Brad Zimmerman will most likely not be testing the constitutionality of Montana’s criminal defamation law, according to his public defender, Greg Hood.
“We’re negotiating a deal, and it’s likely to settle now, and as a result of the settlement there will likely not be a constitutional challenge,” Hood told the Independent.
Authorities arrested Zimmerman in March and charged him with criminal defamation. The charge stems from his online account of another arrest he witnessed in downtown Kalispell, in which he claimed the police were abusive. He anonymously posted his account on Craigslist.
Nine months later, two Flathead Sheriff deputies and seven Kalispell police officers arrested Zimmerman at his home in Hungry Horse.
Zimmerman’s public defender was considering a constitutional challenge to the criminal defamation law. Hood says the U.S. Supreme Court decided in 1964 that plaintiffs must prove the defendant knowingly lied in criminal defamation cases involving public officials, but the Montana law does not acknowledge that decision.
As it turns out, a review of the videotape taken from the arresting officer’s vehicle did not corroborate Zimmerman’s story.
“It showed an incident-free arrest,” says Hood, Zimmerman’s public defender.
Hood notes that this would not have affected the constitutional case.
“Even if he was guilty as charged of violating the statute, it doesn’t change the fact that the statute is unconstitutional,” he says.
Had Hood taken the case to the supreme court and won, the city would have been required to prove that Zimmerman had intentionally lied about the arrest. Historically, it has been difficult to prove what the defendant was thinking at the time the defamatory statements were written, Hood says.
But Zimmerman’s legal problems go far beyond the defamation charges. He is currently being held in the Flathead County jail on assault charges unrelated to the blogging incident.
At this point, Hood says, it is in Zimmerman’s best interest to negotiate a plea deal on the case.
In the meantime, Scott Crichton, director of the Montana ACLU says his organization has tried to challenge Montana’s criminal defamation law in the past, and will continue looking for test cases.