No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.

History

Sources

Drafting

Committee Proposals

Delegate Proposal No. 33 (Campbell, Foster, Robinson, Monroe, Arness, Murray, Bowman): The rights of individual dignity, privacy, and free expression being essential to the well-being of a free society, the state shall not infringe upon these rights without the showing of a compelling state interest.I Mont. Const. Convention 127 (Jan. 26, 1972).

Bill of Rights Committee Proposal No. 8: No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth may given in evidence: and the jury, under the direction of the court, shall determine the law and the facts.II Mont. Const. Convention 621 (Feb. 23, 1972).

Comment on Bill of Rights Committee Proposal No. 8: The committee unanimously proposes the adoption of former Article III, Section 10 with one substantive change. The freedom of speech is extended, in line with federal decisions under the First Amendment, to cover the freedom of expression. Hopefully, this extension will provide impetus to the courts in Montana to rule on various forms of expression similar to the spoken word and the ways in which one expresses his unique personality in an effort to re-balance the general backseat status of states in the safeguarding of civil liberties. The committee wishes to stress the primacy of these guarantees in the hope that their enforcement will not continue merely in the wake of the federal case law. Other minor changes made in the section were merely stylistic in nature except for the inclusion of the word "slander" to provide protection against abuses of the free speech and press guarantees in cases of spoken as well as written word. The committee retained the established principle that in libel trials the jury shall decide the law and the facts on the theory that removal of this clause might be construed as the denial of a right. The principle is continued with the note that in cases of libel it is necessary for the prosecutor to convince both the court and the jury before the free speech and press protections are overridden (Harrington v. Butte Miners Co. et. al., 48 Mont. 550, 554).II Mont. Const. Convention 629-630 (Feb. 23, 1972).

Committee on Style, Drafting, Transition and Submission on Bill of Rights Proposal No. 8: No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.II Mont. Const. Convention 958 (Mar. 13, 1972).

Order of Business No. 5, Final Consideration of Style and Drafting on Bill of Rights Committee Proposal No. 8: No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.II Mont. Const. Convention 1038 (Mar. 22, 1972).

Final Report of Committee on Style, Drafting, Transition and Submission: No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.II Mont. Const. Convention 1087 (Mar. 22, 1972).

Adoption: The Delegates adopted the committee proposal on voice vote (one opposed) on March 7, 1972.7 Verbatim Transcript 2633-2634 (Mar. 7, 1972).

Floor Debates

March 7, 1972

Delegate Mansfield: Mr. Chairman. I move that when this committee does rise and report, after having under consideration Section 7 in the Bill of Rights, it recommends the same to be adopted. Mr President [Chairman], Section 7. The committee unanimously proposes the adoption of the former Article III-this is on page 19--Section 10, with one substantive change. The freedom of speech is extended, in line with federal decisions under the First Amendment, to cover the freedom of expression. Hopefully this extension will provide impetus to the courts in Montana to rule on various forms of expression similar to the spoken word, and the ways in which one expresses his unique personality, in an effort to rebalance the general backseat status of states in the safeguarding of civil liberties. The committee wishes to stress the primacy of these guarantees in the hope that their enforcement will not continue merely in the wake of the federal case law. Other minor changes made in the section were merely stylistic in nature, except for the inclusion of the word "slander," to provide protection against abuses of the free speech and press guarantees in cases of spoken as well as written word. The committee retained the established principle that in libel trials, the jury shall decide the law and the facts, on the theory that the removal of this clause might be construed as the denial of a right. The principle is continued, with the note that in the cases of libel it is necessary for the prosecutor to convince both the court and the jury before the free speech and press protections are overridden-Harrington versus Butte Miners Company, et al, in the Montana 550, 554, 139, page 451. I move this adoption, Mr. Chairman.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Is there any discussion? Mr. Loendorf.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Loendorf: Mr. Chairman, would Mrs. Mansfield yield to a question?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Mrs. Mansfield?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Mansfield:: If I can answer it.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Loendorf: Mrs. Mansfield, I've read your comment-and I haven't read Harrington versus the Miners Union, though-but I'm concerned about juries determing questions of law in libel cases. Would you just elaborate a bit on the reasons the committee retained that?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Mansfield: You know, I think I'll turn that over to Mr. Dahood. He's our legal--7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Dahood: Thank you, Mrs. Mansfield.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Mr. Dahood, you may have the floor.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Dahood: Very fine, Mr. Chairman. Thank you very much. In response to the question, let me say that the committee initially applied the same reasoning that is in the mind of Delegate Loendorf at this time, but research indicates to us-does indicate to us there is a historical reasons for the language as contained in that section to the effect that the jury shall determine both the law and the fact. I think to the trained legal mind, at first blush it seems inconceivable that a jury shall have the right to determine the law. But apparently in the common law days of England, the right of free speech was considered so precious that the right, with respect to whether or not the law should apply in a particular case, was left to the jury rather than to the court so that there would be no abuse of that sacred right. That particular right apparently was carried over from England to the United States, and the framers of the current Montana Constitution and Bill of Rights carried that protection into the section on free speech. There was a Montana case, which Mrs. Mansfield cited in her rationale supporting Section 7, and that particular concept was set forth in that case. We do not think that it is going to change the manner in which cases involving libel and slander are tried in the State of Montana, since the juries are still expected to take their guidance with respect to the law from the court. But it does provide the jury with leeway in the event that they should think, within their community conscience as jurors, that in this particular instance, even though there might be a technical violation of the law, the circumstances are such that there should not be any type of penalty for that violation. The jury would have the right, then, to disregard the technical aspects of the law and find that there has not been any libel in that instance, either in a case of civil libel or criminal libel. To be consistent, to expand upon the right, we've included slander within that rationale, inasmuch as juries tend to follow that particular concept for determining libel and slander cases in any event. We did not want to take away any right that the citizens of the State of Montana presently have in the current Bill of Rights, and our committee takes great pride in the fact that the proposal that you have before you now takes away nothing that the citizens of the State of Montana have, but rather expands their rights in many respects so that expanding government shall continue to be, perhaps will become, more responsible to the citizens of the State of Monana, I hope that explanation does respond to the question. Thank you.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Mr. Davis.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Davis: Mr. President [Chairman], if Mr. Dahood would yield to question?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Mr. Dahood?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Dahood: I yield, Mr. Chairman.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Davis: Mr. Dahood, subsequent to the Harrington case that-cited in 48 Montana, I believe, or whatever it is, our Supreme Court has held that while under the provisions of this section the jury in libel suits shall determine the law and the facts, the function of the trial court and jury is not greatly different from what it is in other cases. Thus, it is for the court and not the jury to pass upon the admissibility of evidence, upon motions for nonsuit, or for a directed verdict upon motions for a new trial and motions to set aside verdicts and vacate judgments. And so, libel suits, though sui juris, are subject to the rules of practice found wise and useful in administering justice generally in the courts. I know that you’ve considered this matter, but it seems like this is an archaic carryover that really isn’t being followed by the courts anyway, and I wondered if you would resist a motion to strike that portion of it.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Dahood: Yes, I do, Carl. I do resist on behalf of the committee, simply because what you have just stated was the premise upon which we approached the section at our first study session; but after reviewing the law, we find that there is general substantial reason as to why the section should remain as it is. The case that you are talking about indicates the traditional function between court and jury does apply in the libel and slander case to the point where the court will instruct the jury as to what the law is in a particular case. The court will continue to determine whether or not there is some basis for granting a motion for a new trial; the court will continue to rule upon objections with respect to the evidence. But in the event the jury in a libel suit should determine that in this particular instance, notwithstanding the facts may fall within the proscription of that particular legal rule, nevertheless the jury does have the right to disregard the law in that instance and find in favor of free speech in that instance. The Montana court would not have the right then, under that rationale, to grant a motion for a new trial. The distinction does exist, and I want to assure you, Carl, that there is reason for leaving the section as we have submitted it to this Convention.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Mr. Schiltz.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Schiltz: Will the gentleman, Mr. Dahood, yield to another question, please?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Dahood: I yield, Mr. Chairman.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Schiltz: Mr Dahood, I suspect this is in the present Constitution, and if it is it's probably always bothered me. In line 22 it says "prosecutions for libel or slander, the truth thereof." And to me libel and slander are, per se, untruthful--and then when you "thereof," it bothers me. Could we change that to "of statements" or something like that?7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Delegate Dahood: Delegate Schiltz, you raise a question that, of course, we raised; and I confess to you that there is language in some of these sections that perhaps could be stated in clearer legal language; but we thought in some of these instances we ought to pay some heed to tradition. I think all of us as lawyers appreciate that whether it’s stated in a constitutional Bill of Rights or not, truth, unless actuated by malice, is a complete defense. And rather than be concerned about changing some of the words in that section and bring down the critique of certain segments of Montana society, we thought that this might fall within the legal concept of diminutivus; something that perhaps is too trifling to require any type of major change by the committee. So we left it in its original condition. I hope and trust that explanation is satisfactory to avoid a motion to amend at this time. Thank you, Mr. Chairman.7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Chairman Graybill: Is there other discussion? Very well, the question is on Section 7. Members of the committee, you have before you, on the recommendation of Mrs. Mansfield, when this committee rises and reports after having had under consideration Section 7 of the Bill of Rights Article, that this committee recommend the same be adopted."7 Verbatim Transcript 1649-1651 (Mar. 7, 1972).

Ratification