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HELENA (AP) — A sexual slur spoken over the phone is not prohibited speech unless its intent is to threaten or offend, the Montana Supreme Court has ruled.
The Feb. 19 decision came in the case of Randall Jay Dugan of Belgrade, who was convicted of violating the state’s Privacy in Communications law for using a vulgar slur during an October 2009 phone call with a Gallatin County Victim Assistance Program worker. (The law in question, 45-8-213, says that a person violates the "privacy in communications" law if "...with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.")
Dugan, who had caused disturbances at victims’ services in the past, (Botice how this appears in the reporting as an aside. Apparently this irrelevelant fact is included in order to impugn Mr. Dugan. It is not illegal to cause a disturbance.) was seeking help in filing paperwork to obtain an order of protection against the mother of his children. She was about to be released from prison and he was concerned she was going to try to take the children.
When an employee told Dugan she could not help him and suggested he obtain the necessary paperwork from the clerk of court, Dugan became aggressive and agitated, yelled the vulgar slur at the woman and hung up the phone.
Dugan was cited. He pleaded no contest after the Justice of the Peace refused to dismiss the charge based on his appeals that his utterance was protected free speech and the privacy in communications act was vague and overly broad. (As we will see later, this point was upheld as valid.) Dugan was sentenced to 180 days in jail with all but five suspended and ordered to pay $585 in fines and fees. The sentence was stayed pending appeal to District Court. (Wow. That's quite a severe penalty for cussing at someone over the phone.)
A District Court judge also refused to dismiss the case, ruling that Dugan’s statement amounted to “fighting words,” which are not protected free speech.
The Supreme Court overturned that ruling, and noted several rulings in which the term “fighting words” is narrowly defined as those occurring in a face-to-face argument that could lead to a physical confrontation.
The justices also wrote that Dugan’s speech did not constitute an unprotected “true threat” to the woman, saying his statement was not meant to communicate an intent to commit an act of unlawful violence against her. The judges also said Dugan’s words, while rude, were not obscene because obscene material must be erotic in some significant way.
“The words used by Dugan could constitute obscenity under different circumstances, but the context suggested he uttered the words in frustration and his use is not subject to literal interpretation,” the
judges wrote.
The court did agree that the privacy in communications law was overly broad in saying that simply the use of obscene or profane language or making a threat is, on its face, proof of intent to intimidate or offend. (So the Montana Supreme Court agreed with Dugan. The law is flawed, I think fatally. The court should have thrown it out. In fact, the law is clearly in violation of the Montana and US constitution.)
The Feb. 19 decision came in the case of Randall Jay Dugan of Belgrade, who was convicted of violating the state’s Privacy in Communications law for using a vulgar slur during an October 2009 phone call with a Gallatin County Victim Assistance Program worker. (The law in question, 45-8-213, says that a person violates the "privacy in communications" law if "...with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.")
Dugan, who had caused disturbances at victims’ services in the past, (Botice how this appears in the reporting as an aside. Apparently this irrelevelant fact is included in order to impugn Mr. Dugan. It is not illegal to cause a disturbance.) was seeking help in filing paperwork to obtain an order of protection against the mother of his children. She was about to be released from prison and he was concerned she was going to try to take the children.
When an employee told Dugan she could not help him and suggested he obtain the necessary paperwork from the clerk of court, Dugan became aggressive and agitated, yelled the vulgar slur at the woman and hung up the phone.
Dugan was cited. He pleaded no contest after the Justice of the Peace refused to dismiss the charge based on his appeals that his utterance was protected free speech and the privacy in communications act was vague and overly broad. (As we will see later, this point was upheld as valid.) Dugan was sentenced to 180 days in jail with all but five suspended and ordered to pay $585 in fines and fees. The sentence was stayed pending appeal to District Court. (Wow. That's quite a severe penalty for cussing at someone over the phone.)
A District Court judge also refused to dismiss the case, ruling that Dugan’s statement amounted to “fighting words,” which are not protected free speech.
The Supreme Court overturned that ruling, and noted several rulings in which the term “fighting words” is narrowly defined as those occurring in a face-to-face argument that could lead to a physical confrontation.
The justices also wrote that Dugan’s speech did not constitute an unprotected “true threat” to the woman, saying his statement was not meant to communicate an intent to commit an act of unlawful violence against her. The judges also said Dugan’s words, while rude, were not obscene because obscene material must be erotic in some significant way.
“The words used by Dugan could constitute obscenity under different circumstances, but the context suggested he uttered the words in frustration and his use is not subject to literal interpretation,” the
judges wrote.
The court did agree that the privacy in communications law was overly broad in saying that simply the use of obscene or profane language or making a threat is, on its face, proof of intent to intimidate or offend. (So the Montana Supreme Court agreed with Dugan. The law is flawed, I think fatally. The court should have thrown it out. In fact, the law is clearly in violation of the Montana and US constitution.)
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