State v. Baccala ( 2017 )

 STATE OF CONNECTICUT v. NINA C. BACCALA
(SC 19717)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and
D’Auria, Js.*
Syllabus
Convicted of the crime of breach of the peace in the second degree in
connection with the defendant’s customer service dispute with a super-
market employee, the defendant appealed, claiming that the evidence
was insufficient to support her conviction in accordance with her first
amendment rights. The defendant telephoned a supermarket to inquire
whether its customer service desk was open, and, after being informed
during that call by F, an assistant manager, that the desk had already
closed for the evening and that F would be unable to process her money
transfer request, the defendant proceeded to utter various swear words.
After the defendant arrived at the supermarket, F approached the defen-
dant and again informed her that the customer service desk was closed.
The defendant became angry and then proceeded to loudly direct crude
and angry comments at F, including ‘‘fat ugly bitch, ‘‘cunt,’’ and ‘‘fuck
you, you’re not a manager,’’ while making gestures with a cane that she
was carrying. F remained professional and wished the defendant a good
night, which prompted the defendant to leave the supermarket. Follow-
ing her conviction, the defendant appealed. Held that the defendant’s
conviction of breach of the peace in the second degree on the basis of
pure speech constituted a violation of the first amendment to the United
States constitution, as the defendant’s speech, unaccompanied by
threats, did not fall within the narrow category of unprotected fighting
words, the state having failed to prove beyond a reasonable doubt
that F was likely to have retaliated with violence in response to the
defendant’s words under the circumstances in which they were uttered,
and, accordingly, the judgment of the trial court was reversed and the
case was remanded with direction to render a judgment of acquittal;
this court, utilizing the proper contextual analysis that required consider-
ation of the actual circumstances, as perceived by a reasonable speaker
and addressee, concluded that an average store manager in F’s position
would not have responded to the defendant’s remarks with violence, F,
having previously heard the defendant’s crude tirade during the tele-
phone call, understood that when she approached the defendant to
reiterate a message she knew the defendant did not want to hear, would
reasonably have been aware of the possibility that a similar barrage
of insults would be directed at her, and, as the acting manager of a
supermarket, F was expected to model appropriate, responsive behavior
aimed at diffusing the situation and would have had a degree of control
over the premises where the confrontation took place.
(Three justices concurring and dissenting in one opinion)
Argued November 10, 2016—officially released July 11, 2017
Procedural History
Substitute information charging the defendant with
two counts of the crime of threatening in the second
degree and one count of the crime of breach of the
peace in the second degree, brought to the Superior
Court in the judicial district of Tolland, geographical
area number nineteen, and tried to the jury before Gra-
ham, J.; verdict and judgment of guilty of breach of the
peace in the second degree, from which the defendant
appealed. Reversed; judgment directed.
Damian K. Gunningsmith, with whom were John
L. Cordani, Jr., and, on the brief, Martin B. Margulies,
for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Andrew R. Durham, assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Nina C. Baccala, was
convicted of breach of the peace in the second degree
in violation of General Statutes § 53a-181 (a) (5)1 solely
on the basis of the words that she used to denigrate the
manager of a supermarket in the course of a customer
service dispute. Fundamentally, we are called upon to
determine whether the defendant’s speech is protected
under the first amendment to the United States constitu-
tion or, rather, constitutes criminal conduct that a civi-
lized and orderly society may punish through
incarceration. The distinction has profound conse-
quences in our constitutional republic. ‘‘If there is a
bedrock principle underlying the [f]irst [a]mendment,
it is that the government may not prohibit the expres-
sion of an idea simply because society finds the idea
itself offensive or disagreeable.’’ Texas v. Johnson, 491
U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).
Only certain types of narrowly defined speech are
not afforded the full protections of the first amendment,
including ‘‘fighting words,’’ i.e., those words that ‘‘have
a direct tendency to cause acts of violence by the person
to whom, individually, the remark is addressed.’’ (Inter-
nal quotation marks omitted.) Chaplinsky v. New
Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed.
1031 (1942). The broad language of Connecticut’s
breach of the peace statute; see footnote 1 of this opin-
ion; has been limited accordingly. See State v. Indri-
sano, 228 Conn. 795, 812, 640 A.2d 986 (1994). Because
the words spoken by the defendant were not likely to
provoke a violent response under the circumstances in
which they were uttered, they cannot be proscribed
consistent with the first amendment. Accordingly, we
reverse the judgment of the trial court.2
The jury reasonably could have found the following
facts. On the evening of September 30, 2013, the defen-
dant telephoned the Stop & Shop supermarket in Ver-
non to announce that she was coming to pick up a
Western Union money transfer so they would not close
the customer service desk before she arrived. The
defendant spoke with Tara Freeman, an experienced
assistant store manager who was in charge of the daily
operations at the supermarket, which spanned approxi-
mately 65,000 square feet. Freeman informed the defen-
dant that the customer service desk already had closed
and that she was unable to access the computer that
processed Western Union transactions. The defendant
became belligerent, responded that she ‘‘really didn’t
give a shit,’’ and called Freeman ‘‘[p]retty much every
swear word you can think of’’ before the call was ter-
minated.
Despite Freeman’s statements to the contrary, the
defendant believed that as long as she arrived at the
supermarket before 10 p.m., she should be able to
obtain the money transfer before the customer service
desk closed. Accordingly, a few minutes after she tele-
phoned, the defendant arrived at the supermarket,
which was occupied by customers and employees. The
defendant proceeded toward the customer service desk
located in proximity to the registers for grocery check-
out and began filling out a money transfer form, even
though the lights at the desk were off. Freeman
approached the defendant, a forty year old woman who
used a cane due to a medical condition that caused
severe swelling in her lower extremities, and asked her
if she was the person who had called a few minutes
earlier. Although the defendant denied that she had
called, Freeman recognized her voice. After Freeman
informed the defendant, as she had during the telephone
call, that the customer service desk was closed, the
defendant became angry and asked to speak with a
manager. Freeman replied that she was the manager
and pointed to her name tag and a photograph on the
wall to confirm her status. Some employees, including
the head of the cashier department, Sarah Luce, were
standing nearby as this exchange took place.
The defendant proceeded to loudly call Freeman a
‘‘fat ugly bitch’’ and a ‘‘cunt,’’3 and said ‘‘fuck you, you’re
not a manager,’’ all while gesticulating with her cane.
Despite the defendant’s crude and angry expressions
directed at her, Freeman remained professional. She
simply responded, ‘‘[h]ave a good night,’’ which
prompted the defendant to leave the supermarket.
Thereafter, the defendant was arrested and charged
with breach of the peace in the second degree.4 Follow-
ing a jury trial, the defendant was convicted of that
charge and sentenced to twenty-five days incarceration.
The defendant appealed, and we transferred the appeal
to this court pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-2.
On appeal, the defendant claims that the evidence
was insufficient to support her conviction of breach of
the peace in the second degree because the words she
uttered to Freeman did not constitute fighting words.
Although the defendant asserts that her speech is pro-
tected under the first amendment to the federal consti-
tution, her principal argument is that we should
construe article first, §§ 4 and 5, of the Connecticut
constitution to provide greater free speech protection
than the first amendment so as to limit the fighting
words exception to express invitations to fight. We con-
clude that it is unnecessary to decide whether the state
constitution would afford greater protection because
the evidence was plainly insufficient to support the
defendant’s conviction under settled federal constitu-
tional jurisprudence.5
This court has not considered the scope and applica-
tion of the fighting words exception for more than two
decades. See State v. Szymkiewicz, 237 Conn. 613, 678
A.2d 473 (1996). Accordingly, it is appropriate for us
to consider the exception’s roots and its scope in light of
more recent jurisprudential and societal developments.
The fighting words exception was first articulated in
the seminal case of Chaplinsky v. New Hampshire,
supra, 315 U.S. 568. After noting that the right of free
speech is not absolute, the United States Supreme Court
broadly observed: ‘‘There are certain well-defined and
narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise
any [c]onstitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting
or ‘fighting’ words—those which by their very utterance
inflict injury or tend to incite an immediate breach of
the peace.’’ (Footnote omitted.) Id., 571–72.
Unlike George Carlin’s classic 1972 comedic mono-
logue, ‘‘Seven Words You Can Never Say on Televi-
sion,’’6 it is well settled that there are no per se fighting
words. See Downs v. State, 278 Md. 610, 615, 366 A.2d
41 (1976). Although certain language in Chaplinsky
seemed to suggest that some words in and of themselves
might be inherently likely to provoke the average person
to violent retaliation, such as ‘‘God damned racketeer’’
and ‘‘damned Fascist’’; (internal quotation marks omit-
ted) Chaplinsky v. New Hampshire, supra, 315 U.S.
569, 574; subsequent case law eschewed the broad
implications of such a per se approach. See People v.
Stephen, 153 Misc. 2d 382, 387, 581 N.Y.S.2d 981 (1992)
(‘‘[w]hile the original Chaplinsky formulation of ‘fight-
ing words’ may have given some impression of estab-
lishing a category of words which could be proscribed
regardless of the context in which they were used,
developing [f]irst [a]mendment doctrine in the half cen-
tury since Chaplinsky was decided has continually
resorted to analyzing provocative expression contextu-
ally’’); see also Texas v. Johnson, supra, 491 U.S. 409;
Gooding v. Wilson, 405 U.S. 518, 525, 92 S. Ct. 1103, 31
L. Ed. 2d 408 (1972); Cohen v. California, 403 U.S. 15,
20, 23, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971); L. Tribe,
American Constitutional Law (2d Ed. 1988) § 12-10, pp.
850–51. Rather, ‘‘words may or may not be ‘fighting
words,’ depending upon the circumstances of their
utterance.’’ Lewis v. New Orleans, 415 U.S. 130, 135,
94 S. Ct. 970, 39 L. Ed. 2d 214 (1974) (Powell, J., concur-
ring); see R. A. V. v. St. Paul, 505 U.S. 377, 432, 112 S. Ct.
2538, 120 L. Ed. 2d 305 (1992) (Stevens, J., concurring)
(‘‘[w]hether words are fighting words is determined in
part by their context’’); Hammond v. Adkisson, 536
F.2d 237, 239 (8th Cir. 1976) (first amendment requires
‘‘determination that the words were used ‘under such
circumstances’ that they were likely to arouse to imme-
diate and violent anger the person to whom the words
were addressed’’ [emphasis omitted]); State v. Szymkie-
wicz, supra, 237 Conn. 620 (considering both ‘‘the
words used by the defendant’’ and ‘‘the circumstances
in which they were used’’); State v. Hoskins, 35 Conn.
Supp. 587, 591, 401 A.2d 619 (1978) (‘‘The ‘fighting
words’ concept has two aspects. One involves the qual-
ity of the words themselves. The other concerns the
circumstances under which the words are used.’’).
This context based view is a logical reflection of the
way the meaning and impact of words change over
time. See R.I.T. v. State, 675 So. 2d 97, 99 (Ala. Crim.
App. 1995); People v. Stephen, supra, 153 Misc. 2d 387;
State v. Harrington, 67 Or. App. 608, 613 n.5, 680 P.2d
666, cert. denied, 297 Or. 547, 685 P.2d 998 (1984); see
also Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158,
62 L. Ed. 372 (1918) (‘‘[a] word is not a crystal, transpar-
ent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to
the circumstances and the time in which it is used’’).
While calling someone a racketeer or a fascist might
naturally have invoked a violent response in the 1940s
when Chaplinsky was decided, those same words
would be unlikely to even raise an eyebrow today. Since
that time, public discourse has become more coarse.
‘‘[I]n this day and age, the notion that any set of words
are so provocative that they can reasonably be expected
to lead an average listener to immediately respond with
physical violence is highly problematic.’’ (Emphasis in
original.) State v. Tracy, 200 Vt. 216, 237, 130 A.3d 196
(2015); accord People in the Interest of R.C., Docket
No. 14CA2210, 2016 WL 6803065, *4 (Colo. App. Novem-
ber 17, 2016). We need not, however, consider the con-
tinued vitality of the fighting words exception in the
present case because a contextual examination of the
circumstances surrounding the defendant’s remarks
inexorably leads to the conclusion that they were not
likely to provoke a violent response and, therefore, were
not criminal in nature or form.
A proper contextual analysis requires consideration
of the actual circumstances as perceived by a reason-
able speaker and addressee to determine whether there
was a likelihood of violent retaliation. See Texas v.
Johnson, supra, 491 U.S. 409; Lewis v. New Orleans,
supra, 415 U.S. 135 (Powell, J., concurring); Gooding
v. Wilson, supra, 405 U.S. 528; Cohen v. California,
supra, 403 U.S. 20, 23. This necessarily includes a con-
sideration of a host of factors.
For example, the manner and circumstances in which
the words were spoken bears on whether they were
likely to incite a violent reaction. Even the court in
Chaplinsky acknowledged that words which are other-
wise profane, obscene, or threatening might not be
deemed fighting words if said with a ‘‘ ‘disarming
smile.’ ’’ Chaplinsky v. New Hampshire, supra, 315 U.S.
573; see also Lamar v. Banks, 684 F.2d 714, 718–20 (11th
Cir. 1982) (remanding for evidentiary hearing because
there was no factual record as to circumstances in
which alleged fighting words were made, noting that
‘‘the tone of voice may have been jocular rather than
hostile, and we do not know . . . what the rest of the
conversation was like’’); State v. Harrington, supra, 67
Or. App. 613 n.5 (‘‘Forms of expression vary so much
in their contexts and inflections that one cannot specify
particular words or phrases as being always fighting.
What is gross insult in one setting is crude humor in
another.’’ [Internal quotation marks omitted.]). The situ-
ation under which the words are uttered also impacts
the likelihood of a violent response. See, e.g., Klen v.
Loveland, 661 F.3d 498, 510 (10th Cir. 2011) (consider-
ing that words were spoken in context of plaintiffs’
attempts to obtain building permit and that city
employee addressees ‘‘did not consider the . . . behav-
ior particularly shocking or memorable, given the
rough-and-tumble world of the construction trade’’);
People v. Prisinzano, 170 Misc. 2d 525, 531–32, 648
N.Y.S.2d 267 (1996) (considering that words were spo-
ken by union worker to several replacement workers
during course of labor dispute); Seattle v. Camby, 104
Wash. 2d 49, 54, 701 P.2d 499 (1985) (en banc) (‘‘Looking
at the actual situation presented in this case, we find
an intoxicated defendant being escorted out of a restau-
rant by a mild mannered, unaroused doorman-host with
a police officer present. Given the specific context in
which the words were spoken, it was not plainly likely
that a breach of the peace would occur.’’). Thus,
whether the words were preceded by a hostile exchange
or accompanied by aggressive behavior will bear on the
likelihood of such a reaction. See State v. Szymkiewicz,
supra, 237 Conn. 615–16; Landrum v. Sarratt, 352 S.C.
139, 143, 572 S.E.2d 476 (App. 2002); see also State v.
James M., 111 N.M. 473, 476, 806 P.2d 1063 (App. 1990)
(noting that fighting words were uttered during course
of hostile argument), cert. denied, 111 N.M. 529, 807
P.2d 227 (1991); In re S.J.N-K., 647 N.W.2d 707, 709
(S.D. 2002) (noting that fighting words were uttered
in course of speaker’s vehicle tailgating addressee’s
vehicle as latter drove away from scene).
A proper examination of context also considers those
personal attributes of the speaker and the addressee
that are reasonably apparent because they are necessar-
ily a part of the objective situation in which the speech
was made. See In re Nickolas S., 226 Ariz. 182, 188, 245
P.3d 446 (2011); State v. John W., 418 A.2d 1097, 1104
(Me. 1980); Seattle v. Camby, supra, 104 Wash. 2d 54.
Courts have, for example, considered the age, gender,
race, and status of the speaker. See, e.g., Lewis v. New
Orleans, supra, 415 U.S. 135 (Powell, J., concurring)
(‘‘[i]t is unlikely . . . that the words said to have been
used . . . would have precipitated a physical confron-
tation between the middle-aged woman who spoke
them and the police officer in whose presence they
were uttered’’); Hammond v. Adkisson, supra, 536 F.2d
240 (‘‘the trier of fact might well conclude . . . that
there was no likelihood that a [nineteen year old] young
woman’s words would provoke a violent response from
the particular officer involved’’); In re Nickolas S.,
supra, 188 (determining there was no likelihood of vio-
lent response when student addressed coarse remark
to teacher in classroom); In re Spivey, 345 N.C. 404,
414–15, 480 S.E.2d 693 (1997) (holding that racial slur
directed at African-American man by white man will
cause ‘‘hurt and anger’’ and ‘‘often provoke him to con-
front the white man and retaliate’’). Indeed, common
sense would seem to suggest that social conventions,
as well as special legal protections, could temper the
likelihood of a violent response when the words are
uttered by someone less capable of protecting them-
selves, such as a child, a frail elderly person, or a seri-
ously disabled person.7
Although the United States Supreme Court has
observed that the speech must be of such a nature that it
is ‘‘likely to provoke the average person to retaliation’’;
(emphasis added; internal quotation marks omitted)
Texas v. Johnson, supra, 491 U.S. 409; when there are
objectively apparent characteristics that would bear on
the likelihood of such a response, many courts have
considered the average person with those characteris-
tics. Thus, courts also have taken into account the
addressee’s age, gender, and race. See, e.g., Bethel v.
Mobile, Docket No. 10-0009-CG-N, 2011 WL 1298130, *7
(S.D. Ala. April 5, 2011) (‘‘[t]here can be little doubt
that repeatedly calling a [thirteen year old] girl a ‘whore’
and a ‘slut’ in the presence of the girl’s mother serves
no purpose other than to provoke a confrontation’’);
In re John M., 201 Ariz. 424, 428, 36 P.3d 772 (App.
2001) (holding that racial slurs were ‘‘likely to provoke
a violent reaction when addressed to an ordinary citizen
of African-American descent’’); Svedberg v. Stamness,
525 N.W.2d 678, 684 (N.D. 1994) (observing that ‘‘it
is proper to consider the age of the addressee when
determining the contextual setting’’ and that ‘‘[n]o one
would argue that a different reaction is likely if a [thir-
teen year old] boy and a [seventy-five year old] man
are confronted with identical fighting words’’); see also
People in the Interest of R.C., supra, 2016 WL 6803065,
*7 (concluding that ‘‘the average person—even an aver-
age [fourteen year old]—would not be expected to fly
into a violent rage upon being shown a photo of himself
with a penis drawn over it’’).
Similarly, because the fighting words exception is
concerned with the likelihood of violent retaliation, it
properly distinguishes between the average citizen and
those addressees who are in a position that carries
with it an expectation of exercising a greater degree of
restraint. In Lewis v. New Orleans, supra, 415 U.S. 135,
Justice Powell, in concurrence, suggested that ‘‘a prop-
erly trained [police] officer may reasonably be expected
to exercise a higher degree of restraint than the average
citizen, and thus be less likely to respond belligerently
to fighting words.’’ (Internal quotation marks omitted.)
The Supreme Court later recognized the legitimacy of
this principle, observing that the fighting words excep-
tion ‘‘might require a narrower application in cases
involving words addressed to a police officer’’ for the
reason articulated by Justice Powell.8 Houston v. Hill,
482 U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d 398
(1987). The Supreme Court did not have occasion to
formally adopt the narrower standard in either Lewis
or Hill because those cases turned on facial challenges,
not as applied challenges that would require analyzing
the speaker and the police officer addressee. Neverthe-
less, a majority of courts, including ours, hold police
officers to a higher standard than ordinary citizens
when determining the likelihood of a violent response
by the addressee. See, e.g., State v. Williams, 205 Conn.
456, 474 n.7, 534 A.2d 230 (1987); State v. Nelson, 38
Conn. Supp. 349, 354, 448 A.2d 214 (1982); Harbin v.
State, 358 So. 2d 856, 857 (Fla. App. 1978); State v. John
W., supra, 418 A.2d 1104.
The Supreme Court has not weighed in on the ques-
tion of whether positions other than police officers
could carry a greater expectation of restraint than the
ordinary citizen. Indeed, since Texas v. Johnson, supra,
491 U.S. 409, the Supreme Court has not considered the
fighting words exception as applied to any addressee
in more than twenty-five years. Nevertheless, several
courts have considered as part of the contextual inquiry
whether the addressee’s position would reasonably be
expected to cause him or her to exercise a higher degree
of restraint than the ordinary citizen under the circum-
stances. See, e.g., In re Nickolas S., supra, 226 Ariz. 188
(‘‘we do not believe that [the student’s] insults would
likely have provoked an ordinary teacher to ‘exchange
fisticuffs’ with the student or to otherwise react vio-
lently’’); In re Louise C., 197 Ariz. 84, 86, 3 P.3d 1004
(App. 1999) (juvenile’s derogatory language to principal
did not constitute fighting words because ‘‘[it] was not
likely to provoke an ordinary citizen to a violent reac-
tion, and it was less likely to provoke such a response
from a school official’’); State v. Tracy, supra, 200 Vt.
238 n.19 (determining that ‘‘average person in the
coach’s position would [not] reasonably be expected
to respond to [the] defendant’s harangue with violence’’
where defendant was parent of player on coach’s junior
high school girls’ basketball team); but see People v.
Stephen, supra, 153 Misc. 2d 390 (distinguishing earlier
fighting words case involving defendant commenting
to both police officer and private security guard, latter
being ‘‘a civilian from whom [the remarks] might con-
ceivably have evoked a retaliatory response’’).
In sum, these cases affirm the fundamental principle
that there are no per se fighting words; rather, courts
must determine on a case-by-case basis all of the cir-
cumstances relevant to whether a reasonable person
in the position of the actual addressee would have been
likely to respond with violence. This principle is consis-
tent with the contextual approach taken when consider-
ing other categories of speech deemed to fall outside
the scope of first amendment protection, such as true
threats and incitement. See, e.g., State v. Krijger, 313
Conn. 434, 450, 97 A.3d 946 (2014) (‘‘In the context of
a threat of physical violence, [w]hether a particular
statement may properly be considered to be a [true]
threat is governed by an objective standard—whether
a reasonable person would foresee that the statement
would be interpreted by those to whom the maker com-
municates the statement as a serious expression of
intent to harm or assault. . . . [A]lleged threats should
be considered in light of their entire factual context,
including the surrounding events and reaction of the
listeners.’’ [Internal quotation marks omitted.]); id.,
453–54 (‘‘[a]n important factor to be considered in
determining whether a facially ambiguous statement
constitutes a true threat is the prior relationship
between the parties’’); In re S.W., 45 A.3d 151, 157 (D.C.
2012) (‘‘[A] determination of what a defendant actually
said is just the beginning of a threats analysis. Even
when words are threatening on their face, careful atten-
tion must be paid to the context in which those state-
ments are made to determine if the words may be
objectively perceived as threatening.’’); see also Texas
v. Johnson, supra, 491 U.S. 409 (in considering whether
public burning of American flag constituted unpro-
tected incitement, Supreme Court observed that ‘‘we
have not permitted the government to assume that every
expression of a provocative idea will incite a riot, but
have instead required careful consideration of the
actual circumstances surrounding such expression,
asking whether the expression is directed to inciting
or producing imminent lawless action and is likely to
incite or produce such action’’ [emphasis added; inter-
nal quotation marks omitted]).
We are mindful that, despite the substantial body of
case law underscoring the significance of the actual
circumstances in determining whether the words spo-
ken fall within the narrow fighting words exception, a
few courts remain reluctant to take into account the
circumstances of the addressee, e.g., occupation, in
considering whether he or she is more or less likely to
respond with immediate violence. See, e.g., State v.
Robinson, 319 Mont. 82, 87, 82 P.3d 27 (2003) (declining
to apply heightened standard to police officers); State
v. Matthews, 111 A.3d 390, 401 n.12 (R.I. 2015) (same).
The rationale behind ignoring these characteristics of
the addressee is that such a standard would be inconsis-
tent with applying an objective standard contemplating
an average addressee. This position is flawed in sev-
eral respects.
First, these courts misapprehend the objective aspect
of the fighting words standard. The ‘‘ ‘average
addressee’ ’’ element ‘‘was designed to safeguard
against the suppression of speech which might only
provoke a particularly violent or sensitive listener’’
because ‘‘[a] test which turned upon the response of
the actual addressee would run the risk of impinging
upon the free speech rights of the speaker who could
then be silenced based upon the particular sensitivities
of each individual addressee.’’ People v. Prisinzano,
supra, 170 Misc. 2d 529. Accordingly, it is not inconsis-
tent with the application of an objective standard to
consider the entire factual context in which the words
were uttered because ‘‘[i]t is the tendency or likelihood
of the words to provoke violent reaction that is the
touchstone of the Chaplinsky test . . . .’’9 Lamar v.
Banks, supra, 684 F.2d 718; see also S. Gard, ‘‘Fighting
Words as Free Speech,’’ 58 Wash. U. L.Q. 531, 558 (1980)
(‘‘[I]t is certainly consistent with an objective [fighting
words] test to apply a more specific standard of ‘the
ordinary reasonable police officer’ in appropriate situa-
tions. Indeed, the adoption of a standard of the ordinary
reasonable professional has never been deemed incon-
sistent with an objective standard of liability.’’ [Foot-
note omitted.]); cf. State v. Krijger, supra, 313 Conn.
450 (describing ‘‘objective’’ standard for analyzing true
threats considering ‘‘their entire factual context, includ-
ing the surrounding events and reaction of the listeners’’
[internal quotation marks omitted]).
Second, it is precisely this consideration of the spe-
cific context in which the words were uttered and the
likelihood of actual violence, not an ‘‘undifferentiated
fear or apprehension of disturbance,’’ that is required by
the United States Supreme Court’s decisions following
Chaplinsky. (Internal quotation marks omitted.) Cohen
v. California, supra, 403 U.S. 23; see also Gooding v.
Wilson, supra, 405 U.S. 528 (declaring statute facially
overbroad because, as construed, it was applicable ‘‘to
utterances where there was no likelihood that the per-
son addressed would make an immediate violent
response’’). Because the fighting words exception is
concerned only with preventing the likelihood of actual
violence, an approach ignoring the circumstances of
the addressee is antithetical and simply unworkable.
For example, applying such an approach in this case
would require us to engage in the following legal fiction:
although Freeman was insulted on the basis of her
gender, appearance, and apparent suitability for her
position as a store manager, the fact finder would be
required to assess how some hypothetical ‘‘ordinary’’
addressee with no apparent gender, appearance, or pro-
fession would likely respond. See F. Kobel, ‘‘The Fight-
ing Words Doctrine—Is There a Clear and Present
Danger to the Standard?,’’ 84 Dick. L. Rev. 75, 94 (1979)
(describing average addressee standard, which empha-
sizes words themselves, as ‘‘an attractive one because
of its equitable overtones,’’ but nevertheless ‘‘inherently
faulty’’ because ‘‘[a]bsent from the standard is criteria
by which to judge what is average’’).
Finally, as alluded to previously in this opinion, the
fighting words exception is not concerned with creating
symmetrical free speech rights by way of establishing
a uniform set of words that are constitutionally pro-
scribed. See Cohen v. California, supra, 403 U.S. 22–23
(rejecting as ‘‘untenable’’ idea that ‘‘[s]tates, acting as
guardians of public morality, may properly remove [an]
offensive word from the public vocabulary’’). Rather,
because the fighting words exception is intended only
to prevent the likelihood of an actual violent response,
it is an unfortunate but necessary consequence that we
are required to differentiate between addressees who
are more or less likely to respond violently and speakers
who are more or less likely to elicit such a response.
See Conkle v. State, 677 So. 2d 1211, 1217 (Ala. Crim.
App. 1995) (‘‘[P]resumably, statements made to classes
of victims who may not be perceived as persons who
would likely respond with physical retaliation . . .
may seem to require a higher level of ‘low speech’ to
constitute ‘fighting words.’ However, this possible dis-
crimination as to victims is explainable in that the pur-
pose . . . is to ensure public safety and public order.’’);
A. Wertheimer, note, ‘‘The First Amendment Distinction
between Conduct and Content: A Conceptual Frame-
work for Understanding Fighting Words Jurispru-
dence,’’ 63 Fordham L. Rev. 793, 815–16 (1994) (applying
standard of reasonable person in position of actual
addressee ‘‘is consistent with the idea that words them-
selves are innocent until exploited in circumstances
where particular addressees are likely to retaliate’’);
note, ‘‘The Demise of the Chaplinsky Fighting Words
Doctrine: An Argument for Its Interment,’’ 106 Harv. L.
Rev. 1129, 1136 (1993) (‘‘[b]ecause the [Supreme] Court
is concerned with the likelihood that speech will actu-
ally produce violent consequences, it logically distin-
guishes between addressees who are more or less prone
to respond with violence’’).
Accordingly, a proper contextual analysis requires
consideration of the actual circumstances, as perceived
by both a reasonable speaker and addressee, to deter-
mine whether there was a likelihood of violent retalia-
tion. This necessarily includes the manner in which the
words were uttered, by whom and to whom the words
were uttered, and any other attendant circumstances
that were objectively apparent and bear on the question
of whether a violent response was likely. Indeed, one
matter on which both parties agree is that our inquiry
must focus on the perspective of an average store man-
ager in Freeman’s position. With this framework in
place to guide a proper, contextual analysis, we turn
to the issue in the present case.
In considering the defendant’s challenge to the suffi-
ciency of the evidence to support her conviction of
breach of the peace in the second degree in accordance
with her first amendment rights, we apply a two part
test. First, as reflected in the previous recitation of facts,
we construe the evidence in the light most favorable to
sustaining the verdict. See State v. Cook, 287 Conn. 237,
254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct.
464, 172 L. Ed. 2d 328 (2008). Second, we determine
whether the trier of fact could have concluded from
those facts and reasonable inferences drawn therefrom
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. See id. Accordingly,
to establish the defendant’s violation of § 53a-181 (a)
(5); see footnote 1 of this opinion; in light of its constitu-
tional gloss, the state was required to prove beyond a
reasonable doubt that the defendant’s words were likely
to provoke an imminent violent response from an aver-
age store manager in Freeman’s position. Cf. State v.
Krijger, supra, 313 Conn. 448 (‘‘[t]o establish the defen-
dant’s violation of [General Statutes (Rev. to 2007)]
§§ 53a-62 [a] [3] and 53a-181 [a] [3] on the basis of
his statements to [the town attorney], the state was
required to prove beyond a reasonable doubt that those
statements represented a true threat’’).
‘‘In cases where [the line between speech uncondi-
tionally guaranteed and speech which may be legiti-
mately regulated] must be drawn, the rule is that we
examine for ourselves the statements in issue and the
circumstances under which they were made to see’’ if
they are consistent with the first amendment. (Internal
quotation marks omitted.) State v. DeLoreto, 265 Conn.
145, 153, 827 A.2d 671 (2003); see also DiMartino v.
Richens, 263 Conn. 639, 661, 822 A.2d 205 (2003)
(‘‘inquiry into the protected status of . . . speech is
one of law, not fact’’ [internal quotation marks omit-
ted]). We undertake an independent examination of the
record as a whole to ensure ‘‘that the judgment does
not constitute a forbidden intrusion on the field of free
expression.’’ (Internal quotation marks omitted.) State
v. DeLoreto, supra, 153.
At the outset of that examination, we must acknowl-
edge that the words and phrases used by the defen-
dant—‘‘fat ugly bitch,’’ ‘‘cunt,’’ and ‘‘fuck you, you’re
not a manager’’—were extremely offensive and meant
to personally demean Freeman. The defendant invoked
one or more of the most vulgar terms known in our
lexicon to refer to Freeman’s gender. Nevertheless,
‘‘[t]he question in this case is not whether the defen-
dant’s words were reprehensible, which they clearly
were; or cruel, which they just as assuredly were; or
whether they were calculated to cause psychic harm,
which they unquestionably were; but whether they were
criminal.’’ (Emphasis in original.) State v. Krijger, 130
Conn. App. 470, 485, 24 A.3d 42 (2011) (Lavine, J.,
dissenting), rev’d, 313 Conn. 434, 97 A.3d 946 (2014)
(adopting Appellate Court dissent’s position). Uttering
a cruel or offensive word is not a crime unless it would
tend to provoke a reasonable person in the addressee’s
position to immediately retaliate with violence under
the circumstances. See People in the Interest of R.C.,
supra, 2016 WL 6803065, *6–7 (concluding that mere
utterance of ‘‘ ‘cocksucker,’ ’’ although vulgar and pro-
fane, did not constitute fighting words). Given the con-
text of the defendant’s remarks, we cannot conclude
that the insults were ‘‘akin to dropping a match into a
pool of gasoline.’’ State v. Tracy, supra, 200 Vt. 237.
Several factors bear on our conclusion that the state
did not prove beyond a reasonable doubt that Freeman
was likely to retaliate with violence. We begin with the
fact that the confrontation in the supermarket did not
happen in a vacuum; it was preceded by a telephone
call in which the defendant was belligerent and used
many of the ‘‘swear word[s]’’ that she would later say
to Freeman in person. After the defendant arrived at
the supermarket a few minutes later, Freeman correctly
surmised that she was the woman who had just called.
Consequently, when Freeman approached the defen-
dant to reiterate a message that she knew the defendant
did not want to hear, Freeman reasonably would have
been aware of the possibility that a similar barrage of
insults, however unwarranted, would be directed at her.
Freeman’s position of authority at the supermarket,
however, placed her in a role in which she had to
approach the defendant.
In addition, as the store manager on duty, Freeman
was charged with handling customer service matters.
The defendant’s angry words were an obvious expres-
sion of frustration at not being able to obtain services
to which she thought she was entitled. Store managers
are routinely confronted by disappointed, frustrated
customers who express themselves in angry terms,
although not always as crude as those used by the
defendant. People in authoritative positions of manage-
ment and control are expected to diffuse hostile situa-
tions, if not for the sake of the store’s relationship with
that particular customer, then for the sake of other
customers milling about the store. Indeed, as the man-
ager in charge of a large supermarket, Freeman would
be expected to model appropriate, responsive behavior,
aimed at de-escalating the situation, for her subordi-
nates, at least one of whom was observing the exchange.
Significantly, as a store manager, Freeman would
have had a degree of control over the premises where
the confrontation took place. An average store manager
would know as she approached the defendant that,
if the defendant became abusive, the manager could
demand that the defendant leave the premises, threaten
to have her arrested for trespassing if she failed to
comply, and make good on that threat if the defendant
still refused to leave. With such lawful self-help tools
at her disposal and the expectations attendant to her
position, it does not appear reasonably likely that Free-
man was at risk of losing control over the confrontation.
We recognize that a different conclusion might be
warranted if the defendant directed the same words at
Freeman after Freeman ended her work day and left
the supermarket, depending on the circumstances pre-
sented. Given the totality of the circumstances in the
present case, however, it would be unlikely for an on
duty store manager in Freeman’s position to respond
in kind to the defendant’s angry diatribe with similar
expletives. It would be considerably more unlikely for
a person in Freeman’s position, in the circumstances
presented, to respond with a physical act of violence.
Indeed, in keeping with the expectations attendant to
her position and the circumstances with which she was
confronted, Freeman did not respond with profanity,
much less with violence, toward the defendant. Instead,
she terminated the conversation before it could escalate
further with the simple words, ‘‘Have a good night.’’
Although the reaction of the addressee is not disposi-
tive; see Lamar v. Banks, supra, 684 F.2d 718–19; it is
probative of the likelihood of a violent reaction. See
Klen v. Loveland, supra, 661 F.3d 510 (‘‘[t]he reaction
of actual hearers of the words constitutes significant
probative evidence concerning whether the speech was
inherently likely to cause a violent reaction’’); Seattle
v. Camby, supra, 104 Wash. 2d 54 (‘‘the addressee’s reac-
tion or failure to react is not the sole criteria, but is a
factor to be considered in evaluating the actual situation
in which the words were spoken’’). There is no reason
to believe that Freeman’s reaction was uncharacteristic
of a reasonable professional in a like situation. There-
fore, on the basis of our independent review of the
record, we cannot conclude that an average store man-
ager in Freeman’s position would have responded to
the defendant’s remarks with imminent violence.
Nonetheless, the state contends that ‘‘courts in sister
states and in Connecticut have found comparable abu-
sive epithets to constitute ‘fighting words’ where they
have been directed at police officers who, because they
are ‘properly trained,’ ‘may reasonably be expected to
exercise a higher degree of restraint than the average
citizen,’ ’’ quoting this court’s decision in State v. Szym-
kiewicz, supra, 237 Conn. 620 n.12, as one such exam-
ple. We disagree that this case law is sufficiently
relevant or persuasive. We observe that all of the cases
cited were decided two or three decades ago, and there-
fore do not consider case law recognizing that public
sensitivities have been dulled to some extent by the
devolution of discourse.10 With regard to Szymkiewicz,
a case not involving words directed at a police officer,
although there are superficial factual similarities to the
present case in that the expletive fuck you was directed
at an employee of a Stop & Shop supermarket; id.,
615; that is where the similarities end. Significantly, the
majority in Szymkiewicz pointed to a ‘‘heated
exchange’’ that had ensued between the store detective
and the defendant after the former accused the latter
of shoplifting and to a threatening remark directed to
the store detective as part of the ‘‘cumulative’’ evidence
supporting the application of the fighting words excep-
tion. Id., 623. Thus, the majority’s conclusion in that
case is consistent with others that considered whether
the words at issue were preceded by a hostile exchange
or accompanied by aggressive behavior when determin-
ing the likelihood of a violent reaction. See State v.
James M., supra, 111 N.M. 476; Landrum v. Sarratt,
supra, 352 S.C. 143; In re S.J.N-K., supra, 647 N.W.2d
709. Indeed, precisely for these reasons, the defendant
in Szymkiewicz was convicted under a different subdi-
vision of the breach of the peace statute than the one
at issue in the present case; see State v. Szymkiewicz,
supra, 614; requiring the defendant to have engaged
‘‘in fighting or in violent, tumultuous or threatening
behavior . . . .’’ General Statutes § 53a-181 (a) (1).
Insofar as there is dictum in a footnote in Szymkie-
wicz suggesting that, in order for the heightened expec-
tation of restraint applicable to police officers to apply
to another type of addressee, the addressee must have
received the same level of training as that of a police
officer; see State v. Szymkiewicz, supra, 237 Conn.
620 n.12; we need not consider the propriety of that
conclusion. We do not rest our decision on the nature
of the training received by the average supermarket
manager; rather, we focus on the expectations atten-
dant to such positions under the particular circum-
stances of the present case. We observe that the court
in Szymkiewicz recognized that it did not have the
benefit of briefing on this issue, as the defendant had
made no such claim. See id. We further observe that
the court in Szymkiewicz relied on the actual training
afforded to the particular store detective, a focus that
appears to be in tension with the established objective
standard of the average listener in the addressee’s posi-
tion. Cf. In re Nickolas S., supra, 226 Ariz. 188 (consider-
ing how ordinary teacher would respond to insults from
student in classroom setting). Accordingly, Szymkie-
wicz does not dictate a contrary conclusion.
In sum, the natural reaction of an average person in
Freeman’s position who is confronted with a customer’s
profane outburst, unaccompanied by any threats, would
not be to strike her. We do not intend to suggest that
words directed at a store manager will never constitute
fighting words. Rather, we simply hold that under these
circumstances the defendant’s vulgar insults would not
be likely to provoke violent retaliation. Because the
defendant’s speech does not fall within the narrow cate-
gory of unprotected fighting words, her conviction of
breach of the peace in the second degree on the basis
of pure speech constitutes a violation of the first amend-
ment to the United States constitution.
The judgment is reversed and the case is remanded
with direction to render a judgment of acquittal.
In this opinion PALMER, ROBINSON and D’AURIA,
Js., concurred.
* This case was originally argued before a panel of this court consisting
of Chief Justice Rogers and Justices Palmer, Eveleigh, McDonald, Espinosa
and Robinson. Thereafter, Justice D’Auria was added to the panel and has
read the briefs and appendices, and listened to a recording of the oral
argument prior to participating in this decision.
1
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with intent to
cause inconvenience, annoyance or alarm, or recklessly creating the risk
thereof, such person . . . (5) in a public place, uses abusive . . . language
. . . .’’ The defendant does not contest the sufficiency of the evidence to
support her conviction under the statutory language, but only the sufficiency
of the evidence to establish that her speech constituted constitutionally
unprotected fighting words. Accordingly, we need not consider the statutory
language in connection with our review of the evidence.
2
Because we conclude there is insufficient evidence to sustain the defen-
dant’s conviction for breach of the peace in the second degree, we need
not reach her claim that the jury was improperly instructed on that charge.
3
In her testimony, Freeman spelled out this word.
4
The state also charged the defendant with two counts of threatening in
the second degree in violation of General Statutes § 53a-62 (a) (2) and (3)
for conduct that it alleged had occurred after the incident giving rise to
the present appeal. Specifically, the state alleged that after she left the
supermarket, the defendant telephoned a second time, told the employee
answering the telephone to ‘‘come outside,’’ and ‘‘that there was a gun
waiting for [her].’’ The jury found the defendant not guilty of one of the
threatening counts and was unable to reach a verdict on the other count.
The court declared a mistrial on the latter.
5
Although this court recently has explained that it is appropriate to con-
sider a state constitutional claim first ‘‘when the issue presented is one of
first impression under both the state and federal constitutions’’; State v.
Kono, 324 Conn. 80, 82 n.3, 152 A.3d 1 (2016); the issue in the present case
is not one of first impression under the federal constitution. Moreover,
because the established federal standard is clearly dispositive, to resolve
the case on this basis is in accord with jurisprudence under which ‘‘we
eschew unnecessarily deciding constitutional questions . . . .’’ (Citations
omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 560, 964
A.2d 1213 (2009). Finally, we note that the briefs of both parties examine
federal jurisprudence on this question. We therefore leave for another day
the question of whether the state constitution is more protective of speech
than the federal constitution with regard to fighting words.
6
G. Carlin, Class Clown (Little David Records 1972). We note that two
of those seven words were uttered by the defendant in the present case.
7
The defendant did not adduce evidence at trial to establish the extent
to which her physical impairment was objectively apparent to Freeman,
other than the fact that she carried a cane. In light of special legal protections
and societal conventions dictating that violent behavior is more reprehensi-
ble when committed against a physically disabled person than against a
person without a physical impairment; see, e.g., General Statutes § 53a-59a
(a) (1) (creating separate offense for assault in first degree against physically
disabled person); a question arises whether the possibility that an average
person in Freeman’s position would strike a person with such impairments
for leveling verbal insults is even more remote than if the person did not
have such a disability. Given our conclusion that a person in Freeman’s
position would not be likely to respond with violence to an ordinary customer
under the circumstances, however, we need not express an opinion on
this question.
8
In Lewis, Justice Powell in his concurrence also observed that the Louisi-
ana statute under which the defendant had been convicted ‘‘confer[red] on
police a virtually unrestrained power to arrest and charge persons with a
violation’’ because for the majority of arrests, which occur in one-on-one
situations, ‘‘[a]ll that is required for conviction is that the court accept the
testimony of the officer that obscene or opprobrious language had been
used toward him while in performance of his duties.’’ Lewis v. New Orleans,
supra, 415 U.S. 135. ‘‘The opportunity for abuse’’ was thus ‘‘self-evident.’’
Id., 136 (Powell, J., concurring).
Thereafter, the Supreme Court relied on this language in concluding that
a Houston, Texas ordinance prohibiting speech that ‘‘in any manner . . .
interrupt[s]’’ a police officer was substantially overbroad. (Internal quotation
marks omitted.) Houston v. Hill, 482 U.S. 451, 463–65, 467, 107 S. Ct. 2502,
96 L. Ed. 2d 398 (1987). The court also noted that ‘‘[t]he freedom of individuals
verbally to oppose or challenge police action without thereby risking arrest
is one of the principal characteristics by which we distinguish a free nation
from a police state’’; id., 462–63; but that such freedom could be restricted
when the speech constitutes fighting words. See id., 464 n.12.
9
Consideration of only those objectively discernible traits of the speaker
and the addressee ‘‘is consistent with the degree of subjectivity that the
[Supreme] Court has used in its police officer cases, in order to avoid some
of the pitfalls of requiring the speaker or fact-finder to ‘calculat[e] . . . the
boiling point of a particular person’ in each case. Ashton v. Kentucky, 384
U.S. 195, 200 [86 S. Ct. 1407, 16 L. Ed. 2d 469] (1966). By specifying only
limited and obvious traits, such as the fact that the addressee is a police
officer—and the same could be said of the fact that the addressee is a
woman or a disabled elderly man—the [c]ourt refines its test of the likelihood
that violence will ensue without requiring difficult litigation of the state of
mind of both the speaker and addressee.’’ Note, ‘‘The Demise of the Chaplin-
sky Fighting Words Doctrine: An Argument for Its Interment,’’ 106 Harv. L.
Rev. 1129, 1136–37 n.58 (1993).
10
The state cites cases from other jurisdictions in which convictions were
sustained when the defendant had shouted ‘‘fuck you’’ to a police officer
or called an officer a ‘‘fuckhead’’ or ‘‘motherfucker.’’ Those cases are either
distinguishable on the facts and procedural posture; see, e.g., State v. Wood,
112 Ohio App. 3d 621, 628–29, 679 N.E.2d 735 (1996) (state was not required
to establish fighting words beyond reasonable doubt because defendant
pleaded no contest; prosecutor recited on record that defendant continued
using loud and abusive language for several minutes despite several requests
to stop); or because the courts did not apply a heightened standard despite
the fact that the words were directed at police officers. See, e.g., C.J.R. v.
State, 429 So. 2d 753, 754 (Fla. App.), cert. denied, 440 So. 2d 351 (Fla.
1983); State v. Groves, 219 Neb. 382, 386, 363 N.W.2d 507 (1985).