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Dale Wetzel, Associated Press Writer, Published December 22 2009

North Dakota Supreme Court hears racial slur case

BISMARCK – North Dakota’s Supreme Court is considering whether a teenager who taunted another teen with a racial slur at a dance is protected by the First Amendment’s free-speech guarantees.

A state district judge had ruled that the 14-year-old boy, who is white, was guilty of disorderly conduct. His attorney, Russell Myhre, told the Supreme Court on Monday that the boy was punished only for describing the 17-year-old girl, who is black, as a “stupid (slur),” and not for anything he did.

“The argument that we have ... is the mere utterance of words is not disorderly conduct under our statute,” Myhre said. “It has to be coupled with more.”

The case was handled in juvenile court in Valley City, where the incident took place last February as the girl was leaving a dance at the teen center.

Lee Grossman, an assistant Barnes County state’s attorney, said the boy intended to harass the girl, and argued that the disorderly conduct conviction should be upheld.

“Those two words are protected speech, but when you direct them at somebody, for the purpose of harassment, it is no longer protected free speech,” Grossman said. “It’s not just the utterance of a general phrase. It’s this particular phrase, directed at a particular person.”

North Dakota’s law against disorderly conduct makes it a crime to use abusive language “with intent to harass, annoy or alarm another person.” But it says the law does not apply to “constitutionally protected activity,” and says a judge must decide whether that exception applies.

The state Supreme Court is considering a similar appeal in a separate case, filed by a 14-year-old white girl who was convicted of disorderly conduct for taunting the same 17-year-old girl with the same slur on the same night.

Myhre, who represents both 14-year-olds, said the two were put on probation, ordered to perform community service and directed to take racial sensitivity classes. They have completed those obligations, he said Monday.

During arguments Monday, Myhre said the 14-year-old boy was “deeply regretful” about the February incident.

In the second case, the 14-year-old girl, who is identified as H.K. in court filings, was accused of confronting the older girl in a bathroom during the same dance.

The 17-year-old testified in that case that the

14-year-old girl and two other girls started “yelling at me and calling me (a racial slur) and telling me I don’t own this town, and they own this town, and they don’t want (racial slurs) in their town.”

Later, at a Valley City pizza parlor, the two girls confronted each other, and the 14-year-old made remarks to the older girl “that she was worthless, and questioning why she was in town,” a court filing says.

Southeast District Judge John Paulson, who heard both cases, ruled that the 14-year-old girl would be guilty of disorderly conduct whether or not she used a racial slur.

“This is a planned-out scheme where ... they were going to flip her off, call her names, create harassment, make it as uncomfortable for her as possible,” Paulson is quoted as saying in a court filing. “That is disorderly conduct.”

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