Oregon high court protects racist, homophobic speech

PORTLAND — Yelling homophobic or racist names is free speech protected by the Oregon Constitution if the insults don't lead to violence.

In a unanimous ruling, the Oregon Supreme Court struck down a provision of the state harassment law that prohibited insulting a person publicly in a way likely to merely provoke violence.

Oregon law does not make the threat of violence a legal issue when it comes to insulting speech or name calling, unless such violence is imminent, the court said.

The Oregon chapter of the American Civil Liberties Union said the lack of any requirement that violence be threatened was a fatal flaw in a law the ACLU warned legislators against adopting years ago.

"The law was written broadly enough that it swept in speech that was protected as well as speech that could be threatening," said Dave Fidanque, ACLU executive director in Oregon.

William Johnson had appealed his conviction for shouting names at two women — one black and one white — whom he presumed were lesbians.

They moved in front of his pickup when a country road narrowed from two lanes to one in heavy traffic, and Johnson responded by calling them insulting names using amplified sound equipment.

As the rush-hour traffic slowed to stop-and-go, one woman got out of the car to confront Johnson, who used a string of homophobic and racist names to insult her.

The woman testified she believed Johnson was trying to incite her to violence.

But she returned to her car when her companion intervened and told her a teenager in the bed of Johnson's pickup was swinging a skateboard in a menacing way.

In the opinion by Justice W. Michael Gillette, the court noted that, despite the epithets, Johnson "did not verbally threaten the woman with violence and no actual violence took place."

Gillette wrote that "harassment and annoyance are among common reactions to seeing or hearing gestures or words that one finds unpleasant."

But he added, "Words or gestures that cause only that kind of reaction, however, cannot be prohibited in a free society, even if the words or gestures occur publicly and are insulting, abusive, or both."