Prosecutor Justifies Charges Against Man for "Criminal Defamation of Jews" in Montana
By Martin Hill
LibertyFight.com
October 9, 2015


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UPDATE: Heroic Judge Tosses Out "Criminal Defamation of Jews" Charge In Montana 12/27/15

  • "The holocaust has been proven to be a lie beyond a reasonable doubt..."
  • "It's important to note that jews hate free speech & are known bullsh-ters"
  • "I'm a wage slave to ink and paper dollars we print to bailout jewish mega banks as kikes go on bout #WhitePrivilege & I'm not suppose to kill?" - David Joseph Lenio - facing 10 years in prison for alleged Twitter posts 'defaming' Jews

    The case of David Joseph Lenio has received some attention but the prosecutor's arguments deserve a closer look - particularly since Lenio faces up to ten years in prison on the 'criminal defemation of jews' charge alone. As we reported last month, Lenio has been released from prison and the awaits trial.

    Lenio is charged with two counts: Count I: Intimidation in violation of Section 45-5-203(1), MCA, and Count II: Criminal Defamation in violation of Sec. 45-8-212(2), MCA. Each charge if convicted, can land Lenio up to ten years in prison.

    Stacy Boman, Deputy Flathead County Attorney, drafted a 26 page STATE'S RESPONSE TO DEFENDANT'S OMNIBUS MOTION TO DISMISS on February 18, 2015.

    In the 'State's response to the defendants motion to dismiss,' the Montana prosecutor argues that the statute is constitutional, and that the Montana legislature previously ammended their "criminal defamation" statute because it had been found to be "unconstitutionally overbroad." It's no longer overbroad, prosecutors say, because it now 'provides truth as a complete defense to criminal defamation.'

    The prosecutor writes:


    "The Court found the defamation statue was unconstitutionally overbroad, and in conflict with the United States Supreme Court holdings in New York Time and Garrison, because it did not provide for truth as a complete defense. Subsequently, the Montana Legislature amended § 45-8-212, MCA to eliminate the offending language and provided truth as a complete defense to criminal defamation."

    The circumstances in this case differ from those in Garrison. The vast majority of Lenio's statements regarding Jewish people do not relate to a public official. Instead, his comments address Jewish people as a collective class of people. Lenio argues his statements about Jewish people "cannot reasonably be understood to be factual assertions." To the contrary, Lenio states in his Twitter postings, "Now that the holocaust has been proven to be a lie beyond a reasonable doubt, it is now time to hunt the Nazi hunters." It is clear from Lenio's communications he is asserting the statements as if they were fact. Further, § 45-8-212(3)(c), MCA provides that no violation of the criminal defamation statute occurs if the communication is a "fair comment made in good faith" with respect to people in matters of public concern. The statute appropriately allows for discourse on matters of public concern."


    [Note: How or why does the prosecutor contend that Lenio's comments were not "fair comments made in good faith" or that his topics are not "matters of public concern"? I conclude, based on my extensive research of Lenio's postings, videos and writings, that Lenio fully believes what he says and that he is indeed very concerned.]

    The prosecutor continues,

    "In the instant case, Lenio communicated numerous defamatory comments to kill Jewish people and asserts Jewish people have degraded the national economy. Lenio does not demonstrate how defamatory statements directed at a religious group of people unconstitutionally captures more protected speech than defamatory threats against an individual. As provided in the Affidavit, Lenio states the holocaust was a lie and it is "time to hunt the Nazi hunters." Affidavit, 4 (Feb. 28, 2015). This is merely one example of Lenio' s statements intended to attack Jewish people based on religion."

    The prosecutor also explains why the threats charges should not be dismissed, but LibertyFight.com will not address those allegations. We are only focusing on the 'criminal defamation of jews' charge. If you want to read about the case in full and Lenio's alleged twitter postings about "I want to shoot up a school" "or just shoot a bunch of #kikes" etc., see these two articles here:



    Also interesting is this section of the 'criminal defamation' statute: "A person may not 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 or nolo contendere."

    The person Lenio was tweeting to was Jon Hutson. Here is the tweet that started it all. Hutson had tweeted #Freespeech will not be silenced, even as gunfire erupts at a cafe and a synagogue in Copenhagen nyti.ms/1JekeiA #terrorism, and Lenio responded to Hutson with a cartoon of a sneering American guy pissing on the Israeli star.

    Following is the relevent section reagrding the 'criminal defamation of jews' charge. It's from Pages 14-19 of the STATE'S RESPONSE TO DEFENDANT'S OMNIBUS MOTION TO DISMISS. Some of the legal case references have been removed here for ease of reading.

    NOTE: The Flathead County Missouri County Attorney's office can be contacted here.
    Phone: (406) 758-5630
    Fax: Fax (406) 758-5642
    COUNTY ATTORNEY: Ed Corrigan. His Email: County.Attorney@flathead.mt.gov
    MAILING ADDRESS:
    920 S. Main St.
    Suite 201
    Kalispell, MT 59901


    b. The criminal defamation statute, codified at § 45-8-212, MCA, is not unconstitutionally overbroad.
    i. Definition of a group, class, or association

    Lenio next argues the criminal defamation statute, § 45-8-212, MCA, is facially overbroad because the statute does not define "person, or a group, class, or association." Def. Omnibus Mtn. to Dismiss, 15 (May 6, 2015).

    The criminal defamation statute provides:

    (1) Defamatory matter is anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's or its business or occupation.

    (2) Whoever, with knowledge of its defamatory character, orally, in writing, or by any other means, including by electronic communication, as defined in 45-8-213, 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;
    (b) the communication is absolutely privileged;
    ( c) 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 the interest or duty.

    (4)A person may not 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 or nolo contendere.

    Section 45-8-212, MCA.

    When construing a statute, a court should simply "ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted."' Spoklie v. Mont. Dept. of Fish, Wildlife & Parks, 2002 MT 228, ~ 24, 311 Mont. 427, 56 P.3d 349 (quoting§ 1-2-101, MCA). A court must attempt to carry out the legislature's intent when interpreting a statute and look to the plain meaning of the words used. The plain meaning of the words used controls where the statute does not provide a specific statutory definition. Spoklie, ~ 25. In discerning the plain meaning, ''the words used shall be reasonably and logically interpreted, so as to give them their usual and ordinary meaning."




    The words "a group, class, or association" have ordinary meaning and do not require specific statutory definition. By the plain statutory language, the Montana Legislature intended criminal defamation to apply to more than just an individual. If the legislature intended criminal defamation to only apply to individuals, the statute would not also provide for defamation of a group, class, or association.

    Lenio seeks to have the Court read into the criminal defamation statute a requirement of a size of a group, class, or association. This strikes against the statutory construction rule against inserting language that was omitted by the legislature. Additionally, Lenio looks to civil law to define the size of group of people defamed. This is problematic because in a civil claim for libel, an individual plaintiff must bring a suit to seek monetary damages, whereas in criminal law the State files charges against offenders on behalf of its citizens. State has a substantial interest in protecting society from threatening speech while the benefits derived from such speech are minuscule. Merely because the legislature defined criminal defamation distinctly from civil defamation does not render the criminal law overbroad.

    Lenio does not establish beyond a reasonable doubt that § 45-8-212, MCA is facially overbroad because it is not limited to cases against individuals or small groups of people. Lenio does not establish how the statute reaches protected speech in a substantial number of cases. Simply because Lenio wishes to limit criminal defamation to those cases where an individual could bring a civil lawsuit does not render the statute overly broad.

    In the instant case, Lenio communicated numerous defamatory comments to kill Jewish people and asserts Jewish people have degraded the national economy. Lenio does not demonstrate how defamatory statements directed at a religious group of people unconstitutionally captures more protected speech than defamatory threats against an individual. As provided in the Affidavit, Lenio states the holocaust was a lie and it is "time to hunt the Nazi hunters." Affidavit, 4 (Feb. 28, 2015). This is merely one example of Lenio' s statements intended to attack Jewish people based on religion.



    When construed, the criminal defamation statute prohibits a person from communicating, something that exposes a person or group, class or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's business or occupation.
    Section 45-8-212(1), MCA. The communication must be made with knowledge of the defamatory character of the statement. Section 45- 5-212( l ), MCA. Additionally, the communication is permitted under a number of circumstances, including if the defamatory statement is true or if the communication is a fair comment made in good faith regarding persons in matters of public concern. Section 45-8-212(3), MCA. The statute therefore is limited to communications made with the intent to expose a person, group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's business or occupation. Lenio does not establish how § 45-8-212, MCA, when construed in its entirety, is overbroad.

    ii. Actual malice

    Lenio also argues the criminal defamation statute is facially overbroad because the statute does not require a finding of actual malice. Lenio again looks to civil defamation law to support his position. In New York Times Co. v. Sullivan, the United States Supreme Court held that a public official must establish actual malice, defined as knowledge the statement is false or with reckless disregard for the truth, in order to be awarded damages for a defamatory falsehood regarding the official's conduct. 376 U.S. 254, 279-80, 84 S. Ct. 710, 721, 11L.Ed2d 686, 706 (1964). Lenio argues this requirement should be read into§ 45-8-212, MCA.

    Again, Lenio overlooks the rules of statutory construction. Further, the criminal defamation statute is narrowed to those communications made with knowledge of the defamatory character to expose a person, group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's business or occupation. Section 45-8-212, MCA. (Emphasis added.) Additionally, the statute does not include defamatory statements that are true or communicated with privilege; or if the communication is a fair comment made in good faith with respect to persons in matters of public concern; or the communication includes a fair and true report or fair summary of any judicial, legislative, or other public or official proceeding; or the communication is between persons with an interest or duty with respect to the subject matter of the communication and made with the purpose to further the interest or duty. Section 45-8-212(3), MCA.




    In Garrison v. Louisiana, the United States Supreme Court considered a district attorney's prosecution for comments that the backlog of criminal cases was due to inefficiency, laziness, and excessive vacations of judges and the judges hindered efforts to enforce the laws by refusing to authorize funding for undercover investigations. 379 U.S. 64, 65, 85 S. Ct. 209, 210, 131 L.Ed. 2d 125, 128 (1964). The Court held:
    That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
    Garrison, 379 U.S. at 75, 85 S.Ct. at 216, 131 L.Ed. 2d at 133.

    The Court held that the statute under which the district attorney was prosecuted was unconstitutional on several grounds because the communication related to a public official's official duties. Garrison, 379 U.S. at 77-78, 85 S.C.t at 217, 131 L.Ed. 2d at 134-35.



    In State v. Helfrich, the defendant appealed his conviction for defamation under a previous version of § 45-8-212, MCA on the ground the statute was overly broad because it did not provide for truth as an absolute defense. 277 Mont 452, 455, 922 P .2d 1159, 1161 ( 1996). The previous version of § 45-8-212, MCA provided a defense to criminal defamation only if the "the defamatory matter is true and is communicated with good motives and for justifiable ends." Section 45-8-212, MCA (1993). (Emphasis added.) The Court recognized that in civil defamation cases, truth is an absolute defense. Helfrich, 227 Mont. at 455-56, 922 P.2d at 1161. The Court found the defamation statue was unconstitutionally overbroad, and in conflict with the United States Supreme Court holdings in New York Time and Garrison, because it did not provide for truth as a complete defense. Helfrich, 227 Mont at 458, 922 P.2d at 1162. Subsequently, the Montana Legislature amended § 45-8-212, MCA to eliminate the offending language and provided truth as a complete defense to criminal defamation. Section 45-8-212, MCA (1997).

    The circumstances in this case differ from those in Garrison. The vast majority of Lenio's statements regarding Jewish people do not relate to a public official. Instead, his comments address Jewish people as a collective class of people. Lenio argues his statements about Jewish people "cannot reasonably be understood to be factual assertions." Def. Omnibus Mot. to Dismiss, 20 (May 2, 2015).

    To the contrary, Lenio states in his Twitter postings, "Now that the holocaust has been proven to be a lie beyond a reasonable doubt, it is now time to hunt the Nazi hunters." Affidavit, 4 (Feb. 18, 2015). It is clear from Lenio's communications he is asserting the statements as if they were fact. Further, § 45-8- 212(3)(c), MCA provides that no violation of the criminal defamation statute occurs if the communication is a "fair comment made in good faith" with respect to people in matters of public concern. The statute appropriately allows for discourse on matters of public concern. The Montana Supreme Court considered the constitutionality of § 45-8-212, MCA in Helfrich, as well as the US Supreme Court opinions in New York Times and Garrison. Helfrich, 277 Mont at 458, 922 P.2d at 1162.

    The Helfrich Court's holding demonstrates that Montana Supreme Court found the statute was not unconstitutionally overbroad once truth was made a complete defense. Statutes are presumed constitutional and are to be construed to avoid unconstitutional interpretation. Stock, ~ 19. Lenio has not established beyond a reasonable doubt that the criminal defamation statute is overly broad in a substantial number of applications. His motion to dismiss Count II: Criminal Defamation should be denied.

    [FULL DOCUMENT CAN BE FOUND IN PDF FORM HERE.]



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    Martin Hill is a Catholic paleoconservative and civil rights advocate. His work has been featured in the Los Angeles Daily News, San Gabriel Valley Tribune, The Orange County Register, KNBC4 TV Los Angeles, The Press Enterprise, LewRockwell.com, WhatReallyHappened.com, Infowars.com, PrisonPlanet.com, Economic Policy Journal, TargetLiberty.com, FreedomsPhoenix, Haaretz, TMZ, Veterans Today, Jonathan Turley blog, The Dr. Katherine Albrecht Show, National Motorists Association, AmericanFreePress.net, RomanCatholicReport.com, WorldNetDaily, HenryMakow.com, OverdriveOnline.com, Educate-Yourself.org, TexeMarrs.com, Dr. Kevin Barrett's Truth Jihad radio show, Strike-The-Root.com, Pasadena Weekly, ActivistPost.com, Los Angeles Catholic Lay Mission Newspaper, KFI AM 640, IamtheWitness.com, Redlands Daily Facts, SaveTheMales.ca, BlackBoxVoting, The Michael Badnarik Show, The Wayne Madsen Report, Devvy.com, Rense.com, FromTheTrenchesWorldReport.com, BeforeItsNews.com, The Contra Costa Times, Pasadena Star News, Silicon Valley Mercury News, Long Beach Press Telegram, Inland Valley Daily Bulletin, L.A. Harbor Daily Breeze, CopBlock.org, DavidIcke.com, Whittier Daily News, KCLA FM Hollywood, The Fullerton Observer, Antiwar.com, From The Trenches World Report, and many others. Archives can be found at LibertyFight.com and DontWakeMeUp.Org.



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