Slur over phone may be protected speech

Sexual slurs spoken over the phone are protected speech unless they are part of a threat or are intended to offend, the Montana Supreme Court ruled Feb. 19.

The ruling came in the case of a Belgrade man charged with violating Montana’s privacy in communications law during an October 2009 phone call with a Gallatin County Victim Assistance Program worker.

Randall Dugan was seeking help in filling out paperwork for an order of protection against the mother of his children, who was soon to be released from prison. Dugan had allegedly caused disturbances with Victim Assistance Program workers in the past.

Dugan was sentenced by Gallatin County Justice of the Peace Bryan Adams to 180 days in jail with all but five days suspended and ordered to pay $585 in fines and fees. He had pleaded no contest after unsuccessfully arguing that the slur was protected by his freedom of speech rights and that the privacy in communication law was overly broad.

Gallatin County District Court Judge John Brown also refused to dismiss the case, saying Dugan’s statements amounted to “fighting words” and were not protected speech.

The Montana Supreme Court overturned Brown’s ruling by noting that the expression “fighting words” has been narrowly defined in past cases to refer to face-to-face encounters that might lead to a physical confrontation.

The justices also noted that Dugan’s slur did not indicate a threat of violence, and while the slur was rude, the words were not obscene because they did not have an erotic context.

“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 justices wrote.

The justices agreed that Montana’s privacy in communication law is overly broad because it treats the simple use of an obscenity or profanity as a threat without any proof of intent to intimidate or offend.

With all that said, the justices noted that Dugan still may have violated the rest of the privacy in communications law. The case was sent back to district court where Dugan can withdraw his no-contest plea and proceed to trial. Justice Jim Rice issued a partially dissenting opinion in the case.