Reason – by Elizabeth Nolan Brown
Via Volokh Conspiracy, a disturbing criminal case out of Montana, where Flathead County resident David Lenio, 28, is being prosecuted for making disparaging remarks about Jews on Twitter and denying that the Holocaust happened.
Say what? While this sort of prosecution is common in parts of Europe, Americans enjoy the protection of the First Amendment, which contains no exception for what’s colloquially known as “hate speech.” The only permitted exceptions to free speech protections—as the Supreme Court recently re-articulated—are for obscenity, defamation, fraud, incitement, and “speech integral to criminal conduct.”
As Eugene Volokh explains, defamation law is generally “limited to false factual assertions. It requires a showing that the speaker knows the statement is false, and isn’t just mistaken (reasonably or not). And it requires a statement about a particular person.”
But under Montana’s ridiculously broad defamation statute, “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.” And anyone who “communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation.”
Here’s a sample of the kind of things Lenio has been arrested for tweeting:
USA needs a Hitler to rise to power and fix our #economy and i’m about ready to give my life to the cause or just shoot a bunch of #kikes …
I hope someone goes on a massive killing spree in kalispell school because I’m so poor I can’t afford housing and don’t care about your kids.
Now that the holocaust has been proven to be a lie beyond a reasonable doubt, it is now time to hunt the Nazi hunters.
#Copenhagen It’s important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag
Reasonable people may disagree on whether Lenio’s assertion that he’s going to shoot people constitutes a “true threat.” (U.S. courts have recently been grappling with something similar in a case involving Facebook statements, although in that case the potential threats were directed at specific individuals.) But it’s clear that if any illegal speech is at play here, it’s the suggestion that Lenio might commit violence, right?
The Flathead County prosecutor’s office, however, is charging Lenio not just for “intimidation” but also, independently, under the state’s defamation statute. It argues that Lenio made defamatory statements about Jews by suggesting that they have degraded the economy and dislike free speech and by stating that the Holocaust was a lie.
A Montana district court this week rejected Lenio’s motion to dismiss the charges on grounds that the statutes were unconstitutionally overbroad. “Lenio does not establish beyond a reasonable doubt that (the defamation law) is facially overbroad because it is not limited to cases against individuals or small groups of people,” the judge wrote, and he “does not establish how the statute reaches protected speech in a substantial number of cases.”
Can we pause a second there? According to this judge, it’s unimaginable how a law against voicingany negative opinion about any group of people could infringe on free speech in a substantial way.
This is not defamation as it’s commonly understood. This is, as Volokh states, “that extraordinarily rare thing: an American prosecution for “hate speech.” There’s just one tiny problem: “The First Amendment doesn’t allow that.”
While Volokh doesn’t think the Montana defamation law is unconstitutional per se, its prohibition on injurious statements about groups, classes, or associations must be “limited to relatively small groups, such as…four officers of a corporation, or twenty-five employees in a particular job category,” he writes.
But the Montana prosecutor disagrees; statements that injure the reputation of Jews as a class (or presumably Muslims, blacks, gays, men, police officers, law professors, Republicans, or any other such group as a class), the prosecutor reasons, are also covered by the statute.
If I lived in Montana as I typed something like “police officers are bullies,” “librarians have six toes apiece,” or “Montana government officials hate free speech,” I could apparently be charged with criminal defamation. That’s terrifying. And certainly unconstitutional?
Volokh points out that the Supreme Court did hold, in 1952, that “group libel” is constitutionally unprotected; yet since then, the Court and legal scholars have routinely rejected this opinion. Prevailing case law now holds that disrespectful, hateful, or “reputation-injuring” opinions—such as Lenio’s assertion that Jews “hate free speech”—cannot be punished as defamation, which is reserved for false factual assertions. What’s more, even false factual assertions cannot be considered defamatory unless the speaker knows they are false. And even deliberate falsehoods about historical matters (like the Holocaust) or economic and social issues (including the alleged behavior or characteristics of a large racial, religious, political, etc. group) are constitutionally protected as well.
The most recent ruling in this regard was United States v. Alvarez (2012), where judges opined that “laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern” would “present a grave and unacceptable danger of suppressing truthful speech.” This does not mean that “there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain,” they state, “but rather that it is perilous to permit the state to be the arbiter of truth.”
It’s not just the second article. There’s an ongoing effort to undermine ALL of our constitutional rights, and this is a foot in the door to destroying our first article rights.
Words can be more dangerous than weapons (initially), JR, IF enough people pay heed to them.
Communists HAVE to silence all their critics to stay in power.
“… it is perilous to permit the state to be the arbiter of truth.”
Perilous is an understatement.
Try suicidal.
Ernst Zundel.
The Holocaust is the Jewish swindle of 20th and 21st century. The Jews have scammed billions using this scam and persecute those who point out the facts showing that the Holocaust is a scam!
That is the kind of talk that will get you jail time now.
No one here is sweeping it under the rug.
That is MONTANA!!!! That is not California. MONTANA!!!
This evil is everywhere in our country. The Zionists are trying to stamp out any criticism no matter how slight everywhere it exists. They can’t defend their position in a reasoned debate, so like the KHAZAR warriors they are they use force. The real shame is that our people are the ones doing their dirty work for them. Who is worse? Is it the KHAZARS or the traitors among us who serve them?
Seems to me we are in a state of war with that bunch. They are part of the NWO crime syndicate. Criminal combines are at war with civilization and especially American Civilization.
Only speech that touches truth is verboten. Anyone can say and write that Jews are poor and have low IQs because it is so patently untrue. However, “Jews hate free speech,” well that touches a truth…and so it’s made illegal. It’s pretty simple what this is about: truth suppression.
Israelis as a group (and Jews make up the majority of Israelis) rank 33rd in intelligence in the list of the worlds countries; behind the US, with it’s vast amount of uneducated inner-city and bumpkin populations (my apologies to all you bumpkins who might not be as simple as the rest who live down in the holler).
Point is, the Jews are cunningly sly and I believe that is often mistaken for intelligence when one looks at the outcome of their schemes – which is an accumulation of wealth.
It’s so god-damned sickening, I’m tired of it. If I want to call a spade a spade and they don’t like it, I can tell them where to go! The “Holocaust” and WW2, a fairy tale to garner joo sympathy, was the “Biggest Lie of the 20th Century”. There, I said it, sue me.