Gomer Kidston’s Litigious Threats Have No Legal Standing

We fail to see what Martin “Gomer” Kidston thinks might provide him with sufficient grounds to sue Missoula’s college radio station, KBGA.

It’s true that the Outer Limits have described his Current as inaccurate and at times even referred to his writing as a “fabrication.”

And yes, we also pinned the word “liar” on “Gomer.” What (among other elemental deficiencies) short-circuits any purported pathway to a successful libel action, is the inclusion of the William Skink excerpt in which Mr. Skink’s colloquy with “Gomer,” concerning “Gomer’s” inaccurate reporting of Mr. Wardell’s Monday Council allocution, is recounted.

“Gomer” as much as admits that he made up the Mr. Wardell quotes when he explains that Mr. Wardell’s citizen comment remarks were, in his view, “rambling and incoherent at best”. He just made up what he sort of thought maybe he remembered what Wardell might have said.

He published that deliberate falsehood – as fact.

Sounds like a lie to us.

And one who lies, is after all, a liar.


It is truly appalling that anyone such as “Gomer,” who holds himself out as a journalist, would be so lazy and reckless as to fabricate quotes made to government officials or a government body, particularly when the guess involves transforming the citizen’s pledge of nonviolence into an admission of making terrorist threats against City officials.

Given the highly publicized detention and felony prosecution of SSgt. Bryant on allegation of making terrorist threats  – like Mr. Wardell, a weekly City Council attendee who commented in opposition to misuse of Tax Increment Financing (TIF) – “Gomer’s” gross lack of due diligence and false description of Mr. Wardell’s City Council comments certainly seems likely to damage Mr. Wardell’s community reputation, among those who know of him by sight.

All “Gomer'” had to do, in order to get it right, was to view the video of the meeting readily accessible on demand at no charge to anyone with internet access. Additionally, many readers of the Current regularly notice the factually anemic, personally opinionated and derogatory character of “Gomer’s” articles regarding TIF opponents and other matters. To call the Current a “newspaper” is quite generous indeed.

As we’ve pointed out, it was an incredible lapse in journalistic method, editorial review, and faculty adviser oversight for the Hellgate Lance to publish an article about its lockdown accompanying Mayor Engan’s imposition of Martial Law, in which the student reporter without attribution or minimal investigation, reported as fact the facially false assertion that the rooftop snipers and armored personnel carrier were a defensive reaction to SSgt. Brandon Bryant (USAF, ret.) firing shots at a police car downtown.

In reality, as the Outer Limits reported following examination of publicly-accessible official City emails, SSgt. Bryant was jailed the day before the lockdown, after correspondence between Missoula City Council President Bryan von Lossberg and City Procurator Jim Nugent, for allegedly threatening words uttered by SSgt. Bryant in a Youtube video provided to von Lossberg by a cyberstalker of SSgt. Bryant known as Maj. Richard Rynearson (USAF, ret.).

The film in question, that was sent to the Council was a cut-and-paste collage that was not assembled by the accused, and not sent to the Council by the accused. Nevertheless, local media have recklessly and repeatedly made reference to the “Pick Your Battles” Youtube channel as belonging to Ssgt. Bryant, despite evidence to the contrary, including the address of Bryant’s actual Youtube channel.

But there is at least the mitigating and comforting knowledge that the Lance’s historically inconsistent and catastrophically embarrassing mistakes were the errors of a teenager. In the case of “Gomer'” Kidston, a grown adult, there is no readily apparent excuse. In both episodes, the errors are the results of failures of writers to exercise reasonable due diligence.

Given the youth of the Lance writer, the fact that the writer was personally locked down inside Hellgate High School, and the public confusion and conflation of facts in rumors arising from the persecution of SSgt. Bryant and the commands issued to armed forces the next day from the Emergency Operations Center directed by Mayor Engen, it’s difficult to ascribe more than gross negligence to the Lance reporter’s lack of due diligence.

But in “Gomer” Kidston’s case, we’re dealing with a grown adult who publishes a newsprint and electronic rag that, as we have noted, was deemed bona fide enough to quash a legal challenge to The Missoulian’s acquisition of The Missoula Independent alleging the establishment of a newspaper monopoly in Missoula. The Current reports on all manner of happenings and civic affairs.

If not libeled, Mr. Wardell was certainly held out in a false light by “Gomer’s” lack of due diligence. The omission of his name from Gomer’s article is perhaps the sole circumstance that significantly impedes legal action by Mr. Wardell, though his frequent attendance and citizen comments reduce that impediment by making it more likely that others surmised who the alleged public threat propagator was.

As journalists familiar with New York Times vs. Sullivan, if Mr. Wardell’s City Council commentaries on Monday evenings in Council Chambers broadcast live on Missoula Community Access Television (MCAT) make him a sort of public figure, in order for him to sustain a libel action he would need to prove that the defendant’s allegedly defamatory statement was not merely false, but also was published with actual malice, that is, with knowledge of its falsity and an intent to injure, or with reckless disregard for the truth.

The Outer Limits offers no opinion as to whether Mr. Wardell is a public figure. But one must admit that based on “Gomer’s” admissions to William Skink, “Gomer’s” appalling lack of due diligence certainly emits an odor resembling, at minimum, reckless disregard for the truth.

Turning now to our commentary regarding Kidston that led the paragon of pulp journalism to burst through the KBGA boardroom door like a moronic ghoul from ‘Night of the Living Dead’, virtually every swipe taken at “Gomer” was obvious opinion; items asserted as fact were either matters of public record, or written or oral statements by “Gomer” himself.

Finally, there was lampooning of Mr. Kidston who – by publishing a newspaper featuring his own bylined articles replete with factual, grammatical, and stylistic errors exemplifying editorial incompetence – has by foisting his puppy training aid upon the public, invited the public’s praise or ridicule, depending upon one’s intellectual and political sophistication.

Other statements of opinion (and lampooning) include bestowing the honorific title “useful idiot” onto Mr. Kidston. But who isn’t flattered to be described as useful?


As for the nickname “Gomer” which we’ve affixed to Current writer-publisher Kidston, it’s our understanding that Mr. Kidston alleges to have served in the Marines. Every Boomer raised in a family possessing an idiot box is no doubt familiar with the affable, optimistic, smiling, vociferous Gomer Pyle, U.S.M.C., the lead character in a multi-season sit-com of the same name, featuring the late Jim Nabors in the role of Private Pyle, the goofy but lovable daily headache of hothead Sgt. Carter.

From the imagery of our description of “Gomer” Kidston bursting into the KBGA board meeting, yelling and ranting and threatening attendees, it seems that the “Gomer” nickname for the useful idiot indeed made us guilty of propagating a misnomer, for such brash, churlish, unhinged conduct is the behavioral signature not of Gomer Pyle, but of Sgt. Carter. Perhaps that is at the root of Kidston’s rabid mania, which is certainly understandable. But as mentioned, our focus deviated to Kubrick’s adaptation of Gomer Pyle, since Kidston now bears the responsibility of being exposed for smuggling the metaphorical jelly doughnut of outright libel into the footlocker of his Missoula Current; in this case, the lies and obfuscations he and his advertisers hope nobody else will notice.

But nobody could have predicted the bizarre response from KBGA staff to “Gomer’s” storming of the board meeting. The response by any experienced faculty advisor to a foaming-at-the-mouth bombast making editorial demands and threatening to sue, would be on the order of:

“Your constructive criticism is greatly appreciated. Good day, sir.”

That’s standard response from all editors and publishers of newspapers that adhere to good journalistic practice, such that the editors and publishers unequivocally back up reporters and columnists.

cribbageWhy did the KBGA board members not respond to “Gomer” with “Call tomorrow, make an appointment, and until then get the Hell out of here before we call campus police!”?

Unless the station is totally independent from the University of Montana, the directive to first avoid discussing the Brandon Bryant affair on the air, then to avoid important local issues for two weeks (during the station donation drive), in combination with the “Gomer” boardroom invasion that resulted in the preemptive axing of the Outer Limits broadcast, seems gravely concerning.

As a state entity, the Montana University System is “The State” with respect to the First Amendment and the Montana Constitution’s guarantee of free expression. That is not to say that format is not subject to station management prerogatives, but if the station management is in the hands of university personnel or officials, content-based censorship other than of obscenity or libelous material, raises the specter of constitutional violations. Of course, if a community radio station is a mere tenant of a university campus, the university has the right to decline to renew a lease, etc.

But from a purely journalistic standpoint, what in the actual fuck is going on here? Doesn’t the station administration have a lawyer available to advise whether content is libelous or not? Why is the station administration so sensitive to the complaints of a hack who disparages citizen activists, makes up direct quotes, and can’t handle criticism?

The reference in the letter from station administration referring to complaints from “listeners” is a brazen insult to intelligence. Who exactly are these complaining “listeners?” The listener base of the Outer Limits is, by all accounts, a loyal cult of Missoulians who share the cynicism of the show’s producers and adore the show’s creative satire. Recently, we’ve heard that Nick Checota tunes in as well, and we might easily imagine that the growing listenership might include “Gomer” Kidston, City Council President von Lossberg, legal eagle Jim Nugent, and perhaps even Mayor Engen himself.

Are these the “listeners” who are complaining? It would make sense, since they’re accustomed to the adulation of the many oligarch-serving propaganda outlets posing as news organizations in Missoula.


If the station is in fact an appendage of the university, it’s possible that the university’s institutional memory still smarts from a libel suit brought 36 years ago against the university, its student newspaper The Montana Kaimin, and its then-editor Carey Yunker.

In an October 8, 1974 editorial, Yunker labeled Madison, the director of the UM print shop, as an incompetent “congenital liar:”

“One of the memos is from Al Madison. His position, director of the University print shop, alone makes anything he would say on the matter suspect. As well, he is a congenital liar, an incompetent whose own operation has lost $103,914.89 in the last four years.”

SINCE1898Madison sued Yunker, The Kaimin, and UM for libel, seeking special, general, and punitive or exemplary damages in the aggregate amount of $102,000.  Madison alleged that defendant Yunker, acting in her capacity as editor of the Montana Kaimin, deliberately and maliciously libeled him by publishing false defamatory statements. Former 64-203, R.C.M. 1947, defined libel, in relevant part, as follows:

“Libel is a false and unprivileged publication by writing, printing * * * which exposes any persons 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.”

The defendants moved to dismiss on grounds that Madison had not complied with a Montana statute then in effect that required a person alleging defamation, as a prerequisite to filing a lawsuit, to first demand a retraction, and permitting the filing of a lawsuit only in the event no retraction complying with the statute was forthcoming. The statute, former section 64-207.1, R.C.M. 1947, provided as follows:

“Before any civil action shall be commenced on account of any libelous or defamatory publication in any newspaper, magazine, periodical, radio or television station, or cable television system, the libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous or defamatory matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty. The first issue of a newspaper, magazine or periodical published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction. In the case of radio and television stations and cable television systems a broadcast made at the same time of day as the broadcast complained of and of at least equal duration, which is made within seven (7) days following receipt of such notice shall be within a reasonable time for correction. To the extent that the true facts are, with reasonable diligence, ascertainable with definiteness and certainty, only a retraction shall constitute a correction; otherwise the publication of the libeled person’s statement of the true facts, of so much thereof as shall not be libelous or another, scurrilous, or otherwise improper for publication, published as his statement, shall constitute a correction within the meaning of this section. If it shall appear upon trial that the publication was made under honest mistake or misapprehension, then a correction, timely published, without comment, in a position and type as prominent as the alleged libel, or in a broadcast made at the same time of day as the broadcast complained of and of at least equal duration, shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in mitigation of actual damages to the extent the correction published does so mitigate them.” (Emphasis added.)

Madison countered that the retraction statute conflicted with the provision of the Montana Constitution, Article II, section 16, guaranteeing every person a speedy and adequate remedy at law for ever injury to person, property or character.

The District Court granted Yunker’s and the other defendants’ motions to dismiss based on Madison’s failure to demand a retraction, and upheld the constitutionality of the retraction statute. Madison appealed to the Montana Supreme Court.

The Montana Supreme Court, in Madison v. Yunker (1978), 180 Mont. 54, 67, 589 P.2d 126, 133, struck down the statute requiring a retraction demand prior to filing a defamation action case, agreeing that it violated the  Montana Constitutional guarantee of a right to speedy judicial remedy for every injury to person, property or character.

Of more relevance, the Montana Supreme Court, realizing that the New York Times v. Sullivan decision of the Supreme Court of the United States imposed certain limitations on defamation  lawsuits under the First Amendment, chose to outline the parameters within which the case was to be adjudicated on remand to the District Court. In so doing, the Montana Supreme Court adopted the defamation standard set forth in New York Times v. Sullivan, and its progeny up to that time, as being required under the Montana Constitution’s free speech, press and expression provision, Article II, section 7, independently from the First Amendment.

One of the principles established in New York Times v. Sullivan is that truth is an absolute defense. Another is that a public official or public figure may not be awarded judgment for defamation absent proof that the defendant published injurious falsehoods deliberately or did so with reckless disregard for its truth or falsity.

Rather than paraphrase or summarize that portion of the Montana Supreme Court’s opinion in Yunker v. Madison, we reproduce it here:

“Having determined that the statute which brought about the dismissal of plaintiff’s suit is unconstitutional, we must send this cause back for further proceedings. In doing so, however, we are obliged to state, for guidance of the District Court, certain restrictions on libel suits and the damages obtainable therein which now apply. In doing so, we can perhaps obviate, or at lease ease, the fears which will rise in the breasts of publishers, editors, and broadcasters upon publication of this opinion.

“Although the United States Supreme Court has recognized that a state may provide for libel suits (Gertz v. Robert Welch Inc., supra), there has been a substantial development in cases from that court which is in itself a protection to publishers because it limits the right to damages. These restrictions on damages are in themselves a deterrent to the barrage of libel suits that publishers might otherwise fear.

“The development begins with New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 ALR 1912. There, the United States Supreme Court found that the dissemination of news was so important that news media should be protected from libel judgments, and should also be shielded from their own “self-censorship” brought about by fear of libel suits. The Supreme Court held that a public official could not recover on a claim for defamation unless “actual malice” had been present. Implied or presumed malice was out. “Malice” meant publication of the defaming material with a “knowledge that it was false, or with reckless disregard of whether it was false or not”. The burden of proof was on the plaintiff to prove that kind of malice with convincing clarity. The court found that the First Amendment permitted, on public issues, vehement, caustic and some and sometimes sharp attacks on public officials.

“In Garrison v. Louisiana (1964), 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, the New York Times rule was extended to a public official’s private reputation, as well as his public reputation.

“In Curtis Publishing Company v. Butts, and Associated Press v. Walker (1967), reported together in 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, reh. den. 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197 (1967), the court extended the New York Times rule to public figures. “Public figures” are defined in Gertz v. Robert Welch, Inc., supra:

‘For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.’ 418 U.S. at 345, 94 S.Ct. At 3009.

“Finally, in Gertz v. Robert Welch, Inc., supra, the Supreme Court, while allowing states to provide for libel suits, erected a fence around the amount of damages recoverable:

‘We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent  evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

‘We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.’ 418 U.S. at 349, 350, 94 S.Ct. At 3012.

“In this case, defendants have constantly referred to Madison as a “public official”, apparently to bring this case under the umbrella of New York Times Co. v. Sullivan, supra. We are skeptical that the director of the print shop at the University of Montana, Missoula, Montana, is indeed a “public official”. In Gertz v. Robert Welch, Inc., supra, it was held that a lawyer was not a public official, although he had taken on a prominent case and was by virtue of his profession an officer of the court. Likewise, it may be contended in the retrial that Madison is a “public figure”. Whatever his status, it is a question for the jury to determine, because of the constitutional provision that the jury under the instructions of the court is the judge of both law and fact. Article II, Section 7, 1972 Montana Constitution. With appropriate instructions,  the jury can determine these matters and their status in any trial, unless otherwise stipulated.

“In this case, therefore, applying the rationale of the cases of the United States Supreme Court on damages for libel, if Madison is considered to be a private person, he must prove: (1) that the published material was false; (2) that defendants are chargeable with fault in the publication; and (3) that actual injury to him ensued, for which he may recover his actual damages. Moreover, (4) if he proves that the publication was made by defendants with knowledge of its falsity or in reckless disregard for the truth or falsities thereof, he may recover punitive damages for such malice, but such malice does not include hatred, personal spite, ill-will, or a desire to injure. New York Times Co. v. Sullivan, supra; Letter Carriers v. Austin (1974), 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745.

“If Madison is a public official or public figure, he may recover only if he proves the threshold fact that the publication was made with knowledge of its falsity or reckless disregard for its truth or falsity. He could then recover his actual and punitive damages.

“We now, therefore, reverse the judgment and order of dismissal of plaintiff’s complaint by the District Court and remand the cause to the District Court for further proceedings, consonant with this opinion. Costs to the plaintiff.”

So, from that, you can see that if a jury determined that “Gomer” was indeed a liar, that would result in a judgment for the defense and Kidston would take nothing, because truth is a defense to libel.

If the defense of truth was not deemed established by a jury, the next issue involves whether “Gomer” legally qualifies as a public official or public figure. There is nothing to suggest that he is a public official, so the public figure question would be pondered.

It seems inappropriate for us to provide opinions as to whether Kidston likely does or does not qualify as a public figure based upon his actions and publications. But if he were deemed a public figure by the jury, then he would, in order to prevail, have to convince the jury by clear and convincing evidence – a higher standard than a preponderance of evidence (meaning it’s more likely than not), but lower standard than beyond a reasonable doubt – that the defendants published the offensive content with actual malice; that is, deliberately published false matter, or published false matter with reckless disregard of its truth or falsity.

“Reckless disregard for the truth” means substantial doubt as to its truth. “Clear and convincing” means that the proposition is “highly probable.” A determination whether actual malice existed would have to be made within the narrow guidelines that the First Amendment and Article II, section 7 of the Montana Constitution permit, on public issues, “vehement, caustic and sometimes unpleasantly sharp attacks on public officials and public figures.”

Kidston would then have to prove that he was damaged in his public or private reputation. His life would become something of an open book and witnesses regarding his reputation in the community and/or their personal opinions of his character could be called by both sides. Witnesses testifying to his previously pristine reputation could be asked by the defendants on cross examination questions such as “Have you heard that ___________” (relating some embarrassing event in the plaintiff’s past”). If the witness says “Yes,” it tends to undermine the witness’s credibility, and the same if asked “would you have the same opinion if you knew that ________?” Evidence of the embarrassing past event must be presented.

Assuming that “Gomer” cleared all of those hurdles, and established that he had been damaged, he could seek to recover both actual and punitive damages.

If a jury decided that “Gomer” was not a public figure, then mere negligence would be adequate to find a defendant liable for defamation, but he still could not collect punitive damages unless he proved actual malice (deliberate publication of a defamatory falsehood, or publication of such a falsehood with reckless disregard of its truth or falsity).

Cornell University Law School weighs in on the subject of defamation. Note in particular the narrowed definition of “public figure”:

“…One of the most seminal shifts in constitutional jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan. The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King, and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court’s judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be foreclosed by the ‘label’ attached to something. ‘Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.’ ‘The general proposition,’ the Court continued, ‘that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ Because the advertisement was ‘an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection . . . [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.’

“Erroneous statement is protected, the Court asserted, there being no exception ‘for any test of truth.’ Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects. Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and ‘[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.’ That neither factual error nor defamatory content could penetrate the protective circle of the First Amendment was the ‘lesson’ to be drawn from the great debate over the Sedition Act of 1798, which the Court reviewed in some detail to discern the ‘central meaning of the First Amendment.’ Thus, it appears, the libel law under consideration failed the test of constitutionality because of its kinship with seditious libel, which violated the “central meaning of the First Amendment.’ The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’

“In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Frankfurter had relied in analogy to uphold the group libel law in Beauharnais. In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana held that a statute that did not incorporate the Times rule of ‘actual malice’ was invalid, while in Ashton v. Kentucky a common-law definition of criminal libel as ‘any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable’ was too vague to be constitutional.

“The teaching of Times and the cases following it is that expression on matters of public interest is protected by the First Amendment. Within that area of protection is commentary about the public actions of individuals. The fact that expression contains falsehoods does not deprive it of protection, because otherwise such expression in the public interest would be deterred by monetary judgments and self-censorship imposed for fear of judgments. But, over the years, the Court has developed an increasingly complex set of standards governing who is protected to what degree with respect to which matters of public and private interest.

“Individuals to whom the Times rule applies presented one of the first issues for determination. At times, the Court has keyed it to the importance of the position held. ‘There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.’ But this focus seems to have become diffused and the concept of ‘public official’ has appeared to take on overtones of anyone holding public elective or appointive office. Moreover, candidates for public office were subject to the Times rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected.

“Thus, a wide range of reporting about both public officials and candidates is protected. Certainly, the conduct of official duties by public officials is subject to the widest scrutiny and criticism. But the Court has held as well that criticism that reflects generally upon an official’s integrity and honesty is protected. Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.

“For a time, the Court’s decisional process threatened to expand the Times privilege so as to obliterate the distinction between private and public figures. First, the Court created a subcategory of ‘public figure,’ which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Warren’s words, those persons who are ‘intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’ Later, the Court curtailed the definition of ‘public figure’ by playing down the matter of public interest and emphasizing the voluntariness of the assumption of a role in public affairs that will make of one a ‘public figure.’

“Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing. But, in Gertz v. Robert Welch, Inc. the Court set off on a new path of limiting recovery for defamation by private persons. Henceforth, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of ‘actual malice.’

“The Court’s opinion by Justice Powell established competing constitutional considerations. On the one hand, imposition upon the press of liability for every misstatement would deter not only false speech but much truth as well; the possibility that the press might have to prove everything it prints would lead to self-censorship and the consequent deprivation of the public of access to information. On the other hand, there is a legitimate state interest in compensating individuals for the harm inflicted on them by defamatory falsehoods. An individual’s right to the protection of his own good name is, at bottom, but a reflection of our society’s concept of the worth of the individual. Therefore, an accommodation must be reached. The Times rule had been a proper accommodation when public officials or public figures were concerned, inasmuch as by their own efforts they had brought themselves into the public eye, had created a need in the public for information about them, and had at the same time attained an ability to counter defamatory falsehoods published about them. Private individuals are not in the same position and need greater protection. ‘We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.’ Thus, some degree of fault must be shown.

“Generally, juries may award substantial damages in tort for presumed injury to reputation merely upon a showing of publication. But this discretion of juries had the potential to inhibit the exercise of freedom of the press, and moreover permitted juries to penalize unpopular opinion through the awarding of damages. Therefore, defamation plaintiffs who do not prove actual malice—that is, knowledge of falsity or reckless disregard for the truth—will be limited to compensation for actual provable injuries, such as out-of-pocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering. A plaintiff who proves actual malice will be entitled as well to collect punitive damages. …”


All opinions herein are the opinions of Gabrielle Lafayette, not professional legal opinions. To procure legal advice upon which to rely in making decisions in these matters, one must obtain legal advice from a lawyer actively licensed to practice in Montana, who possesses defamation law competence.

By providing recitation of some general principle and references to, and excerpts from, United States Supreme Court and Montana Supreme Court decisions concerning the law of defamation as shaped by the Montana and Federal Constitutions and a Cornell scholarly article, we’ve simply steered the reader to authorities likely encountered should further review and research on this topic be performed.

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