While our review of "issues of constitutional law" is plenary, we generally do not address constitutional issues raised for the first time on appeal, except under the plain error doctrine. State v. Flowers , 2018 MT 96, ¶ 12, 391 Mont. 237, 416 P.3d 180 ; City of Billings v. Nelson , 2014 MT 98, ¶ 16, 374 Mont. 444, 322 P.3d 1039. See alsoState v. Taylor , 2010 MT 94, ¶¶ 12-13, 356 Mont. 167, 231 P.3d 79.
Because the rationale underlying the fighting words doctrine is the state's interest in preventing the immediate violent reaction likely to result when highly offensive language is used to insult and humiliate the addressee, "[t]he potential to elicit [such] an immediate violent response exists only [when] the communication occurs [face to face] or in close physical proximity." Billings v. Nelson , 374 Mont. 444, 449, 322 P.3d 1039 (2014). This requirement is satisfied in the present case even though both men were in their vehicles when the defendant uttered the slurs.
¶4 On appeal from a municipal court of record, the district court functions as an intermediate appellate court. City of Billings v. Nelson , 2014 MT 98, ¶ 15, 374 Mont. 444, 322 P.3d 1039. When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, employing the appropriate standard of review.
When reviewing the district court's decision in such an appeal, we review the case as if the appeal was originally filed in this Court, applying the appropriate standard of review. City of Billings v. Nelson , 2014 MT 98, ¶ 15, 374 Mont. 444, 322 P.3d 1039. We review a lower court's legal conclusion regarding venue de novo.
When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. City of Billings v. Nelson, 2014 MT 98, ¶ 15, 374 Mont. 444, 322 P.3d 1039(citing City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461). In its appellate capacity, the district court is confined to review of the record and questions of law.
When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. City of Billings v. Nelson, 2014 MT 98, ¶ 15, 374 Mont. 444, 322 P.3d 1039 (citing City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461). In its appellate capacity, the district court is confined to review of the record and questions of law.
Mont. Code Ann. § 45-8-101. “The language of the disorderly conduct statute prohibiting use of ‘threatening, profane, or abusive language' has been construed to apply only to ‘fighting words.'” City of Billings v. Nelson, 322 P.3d 1039, 1044 (Mont. 2014) (citing Mont. Code Ann. § 45-8101 (1)(c); Montana v. Robinson, 82 P.3d 27, 29 (Mont. 2003)).
Chaplinsky v. State of N.H., 315 U.S. 568, 572 (1942) ("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." (internal quotation marks omitted)); see also, e.g., City of Billings v. Nelson, 322 P.3d 1039, 1045 (Mont. 2014) ("Racial slurs . . . may be considered 'fighting words.'"). The Court need not determine, however, whether the alleged racial slurs in this case definitively constitute "fighting words."
Oltrogge and Nelson were tried together and appealed their convictions on identical grounds. The circumstances of the offense and trial are described in greater detail in Nelson's related appeal. City of Billings v. Nelson, 2014 MT 98, ––– Mont. ––––, ––– P.3d ––––.¶ 4 In that appeal, we concluded that the disorderly conduct statute, § 45–8–101, MCA, does not require proof that the defendant disturbed the peace of more than one person.
¶ 19 While this issue has not been specifically addressed in Colorado, a number of states have concluded that "[t]he potential to elicit an immediate violent response exists only where the communication occurs face-to-face or in close physical proximity." City of Billings v. Nelson , 374 Mont. 444, 322 P.3d 1039, 1045 (2014) ; see also Citizen Publ'g Co. v. Miller , 210 Ariz. 513, 115 P.3d 107, 113 (2005) ("This case does not fall within the fighting words exception to the First Amendment. The statements at issue were made in a letter to the editor, not in a face-to-face confrontation with the target of the remarks.