Last week, ACLU of Montana filed an important amicus brief relating to First Amendment rights that are more important in this moment than ever before. We are asking the Montana Supreme Court to overrule a case from 2003 (State v. Robinson), which erroneously held that speech can be punished as fighting words if it is “sufficiently and inherently inflammatory” and fails to contribute “to our constitutionally-protected social discourse.” If speech can be punished merely because—in the government’s view—it is inflammatory and/or fruitless, the government could suppress speech entitled to the highest level of protection under the First Amendment.
The right to criticize the government and its officials is at the heart of the First Amendment. This is no less true when criticism is expressed in vitriolic or even profane language or when directed toward police officers.
As communities across the country mobilize in opposition to the federal government's authoritarian actions, they should do so without fear of being prosecuted for exercising their First Amendment rights to criticize government officials, even if that criticism is rude or profane. In addition to our amicus participation involving the right to record law enforcement (as in Kalispell v. Doman), ACLU of Montana is committed to protecting the First Amendment rights of all Montanans in this perilous time.