City of Helena v. Mayfield

Generally, fighting words are those likely to provoke immediate violence. But in State v. Robinson, 82 P.3d 270 (Mont. 2003), upon which the trial court in City of Helena v. Mayfield relied, the Montana Supreme Court dramatically deviated from this definition by holding that calling a police officer a “fucking pig” constitutes unprotected fighting words because it is “sufficiently and inherently inflammatory” and does not contribute “to our constitutionally-protected social discourse.”

Joined by the ACLU of Montana, FIRE filed an amicus brief in the Montana Supreme Court arguing that Robinson should be overruled. If speech critical of the government can be punished as fighting words 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. Moreover, even speech on the periphery of the First Amendment is afforded protection to safeguard freedom of expression. If Robinson remains on the books, courts will continue to invoke it—as the trial court did here—to authorize government retaliation against clearly protected expression.