The American Civil Liberties Union of Montana and the Foundation for Individual Rights and Expression are asking the Montana Supreme Court to reconsider a 2003 decision as it relates to a current free speech case because they said it sets a dangerous precedent by placing addition hurdles for speech to get protection, contrary to the First Amendment rights found in both the state and federal constitutions.
The current case concerns Matthew Gordon Mayfield who allegedly told two police officers to “get f—ed” as he disputed the arrest of another man. Helena police officers arrested him, saying that he was interfering with the arrest. In the case, Lewis and Clark County District Court Judge relied on a 2003 case, State vs. Robinson, which led to Mayfield’s conviction. But Menahan’s reliance upon the case should be revisited, according to the two groups, because they warned that the Supreme Court got it wrong in 2003 and risked getting it wrong in 2026.
The 2003 case follows very similar contours in which a man was arrested by Helena Police for similar reasons, after calling an officer a profane name, seemingly for little reason.
The legal challenge says the Montana Supreme Court adopted a new way of looking at contested speech that unfairly limits the First Amendment. For more than a century, the United Supreme Court has said the First Amendment doesn’t protect “fighting words.” However, in the 2003 case, the Montana Supreme Court said that speech must also contribute “to our constitutionally protected social discourse” in order to be protected by the First Amendment as well.
It’s that additional phrase the state’s highest court adopted, saying speech must also contribute “social discourse” that the groups say is problematic.
Attorneys for the civil liberties group said the 2003 precedent must be struck down. Unless it’s reversed by the Montana Supreme Court, sets a dangerous precedent where courts must not only decide if speech provokes fight, but also if courts find the speech adds value to the public conversation, which they say should not be a consideration and not a part of case law at the federal level. Furthermore, they said the case — if it stands — could contradict a number of rulings by the United States Supreme Court, which is the highest arbiter of constitutionally protected freedoms.
Adopted more than a century ago, the United States Supreme Court created a legal test to determine whether certain speech deserved First Amendment protection. “The fighting words doctrine” says that speech that would immediately incite violence should not be protected; however, attorneys for the groups point out that even though the nation’s highest court laid out that principle, it’s not been one used routinely. One of the most popular iterations of the principle is a well-worn example of yelling out “fire” in a crowded theater.
The brief filed with the Montana Supreme Court says that the First Amendment is at its most critical when that speech is directed at criticism of the government, even if its profane or “vitriolic.” Moreover because law enforcement officers have so much power, criticism — even if sharp or profane — must be tolerated.
The court filings argue that when the Montana Supreme Court analyzed the “fighting words” doctrine in a 2003 case (State vs. Robinson) it added a new wrinkle by saying not only must the words be in the “fighting words” category, but the speech must “contribute to our constitutionally protected social discourse.”
The attorneys argue that it forces courts to judge the content of the offensive language, not only gauging whether the words would cause an immediate reaction — “fighting words” — but courts force them to consider if the words have value in a public conversation, something they say is inherently subjective and subject to abuse.
“The government would hold authority to regulate entire swaths of speech entitled to core First Amendment protection,” the civil liberties group argue. “That is not the law.”
The legal position of the groups acknowledges that there are limits to the First Amendment, including inciting violence, obscenity, defamation and child pornography.
Quoting famous First Amendment cases at the federal level, the brief points out that free speech is at its most important when it criticizes the government or those who hold power. That power also extends to language that is “vehement, caustic and sometimes unpleasantly sharp.”
“Free speech includes ‘the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation,” the court brief states, relying on a 1944 decision.
That some people choose to criticize police or other officials, even if it’s generally considered offensive or vulgar, doesn’t necessarily diminish the protection, the organizations argue.
“The mere fact that Robinson expressed his contempt for the police with expletives rather than erudite exposition does not diminish the constitutional protection to which his speech was entitled,’ the brief said. “When the First Amendment of course protects ‘the cognitive content of individual speech,’ it also protects its ‘emotive function’ which ‘may often be the more important element of the overall message sought to be communicated.’”
The court documents list cases and historical events that have went to the Supreme Court on protected speech issues, including the rally of Nazis marching in Skokie, Illinois, a town with both a sizable Jewish population and Holocaust survivors. Another case was the Westboro Baptist Church members’ right to picket outside a funeral of a soldier with the sign, “Thank God for Dead Soldiers.”
“The fear is not that the most crass and boorish of the population is free to spew invectives to arouse anger in others, but that the government will use the tenuous grasp of the ‘fighting words’ exception to punish the content of the speech against those with whom the government disagrees,” the documents said.
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