This rule is the view of the American Law 

Institute (Restatement, Torts, § 578, Comment b.) and there 

are several United States jurisdictions in which it is still 

the last word of the courts. Prosser, Law of Torts, 4th ed. 

p. 769, footnote 91, cites Staub v. Van Benthuysen, 36 La. Ann. 

467; Renfro Drug Co. v. Lawson, 138 Texas 434, 160 S.W.2d 246; 

Louisville Press Co. v. ~e$bll~, 105 Ky. 365, 49 S.W. 15; Holden 

v. American News Co., 52 F.Supp. 24, dismissed 144 F.2d 249; 

Hartman v. American News Co., 69 F.Supp. 736, affirmed 171 F.2d 

581. However, with the advent of mass printing and interstate 

circulation of newspapers, magazines and periodicals, etc., 

some courts became increasingly concerned with problems such as 

the multiplicity of actions and applioation of the statute of 

limitations to libel actions. See: Ogden v, Association of 

United States Army, 177 F.Supp. 498; Mattox v. News Syndicate 

Co., 176 F.2d 897, cert. den. 338 U.S. 858, 94 L,Ed. 525, 70 S.Ct. 

The single publication rule, which originated in New 

York, as stated in 50 Am Jur.2d, Libel and Slander, § 153: 

" * * * evolved as a practical means of protecting the forum against multiplicity of 

suits and indefinite tolling of the statute 

of limitations, and where a publication has 

an impact in more than one state, a question 

of conflict of laws arises as to whether 

and to what extent the 'multiple publication' 
rule or the 'single publication' rule governs." 

Despite the numerical weight of authority following 

the single publication rule, we consider it unsound. Conceived 

as a judge-made rule to serve the interests of judicial administration and expediency, it nevertheless is wrong in principle 

and in practice creates far graver problems than it solves. 

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. Section 64-201 

et seq., R.C.M. 1947; 50 Am Jur 2d, Libel and Slander, S1. 

In a libel action the interest protected is that of reputation. Thus, before there can be tort liability the defamation must have been communicated to someone other than the person 

defamed. This element of communication is given the technical 

name of "publication". Every sale or delivery of the defamatory 

article is a distinct publication, causing injury to the defamed 

person, and a separate basis for a cause of action. Prosser, 

Law of Torts, 8113; 1 Harper and James, The Law of Torts, 85.15. 

Where the publication has an impact in many states, as 

in the present case, involving nationally circulated magazines, 

a question arises concerning which state law governs. Applying 

the usual conflict of laws rule governing torts, i.e. that the 

law of the place of injury controls, presents practical difficulties in actions involving a multi-state tort, since it is 

very possible the plaintiff was "injured" in several states. 

The single publication rule, however, does not solve this problem. 

Hartmann v. Time, 166 F.2d 127; Anno. 58 ALR2d 650. Generally 
in cases of multi-state libel, the greatest harm to a person's 

reputation will occur in the state of domicile. To promote the 

underlying purpose of libel laws some courts have seen fit to 

apply the law of the plaintiff's domicile. This is a better 

rule than that which would restrict the plaintiff to the place 

of printing. Dale System, Inc. V. Time, Inc., 116 F.Supp. 527; 

Fouts v. Fawcett Publications, 116 F.Supp. 535; Hazlitt v. 

Fawcett Publications, 116 F.Supp. 538. This rule has the positive effect of restricting forum shopping by the plaintiff cited 

as a problem with multi-publication rule. In addition, it would 

prevent the publishing company from choosing as a place of printing a state with favorable libel laws. 

Another problem often confronted by the courts when applying the multi-publication rule is that of an indefinite tolling 

of the statute of limitations. This evolves if it can be said 

that every time the defamation is communicated to a third party 

a separate cause of action arises. But a rule holding that the 

period of limitation begins to run from the time of the first 

printing may unduly leave the plaintiff unprotected. An unscrupulous publisher might print a defamatory article about a Montanan 

and distribute a few copies in New York; the plaintiff might well 

feel that the time and expense involved would not warrant the 

filing of an action; then after the period of limitation ends 

the publisher could flood Montana and the rest of the country 

with the article without fear of liability. See ~ominiak v, 

National Enquirer, 439 Pa. 222, 266 A.2d 626. The single publication rule has not solved this problem nor has it set a specific time for the statute of limitations to begin running. Rather, the courts have set forth various holdings differing from 

state to state for the time the publication is said to begin. 

Anno. 42 AIR3d 807. 
The single publication rule has been used in several 

states to set venue and jurisdiction at the place of printing. 

If this rule were adopted as the law in this state the plaintiff, a Montana corporation, conducting its business solely 

in this state, would be limited to maintaining its suit in 

Kokomo, Indiana, or Dayton, Ohio, the jurisdiction where the 

magazines were printed. The expense of bringing such suit 

would effectively eliminate redress as a practical matter for 

a plaintiff residing in a distant state such as Montana. 

Defendants contend adoption of the multiple publication 

rule would subject them to a multitude of suits in every state 

and this will have a "chilling effect" upon the First Amendment's 

freedom of the press. We have taken into account those considerations. We remain unconvinced that adoption of the multistate publication rule will inhibit the zeal with which national 

periodicals disseminate their ideas. We believe that any protection given the press under the First Amendment of the United 

States Constitution must be balanced against a citizen's right 

to protect his reputation and good name in the community in which 

he resides against printing and publication of false defamatory 

statements. Montana's new Constitution affirms this principle. 

Art. 11, Sec. 7, 1972 Montana Constitution. 

The principle of res judicata in conjunction with state 

and federal rules of civil procedure requiring plaintiffs to 

include in one action all causes based on publications made by 

the defendant prior to the time of suit, perhaps offers the best 

method of resolving the problem of multiple suits. 

Much has been said in the briefs concerning the infringement upon freedom of the press if the multi-publication rule is 

adopted. Historically, the free press amendment is construed to 

mean freedom from three major types of restraint: censorship, 
licensing, and seditious libel, which is defamation of the 

government. Firstamerica Dev. Corp. v. Daytona Beach N.J. 

Corp, (Fla. 1966) 196 So.2d 97. 

The United States Supreme Court has repeatedly stated 

that freedom of speech and press does not permit the publication of libels. Chaplinsky v. New Hampshire, 315 U.S. 568, 

62 S.Ct. 766, 86 L.ed 1031; Beauharnais v. Illinois, 343 U.S. 

250, 72 S.Ct. 725, 96 L.ed 919, (reh.den. 343 U.S. 988, 72 

S.Ct. 1070, 96 L.ed 1375); Roth v. United States, 354 U.S. 476, 

77 S.Ct. 1304, 1 L ed 2d 1498, (reh. den. 355 U.S. 852, 78 S.Ct. 

8, 2 Led 2d 60). 

Freedom of speech, expression, and press was intended 

to assure the unfettered interchange of ideas for the bringing 

about of political and social changes desired by the people. 

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L ed 2d 

1498. It was not designed to confer special privileges upon 

persons engaged in the publishing business. Barber v, Time, 

Inc., 159 S.W.2d 291, 348 Mo. 1199; Dupont Engineering Co. v. 

Nashville Banner Pub. Co. 13 F.2d 186. If we were to hold that 

a libel action could be brought only in the state in which these 

national magazines were printed, the advantage of the press 

over the public would be unconscionable. 

Defendants contend the reasoning supporting the multiple 

publication rule has been outdated by technological changes in 

the printing field. They contend modern typesetting machines 

and rapid steam printing presses have made it possible to reproduce a number of copies of a single publication far beyond any 

number within the realm of contemplation a century ago. 

Expanding a magazine to nationwide circulation may be 

conducive to a true free press. The widespread circulation of 

defendants' magazines suggests that their existence is predicated 
upon a national market. But such a magazine cannot exercise 

that right without observing corresponding responsibilities. 

Freedom of the press was never intended to permit a business, 

whose publication is prepared for a national audience, 

to be free from suit in all states but that of printing. Curtis 

Publishing Company v. Golino, 383 F.2d 586. 

For these reasons we adopt the multi-publication rule. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 12389 

WADE V. LEWIS, SR.., and ELKHORN 

MINING COMPANY, a Montana Corporation, 

Plaintiff and Respondent, F -' . dd 

VS. 

READER'S DIGEST ASSOCIATION INC., 

a Corporation and the HEARST CORPORATION, ,I &*A FW4C 

d 

CbEWlg OF SUPRLU~IE: CQ&~ 

Defendants and Petitioners. S~TE OF ~o&t~sur 

ORDER AMENDING OPINION 

PER CURIAM: 

IT IS ORDERED that the above-captioned opinion be 

amended in the following manner: 

In the first paragraph on page 2, the second line 

which reads "pursuant to the provisions of Rule 1 of the Montana 

Rules of Appellate Civil Procedure" should be changed to read 

"pursuant to the provisions of Rule 1 of the Rules of the Montana 

Supreme Court". 

DATED this 24th day of July, 1973.