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HELENA (AP) — The Montana Supreme Court could be left sorting out which profane words are OK to hurl at someone as it weighs the case of a man who argues a sexual slur he used against a public employee is constitutionally protected speech.
Randall Jay Dugan of Belgrade used a sexual slur with a Gallatin County Victim Assistance Program worker during an October 2009 phone call, after the worker said she would not help him obtain a protection order against his children’s mother, who was to be released from prison. He then hung up.
Dugan was convicted under the state’s Privacy in Communications law, which prohibits the use of electronic communication to offend another person with obscene, lewd or profane language.
Dugan’s public defender, Kristen Larson, argued the state law is overly broad and violates free-speech rights in both the Montana and United States constitutions.
She argued that Dugan did not call with the intention to harass, but only used the slur after becoming exasperated with the call.
“It is important to remember that this case began with Mr. Dugan needing help,” Larson said of Dugan’s worries over the mother’s release from jail. “He was afraid she would take his children.”
The argument faced some skeptical questions from the justices.
“Are you saying the constitution no longer allows us to protect that public servant from being reamed out in a lewd way by someone who calls on the phone?” asked Justice James Rice.
Dugan called the female Gallatin County victim services’ representative a “f------ c---.”
Justice Brian Morris said the court could be put in the position of sorting out which naughty words are OK.
“If he had called the victim here a bitch, would that violate the statue?” Morris asked. “How about a jerk?”
Other Montana Supreme Court cases have held that words exchanged in face-to-face confrontations that could reasonably start a fight are not protected speech.
State prosecutors argued that Dugan’s slur constituted such “fighting words” that are not protected by the First Amendment. They argue the law is fair warning on what sort of conduct is forbidden.
Assistant Attorney General Tammy Hinderman argued that Dugan had earlier been loud and disruptive in a meeting in the county office and had been told to call back later — which led to the exchange he was charged with. And she argued the county worker has a protected privacy interest from such abusive language while in her office.
But justices quizzed prosecutors on the case, which involves telephone calls, emails or other communication technology. They pointed out that similar prosecutions around the country that have withstood constitutional scrutiny included repeated occasions of profanity over a long period of time — while Dugan used the sexual slur and then hung up.
HELENA (AP) — The Montana Supreme Court could be left sorting out which profane words are OK to hurl at someone as it weighs the case of a man who argues a sexual slur he used against a public employee is constitutionally protected speech.
Randall Jay Dugan of Belgrade used a sexual slur with a Gallatin County Victim Assistance Program worker during an October 2009 phone call, after the worker said she would not help him obtain a protection order against his children’s mother, who was to be released from prison. He then hung up.
Dugan was convicted under the state’s Privacy in Communications law, which prohibits the use of electronic communication to offend another person with obscene, lewd or profane language.
Dugan’s public defender, Kristen Larson, argued the state law is overly broad and violates free-speech rights in both the Montana and United States constitutions.
She argued that Dugan did not call with the intention to harass, but only used the slur after becoming exasperated with the call.
“It is important to remember that this case began with Mr. Dugan needing help,” Larson said of Dugan’s worries over the mother’s release from jail. “He was afraid she would take his children.”
The argument faced some skeptical questions from the justices.
“Are you saying the constitution no longer allows us to protect that public servant from being reamed out in a lewd way by someone who calls on the phone?” asked Justice James Rice.
Dugan called the female Gallatin County victim services’ representative a “f------ c---.”
Justice Brian Morris said the court could be put in the position of sorting out which naughty words are OK.
“If he had called the victim here a bitch, would that violate the statue?” Morris asked. “How about a jerk?”
Other Montana Supreme Court cases have held that words exchanged in face-to-face confrontations that could reasonably start a fight are not protected speech.
State prosecutors argued that Dugan’s slur constituted such “fighting words” that are not protected by the First Amendment. They argue the law is fair warning on what sort of conduct is forbidden.
Assistant Attorney General Tammy Hinderman argued that Dugan had earlier been loud and disruptive in a meeting in the county office and had been told to call back later — which led to the exchange he was charged with. And she argued the county worker has a protected privacy interest from such abusive language while in her office.
But justices quizzed prosecutors on the case, which involves telephone calls, emails or other communication technology. They pointed out that similar prosecutions around the country that have withstood constitutional scrutiny included repeated occasions of profanity over a long period of time — while Dugan used the sexual slur and then hung up.
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In a surprisingly even-handed AP report, the issues are fleshed out well enough that people on either side of this issue might make some reasonable conclusions. It's not often I commend the AP...
The issue presented is this: Does government have the authority to decide amongst various kinds of speech, based on obscenity, offensiveness, or even good manners? What does the First Amendment say? "Congress shall make no law... abridging the freedom of speech..." And the Montana Constitution? Article II, Section 7: "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."
But 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."
We must conclude that 45-8-213 violates the Montana Constitution! "No law shall be passed..." seems pretty clear. But beyond that, can you imagine that it is illegal in Montana to annoy or offend someone? I'm frankly surprised that the floodgates aren't already opened up with all sorts of lawsuits from "offended" people.
We must conclude that 45-8-213 violates the Montana Constitution! "No law shall be passed..." seems pretty clear. But beyond that, can you imagine that it is illegal in Montana to annoy or offend someone? I'm frankly surprised that the floodgates aren't already opened up with all sorts of lawsuits from "offended" people.
The quote from Justice Rice is worthy of note: “Are you saying the constitution no longer allows us to protect that public servant from being reamed out in a lewd way by someone who calls on the phone?” Well Justice Rice, what does the constitution say? And where do you think you get the authority to protect anyone from being reamed out? You are a judge, you interpret the law. You judge the matters brought before you and rule based on the laws that constrain you. You are not a police officer charged with protecting people. And what about the protection of the citizen who has free speech rights that are being evaluated by a government entity to determine if those words can be said?
Having said all that, I do believe that people have to be responsible for what they say. The best way, I think, is for the people to set their own standard of behavior and be free to enforce it. It wasn't too long ago that if a lady's honor was insulted, her husband or a brother would pay a visit to the offender and offer him some timely advice. Most sensible people would listen to such advice. No courts are required.
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