WASHINGTON The Supreme Court, sidestepping a dispute over cussing, refused today to consider whether a Montana man's foul language to a law enforcement officer was free speech protected by the Constitution.
The man, Malachi Robinson, was walking down the street about midnight four years ago when he called the Missoula county deputy in a nearby squad car a "(expletive) pig." The deputy got out and confronted Robinson, who uttered another expletive at the officer.
His swearing earned Robinson a $50 fine for disorderly conduct. He also was sentenced to 10 days in jail, but the judge suspended that.
Today the justices declined without comment to review his appeal in Robinson v. Montana. Their refusal does not address the merits of the issue.
By declining to hear Robinson's appeal, justices left undisturbed a Montana Supreme Court ruling that unprovoked utterances are not protected.
"The First Amendment ought to protect citizens who criticize officials, even if it's in a crude manner, as long as there was no threat involved," Robinson's attorney, Jeffrey Fisher of Seattle, said in an interview.
Fisher said while the comments may have been "crude, obnoxious and offensive," they did not rise to the level of threatening "fighting words" unprotected by the First Amendment.
Fisher said courts around the country are divided over what constitutes "fighting words," and that without clarification from the Supreme Court some people could be unfairly targeted.
"Officers whether consciously or not may selectively arrest some people for using profanity toward them, while turning the other cheek with respect to others," Fisher told justices in a court filing. "This is not an acceptable way to administer criminal law, especially where free speech concerns are at stake."
A criminal lawyers' group urged the Court to hear the case of Robinson, who did not have enough money to pay the standard fees in his Supreme Court appeal.
The conviction stigmatizes Robinson and also stands in the way of his job opportunities, Washington lawyer Katherine Fallow, representing the National Association of Criminal Defense Lawyers, told justices.
The state of Montana did not file a response to the Supreme Court appeal.