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”
……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 voicing any 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.”
……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.”
I don’t like what Lenio said either. But his speech, no matter how offensive, is protected under the First Amendment. “Libel” and “slander”, albeit valid causes for civil suits, are being warped to the nth degree to soothe the hurt feelings of perpetually outraged groups/individuals. No one has the right not to be offended. It comes with the Constitutional territory.
On the other hand, Al Sharpton and Jesse Jackson take every available opportunity to throw gasoline on the race fire. (Ferguson, Baltimore) They don’t get arrested or prosecuted for what can easily be identified as ‘incitement’.
Muzzie extremists post “death to Jews, infidels, Christians, unbelievers” on Facebook, Twitter, and other social media. To my knowledge, they’re only arrested when they make direct, specific threats. IMO, why wait, especially when they’ve established a pattern of inflammatory rhetoric usually followed by terrorist acts.
Muzzies (and B. Hussein) pose more of a threat than any other extremist group in the country. But, following the free speech guidelines set by the Constitution and the Supreme Court, the speech has to cross a line before it’s considered threatening. From what I’ve seen, the line keeps moving.
Personally, I want them to keep announcing their intentions. First of all, it lets everyone know what they’re doing, and secondly, it makes it a hell of a lot easier to track and identify the enemy. I like them right out in the open. If they hide in the shadows, it makes it more difficult.
There’s a growing contingent of groups/individuals who want everything that makes them feel ‘victimized’, criminalized. Gays, minorities, leftwing moonbats, you name it, try to censor anything that offends them through “lawfare”, and sometimes violence.
Lenio’s written opinion is certainly offensive, but is it illegal? The dangerous precedent here is that the court not only wants to prosecute him for “intimidation” but also, that he made “defamatory statements” about Jews by saying they wreak economic havoc, don’t tolerate free speech, and that the ‘Holocaust was a lie’.
Any sane person would know that the Holocaust is a historical fact. The Nazis were very meticulous about keeping the records of dates, names, places and circumstances of those they murdered in the concentration camps. They were proud of it. Mass graves, ovens, gas chambers, all stand in stark testimony of the atrocity. Lenio’s opinion will not change that, and has absolutely no effect on the outcome.
As far as his statement:
“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…”, the Reason blogger brought up this point of contention:
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?
If his comment about ‘shooting kikes’ is considered a threat, then investigate the matter to see if he’s a viable threat or if he’s just spouting hot air. The Holocaust denial is free speech whether you like it or not.
I sincerely hope that this ‘defamation’ charge is dropped; not necessarily for Lenio’s sake, but for the sake of the First Amendment.