eCases

. Chaplinsky was a Jehovah’s Witness preacher who caused a disturbance
after distributing religious literature on public streets and denouncing all religion as a
“racket.” Chaplinsky,

315 U.S. at 569-70

62 S. Ct. at 768

. A police officer escorted
Chaplinsky to the police station, and Chaplinsky told the officer “[y]ou are a God
damned racketeer” and “a damned Fascist and the whole government of Rochester are
Fascists or agents of Fascists.”    Chaplinsky,

315 U.S. at 569

62 S. Ct. at 768

.
Chaplinsky was convicted of violating a New Hampshire statute that stated as follows:
No person shall address any offensive, derisive or annoying word to
any other person who is lawfully in any street or other public place, nor call
him by any offensive or derisive name, nor make any noise or exclamation
9
in his presence and hearing with intent to deride, offend or annoy him, or to
prevent him from pursuing his lawful business or occupation.
Chaplinsky,

315 U.S. at 569

62 S. Ct. at 768

. The United States Supreme Court upheld
Chaplinsky’s conviction, holding that his speech constituted “fighting words,” which can
be prevented and punished without raising any First Amendment problems. Chaplinsky,

315 U.S. at 571-72

.
¶20    The Court defined “fighting words” as “those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.” Chaplinsky,

. “The test is what men of common intelligence would understand would
be words likely to cause an average addressee to fight.” Chaplinsky,

. The Court noted that the purpose of the statute was to “preserve the public
peace,” and the statute “does no more than prohibit the face-to-face words plainly likely
to cause a breach of the peace by the addressee, words whose speaking constitutes a
breach of the peace by the speaker.” Chaplinsky,

.
¶21    Since the Chaplinsky decision in 1942, the United States Supreme Court has never
again upheld a conviction based on the “fighting words” categorical exception. The
Supreme Court has reversed the conviction each time it has reviewed a case involving
“fighting words,” but it has not overturned Chaplinsky. Therefore, “fighting words”
remain a narrow and limited category of speech unprotected by the First Amendment.
Erwin Chemerinsky, Constitutional Law: Principles and Policies 1002 (3d. ed., Aspen
Publishers 2006).
10
¶22    A review of post-Chaplinsky Supreme Court decisions reveals the limited scope of
the “fighting words” categorical exception. In Street v. New York,

394 U.S. 576

89 S. Ct. 1354

 (1969), the Court reversed the malicious mischief conviction of a man who
had burned a flag on a public street and declared “[w]e don’t need no damn flag” in
response to the assassination of a civil rights leader. The Court held that “[t]hough it is
conceivable that some listeners might have been moved to retaliate upon hearing
appellant’s disrespectful words, we cannot say that appellant’s remarks were so
inherently inflammatory as to come within that small class of ‘fighting words’ which are
‘likely to provoke the average person to retaliation, and thereby cause a breach of the
peace.’ ” Street,

394 U.S. at 592

89 S. Ct. at 1365

.
¶23    The Court clarified in Cohen v. California,

403 U.S. 15

91 S. Ct. 1780

 (1971),
that words must be directed to a specific person and likely to provoke a violent response
from the hearer to constitute unprotected “fighting words.”        In Cohen, a man was
convicted of disturbing the peace for wearing a jacket bearing the words “Fuck the Draft”
in the Los Angeles County Courthouse. Cohen,

403 U.S. at 16

91 S. Ct. at 1783-84

.
The Court reasoned that the words on the jacket were not “fighting words” because “[n]o
individual actually or likely to be present could reasonably have regarded the words on
appellant’s jacket as a direct personal insult.” Cohen,

403 U.S. at 20

91 S. Ct. at 1786

.
The words on the jacket were not “directed to the person of the hearer,” and therefore
were not “fighting words.” Cohen,

403 U.S. at 20

91 S. Ct. at 1785

. Applying this same
reasoning, the Court in Texas v. Johnson,

491 U.S. 397

, 409,

109 S. Ct. 2533

, 2542
(1989), reversed the conviction of a protester who burned a flag, holding that his conduct
11
did not fall within the small class of fighting words because “[n]o reasonable onlooker
would have regarded Johnson’s generalized expression of dissatisfaction with the policies
of the Federal Government as a direct personal insult or an invitation to exchange
fisticuffs.”
¶24    The Supreme Court has often invalidated statutes prohibiting “fighting words” as
unconstitutionally vague or overbroad. In Gooding v. Wilson,

405 U.S. 518

92 S. Ct. 1103

 (1972), a war protester stated the following to a police officer: “White son of a
bitch, I’ll kill you,” “I’ll choke you to death,” and “if you ever put your hands on me
again, I’ll cut you all to pieces.” Gooding,

405 U.S. at

520 n. 1,

92 S. Ct. at

1105 n. 1
(internal quotations marks omitted). The Court overturned the protester’s conviction for
violating a statute that prohibited the use of “opprobrious or abusive language, tending to
cause a breach of the peace,” holding that the language of the statute sweeps too broadly
and could be used to punish speech that does not constitute “fighting words.” Gooding,

405 U.S. at 527-28

92 S. Ct. at 1108-09

. Following its decision in Gooding, the Court
reversed the conviction of a man who used the words “mother fucker” at a school board
meeting to describe the teachers, the school board, the town, and the country. Rosenfeld
v. New Jersey,

408 U.S. 901

92 S. Ct. 2479

 (1972). As Gooding and Rosenfeld illustrate,
“fighting words” laws will only be upheld if they are narrowly tailored to apply to speech
which is not protected by the First Amendment. Chemerinsky, Constitutional Law:
Principles and Policies at 1004.
¶25    The Supreme Court’s more recent decisions discussing fighting words
demonstrate that even when narrowly drawn, “fighting words” statutes will not be upheld
12
unless they are content neutral. See R. A. V. v. City of St. Paul,

505 U.S. 377

112 S. Ct. 2538

 (1992). In R. A. V., a teenager who allegedly burned a cross in the yard of a black
family’s home was charged under a bias-motivated crime ordinance which prohibited
placing a symbol, such as a burning cross, on private property with knowledge that it
would arouse “anger, alarm or resentment in others on the basis of race, color, creed,
religion or gender.” R. A. V.,

505 U.S. at 379-80

112 S. Ct. at 2541

. Though the
Minnesota Supreme Court construed the statute in a way that would only reach “fighting
words,” the Court held that the statute was facially unconstitutional because it prohibited
otherwise permissive speech solely on the basis of the subjects the speech addresses.
R. A. V.,

505 U.S. at 381

112 S. Ct. at 2542

. In its discussion of “fighting words,” the
Court stated:
It is not true that “fighting words” have at most a “de minimis” expressive
content, or that their content is in all respects “worthless and undeserving
of constitutional protection;” sometimes they are quite expressive indeed.
We have not said that they constitute “no part of the expression of ideas,”
but only that they constitute “no essential part of any exposition of ideas.”
R. A. V.,

505 U.S. at 384-85

112 S. Ct. at 2543-44

 (internal quotations omitted)
(emphasis in original). The Court went on to explain that “the exclusion of ‘fighting
words’ from the scope of the First Amendment simply means that, for purposes of that
Amendment, the unprotected features of the words are, despite their verbal character,
essentially a ‘nonspeech’ element of communication,” and are therefore analogous to a
“noisy sound truck.” R. A. V.,

505 U.S. at 386

112 S. Ct. at 2545

.
¶26    Despite the narrowness of the categorical exception for “fighting words,” the
Supreme Court has made clear that First Amendment concerns do not prevent a state
13
from outlawing speech that constitutes a “true threat.” See Virginia v. Black,

538 U.S. 343

123 S. Ct. 1536

 (2003). The Court in Black reviewed whether a Virginia statute that
banned cross burning with “an intent to intimidate a person or group of persons” and
made any cross burning “prima facie evidence of an intent to intimidate a person or group
of persons” violated the First Amendment. Black,

538 U.S. at 347-48

123 S. Ct. at 1541-42

. The Court determined that cross burning performed with an intent to threaten
or intimidate is not protected by the First Amendment when it constitutes a “true threat.”
Black,

538 U.S. at 359-60

123 S. Ct. at 1547-48

. “ ‘True threats’ encompass those
statements where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of individuals.”
Black,

538 U.S. at 359

123 S. Ct. at 1548

. However, the Court invalidated the prima
facie provision as unconstitutionally overbroad and held that it created an unacceptable
risk of the suppression of ideas. Black,

538 U.S. at 364-65

. The
Court concluded that the prima facie evidence provision impermissibly allowed arrest,
prosecution, and conviction of a person based solely on the fact of cross burning itself,
which fails to distinguish between cross burning performed with an intent to threaten or
intimidate and cross burning performed for other possibly permissible reasons. Black,

538 U.S. at 365-66

.
¶27   When evaluating the scope of protection afforded to Dugan’s speech, we must
consider the First Amendment concerns in light of the Supreme Court’s historically
narrow application of the “fighting words” categorical exception.
B. The “Fighting Words” Doctrine in Montana
14
¶28   Montana has demonstrated a greater willingness to uphold convictions based on
“fighting words.” Montana cases discussing free speech rights and “fighting words” have
arisen out of charges for disturbing the peace, disorderly conduct, and intimidation.
These cases have often involved speech directed at police officers.
¶29   In City of Whitefish v. O’Shaughnessy,

216 Mont. 433

, 435-36,

704 P.2d 1021

,
1022-23 (1985), a police officer heard “loud hollering” at around 2:00 a.m. and went to
investigate. The officer approached O’Shaughnessy and his group of friends on a city
street and asked them to “hold it down.” O’Shaughnessy, 216 Mont. at 436,

. O’Shaughnessy told the officer that he could not “hold it down” because it was
such a “beautiful day.” O’Shaughnessy, 216 Mont. at 436,

. After
asking O’Shaughnessy to “keep it down” several more times and warning him of a
possible arrest, O’Shaughnessy entered the back of the patrol car and was asked to get
out. O’Shaughnessy, 216 Mont. at 436,

. O’Shaughnessy exited the
vehicle, then re-entered the car. O’Shaughnessy, 216 Mont. at 436,

.
When the officer refused to shake hands with O’Shaughnessy, O’Shaughnessy stated:
“Well, [m.f.], I will holler and yell when and wherever I want if I want to.”
O’Shaughnessy, 216 Mont. at 436,

. O’Shaughnessy was arrested and
charged with disturbing the peace under a Whitefish municipal ordinance, and was
convicted following a jury trial. O’Shaughnessy, 216 Mont. at 434,

704 P.2d at 1022

.
¶30   O’Shaughnessy challenged his conviction as a violation of his free speech rights,
and also argued that the ordinance was unconstitutionally vague and overbroad.
O’Shaughnessy, 216 Mont. at 439,

704 P.2d at 1025

.                This Court held that
15
O’Shaughnessy’s speech constituted unprotected “fighting words” pursuant to
Chaplinsky. O’Shaughnessy, 216 Mont. at 438-39,

704 P.2d at 1024

. We rejected the
vagueness and overbreadth challenges, concluding that the ordinance was narrowly
construed to only apply “to words that have a direct tendency to violence and which are
willfully and maliciously uttered.” O’Shaughnessy, 216 Mont. at 442-43,

704 P.2d at 1027

.
¶31     Later that same year, the Court decided another “fighting words” case, City of
Billings v. Batten,

218 Mont. 64

705 P.2d 1120

 (1985). In Batten, an argument broke
out between neighbors and Batten called his neighbor “a communist government worker,
no good son-of-a-bitch, chickenshit, and m---r” and stated: “Fight me. Hit me. You
have a golf club. Come on. I want to fight you.” Batten, 218 Mont. at 67,

705 P.2d at 1122

. While the face-to-face confrontation ensued, Batten yelled “come back and fight
you m---r.” Batten, 218 Mont. at 67-68,

705 P.2d at 1123

. Batten was found guilty of
disorderly conduct following a jury trial. Batten, 218 Mont. at 66,

705 P.2d at 1121

. On
appeal, this Court held that Batten’s speech constituted “fighting words” because he
directly challenged a person to and nearly provoked a fight, causing such concern that
one of the neighbors ran away from the confrontation. Batten, 218 Mont. at 69-70,

705 P.2d at 1124

. Next, we concluded that the disorderly conduct statute, § 45-8-101, MCA,
was not unconstitutionally vague or overbroad. Batten, 218 Mont. at 70,

705 P.2d at 1124-25

.    Relying on O’Shaughnessy, the Court reasoned that when the disorderly
conduct statute is construed to apply only to words uttered knowingly that have a direct
16
tendency to violence, the statute is constitutional. Batten, 218 Mont. at 70,

705 P.2d at 1125

.
¶32     In State v. Lance,

222 Mont. 92

721 P.2d 1258

 (1986), a defendant challenged his
conviction for intimidation under § 45-5-203(1)(b), MCA, on First Amendment grounds.
Lance was found guilty of intimidation for sending multiple letters in which he described
his plans to take hostages to gain media attention for what he perceived were wrongs
committed against him by judges and attorneys. Lance, 222 Mont. at 96-97,

721 P.2d at 1261-62

. First, this Court held that the statute was not facially overbroad because it only
prohibited speech in the form of threats to subject any person to physical confinement or
restraint, without lawful authority, with the purpose of causing another to perform or omit
the performance of any act. Lance, 222 Mont. at 101,

721 P.2d at 1264

. The Court
determined that the State had a legitimate and considerable interest in preventing persons
from threatening to take hostages for the purpose of attaining some end, and Lance failed
to identify any substantial application of the statute to constitutionally protected speech.
Lance, 222 Mont. at 101,

721 P.2d at 1264-65

. Next, we held that the type of “true
threat” prohibited by the statute was not speech protected by the First Amendment.
Lance, 222 Mont. at 104,

721 P.2d at 1267

.
¶33     This Court’s most recent “fighting words” case involved a disturbing the peace
charge arising from a confrontation with a police officer. State v. Robinson,

2003 MT 364

319 Mont. 82

82 P.3d 27

. Robinson was crossing an intersection in front of a police
car when he glared at the waiting police officer and called him a “fucking pig.”
Robinson, ¶ 3. The officer parked his car and approached Robinson. Robinson, ¶ 4. The
17
officer asked Robinson if there was anything he wanted to talk about, to which Robinson
replied “[f]uck off, asshole.” Robinson, ¶ 4. The officer arrested Robinson for disorderly
conduct, in violation of § 45-8-101, MCA. Robinson, ¶ 4. Robinson filed a motion to
dismiss that the district court denied, then pled nolo contendere to reserve his right to
appeal. Robinson, ¶¶ 5-6. On appeal, Robinson argued that the district court erred in
denying his motion to dismiss and concluding that his statements to the police officer
were “fighting words.” Robinson, ¶ 8. We affirmed the district court’s determination
that his speech constituted “fighting words” because it was “sufficiently and inherently
inflammatory.” Robinson, ¶ 24. The Court explained:
If the statements in question had been uttered in the context of a
political rally or protest, free speech concerns might well prevail.
However, we fail to see how randomly goading a police officer by calling
him a “f****** pig” adds to our constitutionally-protected social discourse.
Robinson, ¶ 22.1
¶34 Though this Court has addressed “fighting words” in other contexts, it has never
discussed this categorical exception in connection with Montana’s Privacy in
Communications statute, § 45-8-213, MCA.
C. The District Court Erred in Deeming Dugan’s Speech “Fighting Words”
¶35 The District Court relied on Chaplinsky, Robinson, and O’Shaughnessy in
determining that Dugan’s statement to Redmond-Sherrill constituted “fighting words.”
The District Court reasoned that Dugan’s speech was “inherently inflammatory,” was not
1
The author of this Opinion dissented in Robinson, disagreeing with the majority on the
basis that “a trained officer should be expected to exercise a higher degree of restraint
than the average citizen.” Robinson, ¶ 31 (Cotter, J., dissenting).
18
an essential part of any exposition of ideas, and of “such slight social value” that any
benefit was “clearly outweighed by the social interest in order and morality.”
¶36 Dugan argues that his words were not “fighting words” because they were not
uttered in a public place or in a face-to-face setting. Furthermore, Dugan contends that
his speech created no danger of an imminent breach of the peace. The State counters that
Dugan’s statement inflicted injury by its very utterance as “the equivalent of a verbal
sucker punch in the face.” The State asserts that Dugan’s words were inherently likely to
evoke a violent reaction, and the fact that the speech occurred during a telephone call
does not limit its qualification as “fighting words.”
¶37 All of the “fighting words” cases relied upon by the District Court involved
face-to-face communications. The seminal “fighting words” case, Chaplinsky, clearly
contemplated some level of physical proximity between the speaker and his audience. In
upholding the “fighting words” conviction, the Supreme Court in Chaplinsky stated that:
“The statute, as construed, does no more than prohibit the face-to-face words plainly
likely to cause a breach of the peace by the addressee.” Chaplinsky,

 (emphasis added). Furthermore, limiting the “fighting words” categorical
exception to face-to-face communications is consistent with the underlying purpose of
the doctrine, which is “to preserve the public peace” by forbidding only those words that
have a “direct tendency to cause acts of violence.” Chaplinsky,

.   The Montana “fighting words” cases, O’Shaughnessy, Batten, Lance, and
Robinson, likewise all involved face-to-face communications. In fact, the State was
unable to point to a single “fighting words” case in which a conviction passed
19
constitutional muster when the subject communication did not occur in the physical
presence of the listener.
¶38    Other courts have recognized the proximal limitations of the “fighting words”
doctrine and have refused to extend it beyond face-to-face communication. In Anniskette
v. State,

489 P.2d 1012

, 1013 (Alaska 1971), a man was charged with disorderly conduct
for calling an Alaska State Trooper on his home telephone and complaining at length
about the trooper’s ineffectiveness and lack of qualifications. The caller referred to the
trooper as a “no good God-damn cop.” Anniskette, 489 P.2d at 1013 n. 1. The Alaska
Supreme Court determined that the caller’s telephonic communication did not fall within
the category of “fighting words” because the “time necessary for the officer to travel
from his residence to that of the defendant should have allowed enough cooling off so
that any desire on the part of the officer to inflict violence on the defendant should have
been dissipated.” Anniskette, 489 P.2d at 1014-15. The Court dismissed the charges
against the caller after holding that the caller’s speech was entitled to First Amendment
protection. Anniskette, 489 P.2d at 1015-16.
¶39    Courts have even refused to classify speech as “fighting words” when the
communication occurs in person but the speaker and the addressee are not in close
physical proximity. In Hershfield v. Commonwealth,

417 S.E.2d 876

 (Va. App. 1992), a
man was convicted of violating a Virginia statute that prohibits abusive language after he
told his neighbor to “go f___ yourself.” The speaker was standing in his yard two houses
down the street from the addressee when he uttered the statement. Hershfield,

417 S.E.2d at 876

. The court overturned his conviction, holding that the statute must only apply to
20
“fighting words” to comply with constitutional concerns. Hershfield,

417 S.E.2d at 877

.
The court determined that his speech did not constitute “fighting words” because it did
not occur face-to-face. Hershfield,

417 S.E.2d at 878

. Even though the abusive language
was uttered in the presence of another in the literal sense that the listener could see and
hear the speaker, the encounter was not face-to-face because the parties were separated
by a distance of 55 to 60 feet and by a fence. Hershfield,

417 S.E.2d at 877-78

. Under
these circumstances, the distance and barriers between the parties precluded an
immediate, violent reaction. Hershfield,

417 S.E.2d at 877-78

.
¶40    The Minnesota Supreme Court suggested an even narrower application of the
face-to-face requirement in In re Welfare of S.L.J.,

263 N.W.2d 412

(Minn. 1978). In
S.L.J., a 14-year-old girl was questioned by two police officers who had just apprehended
some teenage boys in the area. S.L.J., 263 N.W.2d at 415. After asking her some
questions, the officers urged her to hurry home because it was past her curfew. S.L.J.,
263 N.W.2d at 415. The girl headed down an alley and walked until she was somewhere
between 15 and 30 feet away from the squad car, at which point she turned around and
said “fuck you pigs.” S.L.J., 263 N.W.2d at 415. The officers exited their vehicle and
arrested the girl for disorderly conduct. S.L.J., 263 N.W.2d at 415. The Minnesota
Supreme Court reversed the girl’s disorderly conduct conviction, holding that her words
were not “fighting words” because they were “spoken in retreat from more than 15 feet
away rather than eye-to-eye, [and] there was no reasonable likelihood that they would
tend to incite an immediate breach of the peace or to provoke violent reaction by an
ordinary, reasonable person.” S.L.J., 263 N.W.2d at 420.
21
¶41 In light of these cases, and the principles underlying the “fighting words” doctrine
and its intersection with free speech rights, many authorities on the subject have
concluded that:
Insulting language must be spoken in close physical proximity to the
addressee to be considered fighting words. Otherwise, the burden is on the
addressee to “cool off.” Thus, insults over the telephone may never
constitute fighting words because the time necessary to initiate violence
with the caller should be enough to cool the temper of the average person.
Michael J. Mannheimer, The Fighting Words Doctrine,

93 Colum. L. Rev. 1527

, 1554
(1993); see also Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v. New
Hampshire is a Threat to First Amendment Values and Should be Overturned,

88 Marq. L. Rev. 441

, 450-51 (2004) (listing the possibilities suggested in Chaplinsky for defining
“fighting words” and concluding that communication by telephone is not a permissible
application of the doctrine); Thomas W. Korver, Student Author, State v. Robinson: Free
Speech or Itchin’ for a Fight,

65 Mont. L. Rev. 385

, 393 (2004) (the words must be
addressed to the person face-to-face); Jennifer Elrod, Expressive Activity, True Threats,
and the First Amendment,

36 Conn. L. Rev. 541

, 576 (2004) (The “fighting words”
doctrine assumes close physical proximity, face-to-face confrontations, and imminent or
immediate physical responses or reactions to the speaker’s statements).
¶42   We agree with the proposition that “there is little likelihood of an immediate
breach of the peace when one can abruptly hang up the receiver.” Walker v. Dillard,

523 F.2d 3

, 5 n. 7 (4th Cir. 1975). Here, Dugan said the words “fucking cunt” over the
telephone to Redmond-Sherrill.      Dugan’s speech did not occur face-to-face with
Redmond-Sherrill, as is required for speech to constitute “fighting words” pursuant to
22
Chaplinsky and its progeny. As discussed in Anniskette, Hershfield, and S.L.J., the
face-to-face requirement supports the underlying purpose of the “fighting words”
doctrine, which is to preserve the public peace and prevent immediate incitement of
violence.
¶43    Words spoken over the telephone are not proscribable under the “fighting words”
doctrine because the person listening on the other end of the line is unable to react with
imminent violence against the caller. Redmond-Sherrill was in her office at the time of
the phone call.      Her office is located behind locked doors controlled by a
video-monitored entry system. Nothing in the record suggests that she knew Dugan’s
location when he called her, and no facts indicate that Dugan was located near the Law
and Justice Center when he placed the phone call.          Under these circumstances, the
face-to-face requirement of the “fighting words” doctrine cannot be satisfied.
¶44    The District Court focused on the “slight social value” of Dugan’s speech and the
fact that his words constituted “no essential part of any exposition of ideas” in concluding
that his words were punishable without offending free speech rights. The Supreme Court
has clarified the language in Chaplinsky that described unprotected categories of speech
as being “of such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality.” See U.S. v.
Stevens, ___ U.S. ___, ___,

130 S. Ct. 1577

, 1585 (2010). The Supreme Court noted that
such descriptions of unprotected categories of speech are just that—descriptive. Stevens,
___ U.S. at ___,

. “They do not set forth a test that may be applied as a
general matter to permit the Government to imprison any speaker so long as his speech is
23
deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits
tilts in a statute’s favor.” Stevens, ___ U.S. at ___,

. While Dugan’s
utterance was certainly not of high social value, essential in any sense, or beneficial to the
pursuit of truth, it is not automatically rendered proscribable on the basis of these
shortcomings.
¶45    A review of “fighting words” cases makes clear that the “mere fact that expressive
activity causes hurt feelings, offense, or resentment does not render the expression
unprotected.” R. A. V.,

505 U.S. at 414

112 S. Ct. at 2559

 (White, Blackmun, O’Connor
& Stevens, JJ., concurring). Though Dugan’s choice of words was among the most
distasteful in our vocabulary, if we are to preserve the free speech rights enshrined in the
Montana and United States Consitutions, we must recognize that “the State has no right
to cleanse public debate to the point where it is grammatically palatable to the most
squeamish among us.” Cohen,

403 U.S. at 25

91 S. Ct. at 1788

. The context suggests
that Dugan’s speech was uttered in exasperation and frustration.
[C]urses, oaths, expletives, execrations, imprecations, maledictions, and the
whole vocabulary of insults are not intended or susceptible of literal
interpretation. They are expressions of annoyance and hostility—nothing
more. . . . Their significance is emotional, and it is not merely
immensurable but also variable. The emotional quality of exclamations
varies from time to time, from region to region, and as between social,
cultural, and ethnic groups.
St. Paul v. Morris,

104 N.W.2d 902

, 910 (Minn. 1960) (Loevinger, J., dissenting).
Expletives and insults, no matter how distasteful, can be constitutionally proscribed only
if they fall within one of the narrow and limited categories of unprotected speech.
24
¶46    We are likewise not persuaded by the State’s argument that Dugan’s speech was
punishable under the captive audience doctrine. The Supreme Court has applied the
captive audience doctrine “sparingly to protect unwilling listeners from protected
speech.” Snyder v. Phelps, ___ U.S. ___, ___,

131 S. Ct. 1207

, 1220 (2011). The ability
of the government to constitutionally shut off discourse solely to protect others from
hearing it depends on “a showing that substantial privacy interests are being invaded in
an essentially intolerable manner.” Cohen,

403 U.S. at 21

91 S. Ct. at 1786

. “Outside
the home, the balance between the offensive speaker and the unwilling audience may
sometimes tip in favor of the speaker, requiring the offended listener to turn away.”
F.C.C. v. Pacifica Found.,

438 U.S. 726

, 749 n. 27,

98 S. Ct. 3026

, 3040 n. 27 (1978).
While the government may act in limited situations to prohibit intrusion into the privacy
of the home, the Supreme Court has “consistently stressed that we are often captives
outside the sanctuary of the home and subject to objectionable speech.” Cohen,

403 U.S. at 21

91 S. Ct. at 1786

 (internal quotations omitted).
¶47    Given the Supreme Court’s sparing application of the captive audience doctrine,
we conclude that it does not apply under these circumstances. Redmond-Sherrill was not
in her home when she received the telephone call from Dugan. Redmond-Sherrill was
using a business phone at Victim Services, an entity that holds itself out to the public to
provide assistance. Dugan’s phone call was made to elicit those services. The charges
against Dugan stem from a single phone call. Dugan immediately hung up the phone
after making his objectionable utterance, but even if he had not done so,
Redmond-Sherrill had the power at any moment to end the communication by simply
25
hanging up the phone. The privacy interests of a public employee at Victim Services are
certainly less substantial than the privacy interests that a private citizen enjoys while in
her residence. Under these facts, the State has failed to show that Redmond-Sherrill’s
substantial privacy interests were invaded in an essentially intolerable manner.
¶48    Dugan’s speech did not constitute an unprotected “true threat.”              Calling
Redmond-Sherrill a “fucking cunt” is not a statement meant to communicate an intent to
commit an act of unlawful violence against her. See Black,

538 U.S. at 359

123 S. Ct. at 1548

. Redmond-Sherrill admitted that Dugan did not threaten her or anyone else at
Victim Services during the phone call.             Furthermore, Dugan’s words were not
unprotected obscenity. Obscene material must be erotic in some significant way and
appeal to the prurient interest in sex. See Cohen,

403 U.S. at 20

91 S. Ct. at 1785

;
§ 45-8-201(2), MCA.        The words used by Dugan could constitute obscenity under
different circumstances, but the context suggests that he uttered the words in frustration
and his use is not subject to a literal interpretation.
¶49    We hold that the District Court erred in deeming Dugan’s speech unprotected
“fighting words.” This Court and the United States Supreme Court have applied the
“fighting words” doctrine only to face-to-face interactions and in circumstances likely to
cause an immediate breach of the peace. We see no reason to extend the doctrine beyond
its historically narrow and limited reach. Thus, Dugan’s words do not fall under one of
the categorical exceptions to free speech protections guaranteed by the Montana and
United States Constitutions.
26
¶50    It is important to note that in reaching the foregoing conclusion, we do not
foreclose Dugan’s prosecution under the statute. Prosecution for his actions in this case
does not violate Dugan’s free speech rights because the statute only proscribes
communication made “with the purpose to terrify, intimidate, threaten, harass, annoy or
offend.” Section 45-8-213(1)(a), MCA. As further explained below, the requirement that
the State prove Dugan’s statement was made with a specific intent removes the danger of
criminalizing protected speech.
¶51     Is the Privacy in Communications statute, § 45-8-213, MCA, facially overbroad
in violation of the First Amendment to the United States Constitution and Article
II, Section 7 of the Montana Constitution?
¶52    “An over-broad statute is one that is designed to burden or punish activities which
are not constitutionally protected, but the statute includes within its scope activities which
are protected by the First Amendment.” State v. Nye,

283 Mont. 505

, 515,

943 P.2d 96

,
102 (1997). The crucial question in addressing an overbreadth challenge is whether the
statute sweeps within its prohibitions what may not be punished constitutionally.
O’Shaughnessy, 216 Mont. at 440,

704 P.2d at 1026

; Grayned v. City of Rockford,

408 U.S. 104

, 114-15,

92 S. Ct. 2294

, 2302 (1972). Even if an enactment is clear and precise,
it may nevertheless be deemed overbroad if it reaches constitutionally protected conduct.
O’Shaughnessy, 216 Mont. at 440,

704 P.2d at 1026

.
¶53    Dugan asserts that the statute is facially overbroad. “[A]n individual whose own
speech or expressive conduct may validly be prohibited or sanctioned is permitted to
challenge a statute on its face because it also threatens others not before the court—those
who desire to engage in legally protected expression but who may refrain from doing so
27
rather than risk prosecution or undertake to have the law declared partially invalid.”
Lance, 222 Mont. at 99,

721 P.2d at 1263

 (quoting Brockett v. Spokane Arcades, Inc.,

472 U.S. 491

, 503,

105 S. Ct. 2794

, 2801-02 (1985)).
¶54 We restate the pertinent provisions of Montana’s Privacy in Communications
statute, § 45-8-213, MCA, as follows:
45-8-213. Privacy in communications. (1) Except as provided in
69-6-104, a person commits the offense of violating privacy in
communications if the person knowingly or purposely:
(a) 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.
. . .
(4) “Electronic communication” means any transfer between persons
of signs, signals, writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic,
photoelectronic, or photo-optical system.
Dugan’s citation stated that he “called victim on telephone and used obscene, lewd and
profane language, offending the victim” in violation of § 45-8-213(1)(a), MCA.
¶55 The District Court determined that Dugan’s overbreadth challenge must fail
because it was “based purely on speculation and is not real and substantial.” Dugan
argues that the Privacy in Communications statute is overbroad because it makes the “use
of obscene, lewd, or profane language . . . prima facie evidence of an intent to terrify,
intimidate, threaten, harass, annoy, or offend.” Dugan contends that the statutory
presumption of intent to offend impermissibly allows the State to punish more speech
28
than is constitutionally proscribable under the First Amendment. The State asserts that
because Dugan pled guilty to the charge, there is no evidence that Montana courts have
applied the presumption of intent in ways that violate free speech rights. The State
argues that Dugan has failed to demonstrate how the statute might infringe on the
freedom of speech of others in a real and substantial way in comparison to the statute’s
wide variety of constitutional applications. The State also points to decisions from other
jurisdictions that have rejected overbreadth challenges to similar telephone harassment
statutes.
¶56 This Court determined that the disturbing the peace ordinance in O’Shaughnessy
was not overbroad after finding that the ordinance had been constitutionally construed:
We affirm the narrow construction on the part of the District Court
in construing the Whitefish Ordinance through its instructions, which
required that not only must the defendant have willfully and maliciously
disturbed the peace by uttering the language in question, but that the words
and language of the defendant must have been of such a nature that men of
common intelligence would understand that the words were likely to cause
an average person to fight and with the further instruction that threatening,
profane and obscene words, said without a disarming smile, are generally
considered to be “fighting words.” Because we construe the Whitefish
Ordinance narrowly as only applying to words that have a direct tendency
to violence and which are willfully and maliciously uttered, we conclude
that the Ordinance is not unconstitutional for vagueness and overbreadth.
O’Shaughnessy, 216 Mont. at 442-43,

704 P.2d at 1027

. The statute was not overbroad
because it was effectively construed to only punish “fighting words,” which can be
proscribed without offending the First Amendment.
¶57    This Court similarly concluded in Lance that the intimidation statute was not
unconstitutionally overbroad. We determined that the statute was narrowly construed to
29
prohibit only “true threats,” which are constitutionally unprotected much like “fighting
words.” Lance, 222 Mont. at 103-04,

721 P.2d at 1266

. Lance was unable to identify
and the Court was unable to find any situations where a person would be constitutionally
permitted to make such a threat. Lance, 222 Mont. at 101,

721 P.2d at 1264-65

. Citing
the rule that “the overbreadth of a statute must not only be real, but substantial as well,”
the Court refused to facially invalidate the statute on overbreadth grounds. Lance, 222
Mont. at 100-01,

721 P.2d at 1264-65

.
¶58    The statutes at issue in O’Shaughnessy and Lance did not contain a prima facie
evidence provision. For guidance on interpreting this provision, we turn back to the
United States Supreme Court’s decision in Virginia v. Black. The Virginia statute in
question in Black banned cross burning with “an intent to intimidate a person or group of
persons” and made any cross burning “prima facie evidence of an intent to intimidate a
person or group of persons.” Black,

538 U.S. at 347-48

123 S. Ct. at 1541-42

. While the
Court recognized that cross burning performed with an intent to threaten or intimidate is a
“true threat” not protected by the First Amendment, the Court invalidated the prima facie
provision as unconstitutionally overbroad. Black,

538 U.S. at 364-65

. The Court explained as follows:
[T]he prima facie provision strips away the very reason why a State may
ban cross burning with the intent to intimidate. The prima facie evidence
provision permits a jury to convict in every cross-burning case in which
defendants exercise their constitutional right not to put on a defense. And
even where a defendant like Black presents a defense, the prima facie
evidence provision makes it more likely that the jury will find an intent to
intimidate regardless of the particular facts of the case. The provision
permits the Commonwealth to arrest, prosecute, and convict a person based
solely on the fact of cross burning itself.

30 Black, 538

 U.S. at 365,

. The prima facie provision was struck
down as unconstitutionally overbroad because the First Amendment does not permit the
fact-finder to ignore all of the contextual factors in determining whether a particular cross
burning was committed with an intent to intimidate. Black,

538 U.S. at 367

123 S. Ct. at 1551

.
¶59     The Nebraska Supreme Court invalidated a nearly identical prima facie provision
in State v. Kipf,

450 N.W.2d 397

 (Neb. 1990). Kipf was charged with intimidation by
telephone under a statute with a provision that stated: “The use of indecent, lewd, or
obscene language or the making of a threat or lewd suggestion shall be prima facie
evidence of intent to terrify, intimidate, threaten, harass, annoy, or offend.” Kipf, 450
N.W.2d at 402. The Court invalidated the prima facie language and concluded that a jury
instruction based on the statute was unconstitutional because it deprived defendants of the
due process right to have the State prove beyond a reasonable doubt each element of the
crime charged, and impermissibly shifted the burden to the defendant to disprove the
element of intent in the offense charged.        Kipf, 450 N.W.2d at 413.        The Court
determined that a jury instruction applying the prima facie language would, in the
absence of a defendant’s presentation of evidence negating the intent established by the
prima facie provision, have the legal effect of a directed verdict on the issue of criminal
intent as an element of the offense. Kipf, 450 N.W.2d at 413.
¶60     Further support for invalidating similar prima facie language is found in Baker v.
State,

494 P.2d 68

 (Ariz. App. 1972). The prima facie provision in Baker stated that:
31
“The use of obscene, lewd or profane language or the making of a threat or statement as
set forth in this section shall be prima facie evidence of intent to terrify, intimidate,
threaten, harass, annoy or offend.” Baker,

494 P.2d at 70

. The court invalidated the
prima facie language for failing to make a rational connection between the proven fact
and the presumed fact:
The test is whether the inference upon which the presumption is based can
be sustained by common experience and the circumstances of life. It is our
observation that nowadays, obscene, lewd or profane language is not
uncommonly used between individuals without any intent to terrify,
intimidate, threaten, harass, annoy or offend. We accordingly do not
believe that it is rational to assume that merely because a person uses
obscene, lewd or profane language over the telephone one can conclude the
person is doing so with the intent proscribed by the statute.
Baker,

494 P.2d at 71-72

(citations omitted).
¶61 Just as free speech concerns did not permit the shortcut offered by the prima facie
evidence provision in Black, Kipf, and Baker, we find that the same holds true here.
Montana’s Privacy in Communications statute, § 45-8-213, MCA, makes the “use of
obscene, lewd, or profane language . . . prima facie evidence of an intent to terrify,
intimidate, threaten, harass, annoy, or offend” with no regard to the circumstances and
facts of the particular case. As such, it presents a substantial and real danger of infringing
on the free speech rights of others. For example, a person who was talking on the phone
and accidentally stubbed his toe might inadvertently say a profane word. The prima facie
provision would ignore the facts of the case and automatically presume that he uttered the
profane word with “an intent to terrify, intimidate, threaten, harass, annoy, or offend.”
As discussed in Baker, it is not rational to assume based on mere use of certain types of
32
language over the telephone that the person is doing so with the intent proscribed by the
statute.
¶62 Though Dugan is not asserting an as-applied overbreadth challenge, the alleged
facts of his case are illustrative. Dugan called Redmond-Sherrill to request assistance in
filing an order of protection. He placed the call for a legitimate reason. However,
because he became incredibly frustrated when Redmond-Sherrill refused to help him and
he went on to say the words “fucking cunt” in exasperation, the prima facie provision
creates the presumption that the purpose of his call was to “terrify, intimidate, threaten,
harass, annoy, or offend” Redmond-Sherrill. Such a conclusion is unwarranted under the
circumstances. We recognize that “a statute cannot be challenged just because it might
result in an unconstitutional abridgment of speech in a hypothetical case.” State v. Allum,

2005 MT 150

, ¶ 29,

327 Mont. 363

114 P.3d 233

. However, when judged in relation to
the statute’s plainly legitimate sweep, the unconstitutional overbreadth is both “real” and
“substantial.”   Allum, ¶ 29.   There is a realistic danger that the statute itself will
significantly compromise recognized free speech rights of parties not before the Court,
especially considering the volume and variety of electronic communication that takes
place in today’s world.
¶63    We hold that the prima facie provision of the Privacy in Communications statute,
§ 45-8-213, MCA, is facially overbroad. It is well-established that “the same statute may
be in part constitutional and in part unconstitutional, and that if the parts are wholly
independent of each other, that which is constitutional may stand while that which is
unconstitutional will be rejected.” Lance, 222 Mont. at 99,

721 P.2d at 1264

; Brockett,
33

472 U.S. at 502

105 S. Ct. at 2801

. We strike the following language from § 45-8-213,
MCA, as unconstitutionally overbroad: “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.”
¶64    Though the statute was only designed to burden or punish activities which are not
constitutionally protected, the statute includes within its scope activities which are
protected by the First Amendment. Therefore, the statute sweeps within its prohibitions
speech which may not be punished constitutionally. With the prima facie provision
invalidated, Montana’s Privacy in Communications statute legitimately encompasses
only those electronic communications made with the purpose to terrify, intimidate,
threaten, harass, annoy, or offend. Such communications can be proscribed without
violating the Montana and United States Constitutions.
¶65    Is the Privacy in Communications statute, § 45-8-213, MCA, vague on its face, or
as applied to Dugan, so as to violate the Due Process Clause of the United States
Constitution and Article II, Section 17 of the Montana Constitution?
¶66    A vagueness challenge to a statute may be maintained under two different
theories: (1) because the statute is so vague that it is rendered void on its face; or (2)
because it is vague as applied in a particular situation. State v. Watters,

2009 MT 163

,
¶ 24,

350 Mont. 465

208 P.3d 408

; Nye, 283 Mont. at 513,

. “It is a basic
principle of due process that an enactment is void for vagueness if its prohibitions are not
clearly defined.” O’Shaughnessy, 216 Mont. at 440,

704 P.2d at 1025

; Grayned,

408 U.S. at 108

, 92 S. Ct. at 2298. Vague laws offend the following important values:
34
First, we assume that man is free to steer between lawful and unlawful
conduct, we insist that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application. Third, but
related, where a vague statute abuts upon sensitive areas of basic First
Amendment freedoms, it operates to inhibit the exercise of those freedoms.
Uncertain meanings inevitably lead citizens to steer far wider of the
unlawful zone than if the boundaries of the forbidden areas were clearly
marked.
O’Shaughnessy, 216 Mont. at 440,

704 P.2d at 1025-26

; Grayned,

408 U.S. at 108-09

, 92
S. Ct. at 2298-99 (internal quotations omitted) (citations omitted). We review Dugan’s
as-applied and facial vagueness challenges with these considerations in mind.
¶67   A statute is void on its face “if it fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden.” Nye, 283 Mont. at 513,

. For vague-as-applied challenges, a court must determine whether the statute in
question provides a person with “actual notice” and whether it provides “minimal
guidelines” to law enforcement. Watters, ¶ 32. To determine whether the challenged
statute provides “actual notice,” courts examine the statute in light of the defendant’s
conduct to determine if the defendant reasonably could have understood that the statute
prohibited such conduct. Watters, ¶ 32.
¶68   The District Court determined that the Privacy in Communications statute,
§ 45-8-213, MCA, was neither facially vague nor vague as applied. Dugan contends that
the statute is void for vagueness on its face because it incorporates but does not further
35
define what it means to “offend” in the course of using “obscene, lewd, or profane
language.” Dugan argues that the statute fails to sufficiently explain what words, said
under what circumstances, would constitute a violation of the statute. As such, Dugan
asserts that he could not have understood what words he was allowed to say and what
words would subject him to prosecution.
¶69    The failure to include exhaustive definitions of every term employed in a statute
will not automatically render a statute overly vague, so long as the meaning of the statute
is clear and provides a defendant sufficient notice of what conduct is proscribed. Nye,
283 Mont. at 513,

943 P.2d at 101-02

. In Nye, a defendant challenged the statute setting
forth the crime of malicious intimidation or harassment, § 45-5-221, MCA, as
unconstitutionally vague. Nye, 283 Mont. at 514,

. The statute made it
unlawful to “purposely or knowingly, with the intent to terrify, intimidate, threaten,
harass, annoy, or offend” damage, destroy, or deface property because of another
person’s “race, creed, religion, color, national origin, or involvement in civil rights or
human rights activities.” Section 45-5-221, MCA. In upholding the statute, this Court
explained that the terms “annoy” and “offend” have commonly understood meanings:
“[a]nnoy means to bother, irritate or harass, particularly by repeated acts,” and “[o]ffend
means to create or excite anger, resentment or annoyance or to cause displeasure.” Nye,
283 Mont. at 513-14,

. We determined that these terms were of common
usage and were readily understandable, so a reasonable person of average intelligence
could comprehend their meaning. Nye, 283 Mont. at 514,

; see also State
36
v. Martel,

273 Mont. 143

902 P.2d 14

 (1995) (holding that Montana’s anti-stalking
statute was not unconstitutionally vague).
¶70    The requirement of a mental state to do a prohibited act can render an otherwise
vague or indefinite statute constitutional. Nye, 283 Mont. at 514,

;
Martel, 273 Mont. at 152,

902 P.2d at 19-20

; Screws v. U.S.,

325 U.S. 91

, 101,

65 S. Ct. 1031

, 1035 (1945). As we have previously noted, “if the challenged statute is reasonably
clear in its application to the conduct of the person bringing the challenge, it cannot be
stricken on its face for vagueness.” Nye, 283 Mont. at 514,

; State v.
Lilburn,

265 Mont. 258

, 270,

875 P.2d 1036

, 1044 (1994); Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc.,

455 U.S. 489

, 497,

102 S. Ct. 1186

, 1193 (1982). In
Lilburn, we held that a hunter could not challenge a hunter harassment statute for facial
vagueness when his conduct of standing between a hunter and a bison to prevent the
animal from being shot was unquestionably proscribed by the statute he was challenging.
Lilburn, 265 Mont. at 270-71,

875 P.2d at 1044

.
¶71    Other jurisdictions have concluded that statutes similar to Montana’s Privacy in
Communications statute are not impermissibly vague. The Idaho Court of Appeals held
in State v. Richards,

896 P.2d 357

 (Idaho App. 1995), that a statute prohibiting a person
from telephoning another and using “obscene, lewd or profane language” with “the intent
to annoy, terrify, threaten, intimidate, harass or offend” was not unconstitutionally vague.
The court determined that the words used in the statute required the caller to harbor a
specific intent to cause emotional harm to the listener, and were sufficiently narrow and
specific to inform persons of reasonable intelligence of the type of language prohibited.
37
Richards,

896 P.2d at 364

; see also Kipf, 450 N.W.2d at 405-06; Baker,

494 P.2d at 70-71

; State v. Crelly,

313 N.W.2d 455

 (S.D. 1981); State v. Gattis,

730 P.2d 497

, 502-03
(N.M. App. 1986); State v. Jaeger,

249 N.W.2d 688

, 691-92 (Iowa 1977).
¶72   Montana’s Privacy in Communications statute, § 45-8-213, MCA, contains a
nearly identical mental state as the one at issue in Nye. The State must prove that a
defendant acted “with the purpose to terrify, intimidate, threaten, harass, annoy or
offend.” Section 45-8-213(1)(a), MCA. Furthermore, the terms “obscene, lewd, or
profane” are of common usage and readily understandable by a reasonable person of
average intelligence. The fact that these terms are not defined in the statute does not
render it void for vagueness. The subject statute clearly provides law enforcement with
the requisite minimal guidelines for its enforcement. Dugan’s use of the words “fucking
cunt” is unquestionably proscribed under any reasonable definition of these terms. As the
State points out, “cunt” is one of the most vulgar and offensive words in the English
language. When combined with “fucking,” another patently offensive term, Dugan’s
communication may qualify as “obscene, lewd, or profane.” Following our decisions in
Nye and Lilburn, Dugan’s facial challenge to § 45-8-213, MCA, must fail because “the
challenged statute is reasonably clear in its application to the conduct of the person
bringing the challenge.”    Nye, 283 Mont. at 514,

. We hold that
Montana’s Privacy in Communications statute, § 45-8-213, MCA, is not
unconstitutionally vague.
CONCLUSION
38
¶73 For the foregoing reasons, we reverse the District Court’s conclusion that Dugan’s
speech constituted “fighting words.” Next, we strike the prima facie provision of
Montana’s Privacy in Communications statute, § 45-8-213, MCA, as unconstitutionally
overbroad. Lastly, we remand to the District Court to allow Dugan to withdraw his nolo
contendere plea pursuant to § 46-12-204(3), MCA, and proceed to trial. At trial, the State
must prove that Dugan violated the Privacy in Communications statute by “knowingly or
purposely” using “obscene, lewd, or profane language” on the telephone with
Redmond-Sherrill “with the purpose to . . . offend” her.
/S/ Patricia Cotter
We concur:
/S/ MIKE MCGRATH
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ RANDAL I. SPAULDING
District Court Judge Randal I. Spaulding
sitting for Justice James C. Nelson
Justice Jim Rice concurring in part, dissenting in part.
¶74 The Court concludes that Dugan’s statement did not constitute fighting words, is
not punishable under the captive audience doctrine, is not a true threat, is not obscenity,
and is “certainly not of high social value.” Opinion, ¶¶ 43, 44, 47, 48. Although the
Court may have established what Dugan’s statement is not, I would like to discuss what it
39
is and call it for what it is. My conclusion is based upon and limited to the specific facts
of this case, of one person speaking directly and individually to only one other person
who was duty-bound to receive communication, with no other intended audience.
¶75 As alleged, Dugan’s statement was a direct, individual, and personal attack upon
Redmond-Sherrill. It was demeaning, degrading, and debasing. It included only words
“which by their very utterance inflict injury.” Chaplinsky,

. It bore “no essential part of any exposition of ideas.” Chaplinsky,

. It was utterly without any social value whatsoever. It truly constitutes,
as used here and in this context, “no part of the expression of ideas.” R. A. V.,

505 U.S. at 385

112 S. Ct. at 2544

 (emphasis in original). It had only one purpose: to injure and
abuse Redmond-Sherrill, to reduce her human dignity to nothing more than a sexual act
or a sexual body part. “Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument.” Chaplinsky,

.
¶76    The Court correctly notes that the Supreme Court offered a clarifying statement in
Stevens about descriptions of speech it had used in previous cases. The Supreme Court
stated that such descriptions were not generally applicable tests that “permit the
Government to imprison any speaker so long as his speech is deemed valueless or
unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s
favor.” Stevens, ___ U.S. at ____,

. It is important to note, however,
that Stevens was addressing something far different from the issue here. The federal
40
statute at issue in Stevens criminalized depictions of animal cruelty with such “alarming
[definitional] breadth” that pictures of big game hunting could have been outlawed.
Stevens, ___ U.S. at ____,

130 S. Ct. at 1588-89

.         The Government defended the
challenge by offering the likewise incredibly broad argument that “depictions of animal
cruelty, as a class, are categorically unprotected by the First Amendment.” Stevens, ___
U.S. at ____,

130 S. Ct. at 1584

. It was in response to the Government’s unbridled
argument, which the Supreme Court characterized as a new “free-floating” First
Amendment test that was “startling and dangerous,” Stevens, ___ U.S. at ____,

130 S. Ct. at 1585

, that the Court distinguished some of its previous comments. However, in doing
so, it did not overrule Chaplinsky, which it neither discussed nor directly quoted in this
context, or any other previous case. Stevens, ___ U.S. at ____,

130 S. Ct. at 1585-86

.
Rather, it reaffirmed the concept that certain speech has been “historically unprotected,”
and noted that “‘[i]t rarely has been suggested that the constitutional freedom for speech
and press extends its immunity to speech or writing used as an integral part of conduct in
violation of a valid criminal statute.’” Stevens, ___ U.S. at ____,

(internal citation omitted).
¶77    It is unnecessary here to engage in the type of “ad hoc calculus of costs and
benefits” offered by the Government in Stevens, which the Supreme Court rejected.
There is no necessity of weighing Dugan’s statement against “the social interest in order
and morality,” Chaplinsky,

, because under the facts of
this case it holds no weight at all. On its face, the statement offered absolutely no social
value, and no justification whatsoever can be offered for it. It communicated no thought
41
or expression to any audience or any person beyond Redmond-Sherrill, who was on the
phone with Dugan pursuant to her public duty. The statement was, as alleged, intended
to be personally injurious only to her. The right of free speech should not extend to
Dugan’s individually directed, personally debasing, and injurious statement to
duty-bound Redmond-Sherrill that had no part of any exposition of ideas. R. A. V.,

505 U.S. at 385

112 S. Ct. at 2544

.
¶78    Dugan could have sought to verbally injure Redmond-Sherrill without using
“obscene, lewd, or profane language,” and he would not have violated the criminal
statute. Section 45-8-213(1)(a), MCA. Or, he could have used these particular words
without intending to injure Redmond-Sherrill, and he likewise would not be guilty of
violating the statute. However, as alleged, if he used these words and intended to injure
Redmond-Sherrill, then he used his speech “as an integral part of conduct in violation of
a valid criminal statute,” for which the Supreme Court has approved criminal sanction.
Stevens, ___ U.S. at ____,

. Thus, Dugan’s motion to dismiss was
properly denied.
¶79    “The right to free speech is not absolute.” State v. Compas,

1998 MT 140

, ¶ 25,

290 Mont. 11

964 P.2d 703

. We have often quoted Chaplinsky, as quoted at Opinion,
¶ 18, as the basis that the First Amendment does not protect all speech.             See
O’Shaughnessy, 216 Mont. at 438,

704 P.2d at 1024

; Lance, 222 Mont. at 102,

721 P.2d at 1265

; State v. Cooney,

271 Mont. 42

, 48,

894 P.2d 303

, 307 (1995); State v. Helfrich,

277 Mont. 452

, 460,

922 P.2d 1159

, 1164 (1996); Nye, 283 Mont. at 512-13,

; Robinson, ¶ 18. All 50 states, the District of Columbia, and the federal government
42
have some form of criminal statute prohibiting harassing or obscene communication
through the telephone. Josh Tatum, First Amendment Center, Telephone-harassment
statutes, http://www.firstamendmentcenter.org/telephone-harassment-statutes (accessed
Jan. 25, 2013); American Law Institute, Model Penal Code and Commentaries: Official
Draft and Revised Comments, § 250.4 cmts. at 360 (1980).           In Montana, we have
previously held that harassment and intimidation fall outside the protection of the First
Amendment, independent from analyses examining whether the words were unprotected
“fighting words,” obscenity, or threats, or were made to a captive audience. See e.g.
Cooney, 271 Mont. at 49,

894 P.2d at 307

 (“free speech does not include the right to
cause substantial emotional distress by harassment or intimidation.”); Nye, 283 Mont. at
513,

 (“[a]ctivities which are intended to embarrass, annoy or harass . . .
are not protected by the First Amendment.”). Further, the Montana Constitution provides
that “[e]very person shall be free to speak or publish whatever he will on any subject,
being responsible for all abuse of that liberty.” Mont. Const. art. II, § 7 (emphasis
added).
¶80   Dugan chose to speak in a manner that was as debasing, injurious, and abusive as
can be spoken in our society, in a direct, personal, and individual attack on a public
employee who was duty-bound to receive communications from Dugan. I would hold
that Dugan’s speech was integral in harassing Redmond-Sherrill, as “an activity illegal
throughout the Nation,” and is “a previously recognized, long-established category of
unprotected speech” by this Court. Stevens, ___ U.S. at ____,