Disorderly Conduct and Race Speech

In City of Billings v. Nelson, 2014 MT 98, the Montana Supreme Court held that racial slurs alone can satisfy the criminal statute of disturbing the peace.

Nelson was convicted of disorderly conduct following a municipal court bench trial.  Nelson’s 13-year-old neighbor testified that Nelson and her daughter pulled their car alongside him as he was walking home from school and that both accosted him with offensive gestures and racial slurs. Nelson filed a motion to dismiss, which was denied, so Nelson appealed that ruling to the Montana Supreme Court.

The Supreme Court affirmed that disorderly conduct can be committed when only a single person’s peace is disturbed.  The Court reasoned that “a racial slur is the type of speech that would, by its very utterance, inflict injury and tend to incite a breach of the peace,” rejecting the argument that by staying in the car Nelson could not have incited an immediate, violent response.

This case is interesting because it holds that racial slurs alone constitute disorderly conduct. It would appear that if a person is convicted of disorderly conduct on that basis alone, the defendant may consider challenging the conviction as violating the First Amendment. Given that the Supreme Court of North Dakota ruled similarly, this kind of case may be one that the United States Supreme Court will ultimately have to resolve.

If you have been charged with disorderly conduct based on speech and want to know what your options are, contact Tim Baldwin here.

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