Montana Resident Charged with Crime for Saying Holocaust Was a Lie and that Jews Hate Free Speech

In Montana, Flathead County resident David Lenio is being targeted by the local prosecutor for disparaging comments he made against Jews on Twitter.  The offensive tweets cited in his prosecution include:

David Lenio

• 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

The prosecution would be dubious enough if Lenio were solely being charged under the state's intimidation statute, i.e. that a threat was made.  First Amendment law, after all typically requires a threat against a specific individual for the threat to be unprotected by the First Amendment. However, the prosecutor is also charging Lenio separately under the state's defamation statute because of Lenio's comments that Jews have hurt the economy, dislike free speech, and that the Holocaust is a lie.

As offensive as such comments are, the First Amendment allows people to make insulting and derogatory comments about groups and classes of people.

The whole prosecution of Lenio is made possible by a Montana criminal defamation statute that is far too overbroad:

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

Naturally Lenio's attorney filed to have the law declared overbroad and, therefore, unconstitutional.  The prosecutor countered that the law is not facially overbroad because there is no prohibition on the Montana legislature adopting hate speech laws that prohibit defamatory comments involving groups or classifications of people.

Please someone send the Flathead County prosecutor a copy of the First Amendment.

UCLA law professor Eugene Volokh concludes his excellent analysis of the case:

I’m one of those “kikes” that Lenio was mentioning, though unfortunately those mega banks have been slow sending me my share of the loot. And I have nothing but contempt for statements such as Lenio’s, whatever groups they might be said about. Moreover, as I mentioned, Lenio’s specific statements, with their talk of murder, might be prosecuted as true threats of criminal conduct; there are possible problems with such a prosecution as well, but at least that’s a plausible approach.

But the Montana prosecutor has deliberately chosen to go far beyond the threats argument. Instead, the prosecutor has interpreted the Montana criminal defamation statute in a way that I don’t think any criminal defamation statute has been interpreted in decades — a way that risks criminalizing derogatory opinions as well as controversial factual statements about religious groups, racial or ethnic groups, either sex, sexual orientations, professions, political movements, and more.   

If the criminal defamation count is upheld, “hate speech” prosecutions (again, even for statements that lack any threat of violence) would become eminently viable. A dangerous potential precedent, and one that I hope the Montana courts will avoid setting.

Indeed.  If the Flathead County prosecutor has his way, any derogatory comments about groups and classes of people can constitute a crime.  If you talk about big spending Democrats, or say that Tea Party people are racist, expect to be arrested in Flathead County.  Now that I think about it, the law could work in my favor.  As a lawyer, I've heard my share jokes denigrating my profession.  Here is one:

Q: What's the difference between a jellyfish and a lawyer?
A: One's a spineless, poisonous blob. The other is a form of sea life.

Telling that joke in Flathead County, Montana could be prosecuted as a crime..