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 b----, would that violate the statue?" Morris asked. "How about a jerk? How do we develop this sliding scale of words that violate, and words that don't?"
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.
Morris asked if he could be prosecuted under the statute if a salesman called his home, prompting him to get angry and curse at the caller. Hinderman said he could be.
The Gallatin County Justice Court has been waiting to sentence the 51-year-old Dugan, of Belgrade, until after the appeal on the constitutionality of the statute is sorted out. Montana law says that violating the statue is punishable by up to six months in jail and a fine of up to $500 on the first offense.
Montana Department of Corrections records show Dugan is on parole for distribution of drugs. The Bozeman Chronicle reported that in 2011, Dugan fired a gun at his home, then went to a local hospital without the gun and threatened to shoot people from child protective services.