State v. Liebenguth ( 2021 )

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STATE v. LIEBENGUTH—SECOND CONCURRENCE
ECKER, J., concurring. I join the majority opinion
because we are bound by United States Supreme Court
precedent to apply the fighting words doctrine as cur-
rently formulated, and, in my view, the majority reaches
the correct result applying that doctrine to the facts
of the present case. I write separately lest my silence
otherwise be misunderstood as an endorsement of this
deeply flawed doctrine.1 I also wish to draw attention
to the looming question that comes into increasingly
sharp focus with every decision issued by this court on
the topic. That question is whether there may be a more
sensible first amendment framework that would better
serve to justify the outcome reached today in a manner
that fully honors our government’s commitment to free-
dom of speech without, in the process, sacrificing our
ability to regulate a narrow category of malicious hate
speech—which, for present purposes, may be defined
as speech communicated publicly to an addressee, in
a face-to-face encounter, using words or images that
demean the addressee on the basis of his or her race,
color, national origin, ethnicity, religion, gender, sexual
orientation, disability, or like trait, under circumstances
indicating that the speaker intends thereby to cause the
addressee severe psychic pain. I do not know when the
United States Supreme Court will acknowledge that the
current doctrine is untenable or whether it will consider
replacing it with a reformulated doctrine focused on
the government’s interest in regulating hate speech.
Nor do I know whether such a hate speech doctrine
ultimately would pass muster under the first amend-
ment. Sooner or later, however, I believe that it will
become necessary to either shift doctrinal paradigms
or admit failure because it has become evident that the
existing fighting words doctrine does not provide a
sound or viable means to draw constitutional lines in
this area.
I
I agree wholeheartedly with my colleagues that the
words and sentiments expressed by the defendant,
David B. Liebenguth, were vile, repugnant and morally
reprehensible. He selected his words for their cruelty
and used them as a weapon to inflict psychic wounds as
painful, or more so, than physical ones. The defendant
crossed a particular line that should never be crossed
by anyone in America and then crossed that line again
by engaging in after-the-fact conduct indicating a com-
plete lack of contrition. See footnote 4 of the majority
opinion. The views expressed in this concurring opinion
should not be construed in any way to excuse, defend,
or otherwise condone the defendant’s words or accom-
panying conduct.
This brings me directly to the point. I believe that
we need not scratch too deeply beneath the surface to
see that the defendant is being punished criminally for
the content of his speech. It is the reprehensible content
of the speech that propels our desire to prohibit it.
Indeed, one very particular meaning intended by the
defendant’s language is behind this prosecution. The
criminality of the defendant’s speech does not inhere
in his use of the word ‘‘nigger’’ itself because that word
can mean very different things depending on the iden-
tity, race, affiliation, and cultural milieu of the speaker
and the addressee. See R. Kennedy, ‘‘The David C. Baum
Lecture: ‘Nigger!’ as a Problem in the Law,’’ 2001 U. Ill.
L. Rev. 935, 937.2 The criminality of the defendant’s
speech derives from his use of the word as a term
of oppression, contempt, and debasement rather than
affection or brotherhood.
Therein lies the difficulty under the first amendment,
because the quintessential teaching of the constitutional
prohibition against any law abridging the freedom of
speech is that the government cannot proscribe speech
on the basis of content. ‘‘[A]bove all else,’’ Justice Thur-
good Marshall famously observed, ‘‘the [f]irst [a]mend-
ment means that government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content.’’ Police Dept. v. Mosley, 408 U.S.
92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972); accord
Brown v. Entertainment Merchants Assn., 564 U.S.
786, 790–91, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011);
Ashcroft v. American Civil Liberties Union, 535 U.S.
564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002); see
Reed v. Gilbert, 576 U.S. 155, 163, 135 S. Ct. 2218, 192
L. Ed. 2d 236 (2015) (‘‘[c]ontent-based laws—those that
target speech based on its communicative content—
are presumptively unconstitutional and may be justified
only if the government proves that they are narrowly
tailored to serve compelling state interests’’); R. A. V.
v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L.
Ed. 2d 305 (1992) (‘‘[t]he [f]irst [a]mendment generally
prevents [the] government from proscribing speech
. . . or even expressive conduct . . . because of dis-
approval of the ideas expressed’’ (citations omitted));
see also footnote 8 of this opinion. Speech that offends,
provokes, or disrupts cannot be censored by the govern-
ment merely because it roils calm waters or contravenes
our collective sense of civilized discourse. Although the
content of such speech at times may be extremely diffi-
cult to tolerate, and its value may be impossible to dis-
cern, we must never forget that ‘‘a function of free
speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to
anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance
of an idea. That is why freedom of speech, though not
absolute . . . is nevertheless protected against censor-
ship or punishment, unless shown likely to produce a
clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance,
or unrest. . . . There is no room under our [c]onstitu-
tion for a more restrictive view. For the alternative
would lead to standardization of ideas either by legisla-
tures, courts, or dominant political or community
groups.’’ (Citations omitted.) Terminiello v. Chicago,
337 U.S. 1, 4–5, 69 S. Ct. 894, 93 L. Ed. 1131 (1949).
The fighting words doctrine is among the very few
exceptions to this rule. ‘‘[T]he [f]irst [a]mendment has
‘permitted restrictions upon the content of speech in a
few limited areas’ ’’ consisting of ‘‘ ‘historic and tradi-
tional categories long familiar to the bar’ . . . includ-
ing obscenity . . . defamation . . . fraud . . . incite-
ment . . . and speech integral to criminal conduct
. . . .’’ (Citations omitted.) United States v. Stevens,
559 U.S. 460, 468, 130 S. Ct. 1577, 176 L. Ed. 2d 435(2010); see also R. A. V. v. St. Paul, supra, 505 U.S. 383,
386 (listing exceptions, including fighting words). The
fighting words doctrine, in modified form, appears to
remain good law despite widespread criticism and a
distinctly underwhelming track record in its place of
origin, the United States Supreme Court.3 See State v.
Parnoff, 329 Conn. 386, 411, 186 A.3d 640 (2018) (Kahn,
J., concurring in the judgment) (‘‘[t]he continuing vital-
ity of the fighting words exception is dubious and the
successful invocation of that exception is so rare that
it is practically extinct’’).
I understand that we must adhere to the fighting
words doctrine until the United States Supreme Court
says otherwise. But, although the majority opinion does
an admirable job fashioning a silk purse out of this
particular sow’s ear, I believe that we are better off in
the end expressing our concerns openly and displaying
a more determined preference for avoiding further
entanglement with this untenable doctrine.4 In my view,
this court’s own engagement with the fighting words
doctrine to date has resulted in a series of decisions
embedding us more deeply in the doctrinal quicksand
each time we undertake the futile task of drawing con-
stitutional distinctions between one person’s lyric and
another’s vulgarity.5 I fear that the doctrine we have
embraced disserves us more than we acknowledge by
inducing us to believe, or act as if we believe, that we
are able to discern a constitutional line distinguishing
one angry person screaming a race-based epithet at a
municipal parking enforcement officer from another
angry person screaming a gender-based epithet at a
store manager. See State v. Baccala, 326 Conn. 232,
235–36, 256, 163 A.3d 1 (calling assistant manager of
grocery store ‘‘a ‘fat ugly bitch’ and a ‘cunt’ ’’ did not
constitute fighting words and, therefore, warranted con-
stitutional protection under first amendment), cert.
denied, U.S. , 138 S. Ct. 510, 199 L. Ed. 2d
408 (2017).
II
The profound and intractable problems inherent in
the fighting words doctrine become evident the moment
we examine the legal standard that our court uses to
determine whether a defendant’s speech falls within its
scope. The majority correctly describes the analysis.
Fighting words is speech that is ‘‘likely to provoke a
violent response under the circumstances in which [the
words] were uttered . . . .’’ Id., 234. The doctrine pur-
ports not to be concerned with the content of the speech
per se but, rather, the ‘‘likelihood of violent retaliation.’’
Id., 240. Thus, unlike the situation described by George
Carlin in his classic comedic monologue about govern-
ment censorship of obscene language, ‘‘Seven Words
You Can Never Say on Television,’’6 there is no predeter-
mined list of proscribed fighting words or phrases; con-
text is everything. As the majority aptly observes, ‘‘there
are no per se fighting words because words that are
likely to provoke an immediate, violent response when
uttered under one set of circumstances may not be
likely to trigger such a response when spoken in the
context of a different factual scenario.’’ In determining
whether the speech in any particular circumstance is
constitutionally protected, the person performing the
constitutional line drawing must consider ‘‘a host of
factors,’’ including not only the words themselves, but
‘‘the manner and circumstances in which the words
were spoken’’ and ‘‘those personal attributes of the
speaker and addressee that are reasonably apparent
. . . .’’ State v. Baccala, supra, 326 Conn. 240–41; see
id., 242–43 (‘‘[c]ourts have . . . considered the age,
gender, race, and status of the speaker’’ and ‘‘also have
taken into account the addressee’s age, gender, and
race’’). This intensely contextualized and fact specific
inquiry strives to remain ‘‘objective’’ in nature. Id., 247.
For this reason, the issue is not how the actual
addressee in fact responds to the speech, but the likely
response of the average person in the addressee’s
shoes. Id.; see Chaplinsky v. New Hampshire, 315 U.S.
568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) (‘‘the test
[for determining which words are fighting words] is
what men of common intelligence would understand
would be words likely to cause an average addressee
to fight’’ (internal quotation marks omitted)).
As this description illustrates, the constitutional justi-
fication for the fighting words doctrine, as it operates
today, does not rest on the state’s interest in protecting
the addressee from the emotional and psychic harm
caused by words ‘‘which by their very utterance inflict
injury . . . .’’7 Chaplinsky v. New Hampshire, supra,315 U.S. 572. Instead, the current fighting words doc-
trine purports to regulate speech on the basis of its
incitement effect, i.e., the likelihood of inciting the
addressee to immediate violence against the speaker.
The ascendancy of the incitement rationale as the sole
constitutionally legitimate justification for the fighting
words doctrine avoids the appearance, discomfiting to
some, that the state is censoring speech due solely to
the emotional impact that the content of that speech
has on the addressee.8 The allure of the incitement
analysis, in other words, lies in its insistence that it is
entirely unconcerned with the content of the speech
under review and regulates solely on the basis of the
‘‘nonspeech’’ element of the communication. See R. A. V.
v. St. Paul, supra, 505 U.S. 386.
Serious problems arise, however, when we use the
fighting words exception to regulate offensive speech
under the rubric of the incitement rationale. Fighting
words is an unusual subcategory of incitement
speech—the speaker and listener are adversaries rather
than coconspirators, and the speaker ordinarily is not
advocating violence but, rather, speaking words in a
manner likely to stimulate the listener’s anger to the
boiling point.9 The fighting words doctrine permits the
government to prohibit speech that the government
deems likely to incite a physical attack by the addressee
on the speaker himself. Put another way, this category
of speech loses its constitutional protection because it
is deemed likely to ‘‘cause’’ another person to punch
the speaker in the nose (or worse)—a distinctly coun-
terintuitive justification for withdrawing constitutional
protection from the speaker. See Feiner v. New York,
340 U.S. 315, 327 n.9, 71 S. Ct. 303, 95 L. Ed. 295 (1951)
(Black, J., dissenting) (‘‘[T]he threat of one person to
assault a speaker does not justify suppression of the
speech. There are obvious available alternative meth-
ods of preserving public order. One of these is to arrest
the person who threatens an assault.’’); B. Caine, ‘‘The
Trouble with ‘Fighting Words’: Chaplinsky v. New
Hampshire Is a Threat to First Amendment Values and
Should Be Overruled,’’ 88 Marq. L. Rev. 441, 507 (2004)
(‘‘[p]unishing the speaker for the violence committed
against the speaker is totally at odds with [first amend-
ment principles]’’); R. Kennedy, supra, 2001 U. Ill. L.
Rev. 942 (‘‘Rather than insisting that the target of the
speech control himself, the doctrine tells the offensive
speaker to shut up. This is odd and objectionable.’’).
I wish to focus on two of the most fundamental prob-
lems that infect the doctrine as it has been applied
in Connecticut. First, as Justice Kahn observes in her
concurring opinion, one of the foremost flaws inherent
in the fighting words doctrine is that its application
turns on the adjudicator’s assessment of the addressee’s
physical ability and psychological or emotional procliv-
ity to respond with violence to the speaker’s insulting
words. The majority’s description of the required legal
analysis frankly acknowledges its focus on the speak-
er’s and the addressee’s respective age, race, gender,
physical condition, and similar characteristics. The doc-
trine thus confers or withdraws constitutional protec-
tion depending on the demographic characteristics of
the relevant individuals; vicious and vile words spoken
by ‘‘a child, a frail elderly person, or a seriously disabled
person’’ may be protected under the first amendment
because ‘‘social conventions . . . [or] special legal pro-
tections . . . could temper the likelihood of a violent
response . . . .’’ State v. Baccala, supra, 326 Conn. 242.
And most important, as the majority, quoting State v.
Baccala, supra, 249, acknowledges, ‘‘ ‘an unfortunate
but necessary’ ’’ part of the constitutional analysis is
an assessment of the addressee’s physical abilities and
aggressive tendencies to determine whether the
addressee is ‘‘ ‘likely to respond violently . . . .’ ’’
‘‘Unfortunate’’ is a vast understatement. The fighting
words doctrine invites—even requires—stereotyping
on the basis of age, gender, race, and whatever other
demographic characteristics the adjudicator explicitly
or implicitly relies on to decide whether a person is
likely to respond to offensive language with immediate
violence. In my view, a bright red light should flash
when our first amendment doctrine leads us to con-
clude, for example, that an outrageous slur directed at
a physically disabled elderly woman is constitutionally
protected but the identical words addressed to a physi-
cally fit man walking down the sidewalk will subject
the speaker to criminal prosecution. It is no wonder
that the fighting words doctrine is considered by many
critics to represent a ‘‘hopeless anachronism that mim-
ics the macho code of barroom brawls.’’ K. Sullivan,
‘‘The First Amendment Wars,’’ New Republic, Septem-
ber 28, 1992, p. 40; id. (observing that fighting words
doctrine ‘‘give[s] more license to insult Mother Teresa
than Sean Penn just because she is not likely to throw
a punch’’); see A. Carr, ‘‘Anger, Gender, Race, and the
Limits of Free Speech Protection,’’ 31 Hastings Wom-
en’s L.J. 211, 227 (2020) (describing Chaplinsky as
reflecting ‘‘a gendered . . . perspective’’ enshrining ‘‘a
‘hypermasculine’ exemption from presumed ‘gentle-
manly’ expectations of conduct among men’’); S. Gard,
‘‘Fighting Words as Free Speech,’’ 58 Wash. U. L.Q.
531, 536 (1980) (opining that fighting words doctrine
represents ‘‘a quaint remnant of an earlier morality that
has no place in a democratic society’’); K. Greenawalt,
‘‘Insults and Epithets: Are They Protected Speech?,’’ 42
Rutgers L. Rev. 287, 293 (1990) (‘‘Many speakers who
want to humiliate and wound would also welcome a
fight. But in many of the cruelest instances in which
abusive words are used, no fight is contemplated: white
adults shout epithets at black children walking to an
integrated school; strong men insult much smaller
women.’’); R. Kennedy, supra, 2001 U. Ill. L. Rev. 943(fighting words doctrine ‘‘gives more leeway to insult
a nun than a prizefighter because she is less likely to
retaliate’’); W. Reilly, ‘‘Fighting the Fighting Words Stan-
dard: A Call for Its Destruction,’’ 52 Rutgers L. Rev.
947, 956 (2000) (observing that fighting words doctrine
permits ‘‘speech to be [regulated] . . . when directed
at someone who would react violently to a verbal
assault, but [prohibits regulation] . . . when directed
at someone with a more pacific bent’’).10
The doctrine in no way avoids this analytical abyss
by focusing its inquiry on the personal characteristics
of the ‘‘average’’ addressee rather than the actual lis-
tener. To the contrary, styling the test in faux objective
garb only makes things worse because there is no empir-
ical basis for such an inquiry; no such average person
exists, no metric for assessment exists, and, to the best
of my knowledge, nothing that we would consider valid
social science is available to assist the decision maker.
The first amendment becomes a Rorschach blot onto
which the adjudicating authority (and, before it reaches
the adjudicator, the arresting officer and state prosecu-
tor) projects his or her own stereotypes, preconcep-
tions, biases and fantasies about race, ethnicity, sexual
orientation, gender, religion, and other ‘‘identity’’ char-
acteristics of the addressee to decide whether a person
with those demographics probably would react with
immediate violence.11 This is especially the case when
it comes to the predominant twenty-first century brand
of insults, epithets, and slurs, which so often target the
group identity of the addressee. The fighting words
doctrine in its current form confers or withdraws first
amendment protection on the basis of nothing more
substantial than our own stereotypes and biases regard-
ing those very demographic features. This is ‘‘I know
it when I see it’’ run amuck.12
The sharp contrast between this court’s holdings in
Baccala and the present case demonstrate the point.
The majority does its best to distinguish Baccala on
some basis other than gender and race, but the stark
reality of differential treatment remains.13 In my view,
the various distinctions drawn between that case and
the present case, though unquestionably reflecting the
good-faith assessment of the subscribing justices, rein-
force rather than remove valid concerns regarding the
arbitrary, subjective, and gendered nature of the fight-
ing words doctrine. An observer would be excused for
thinking that these outcomes reflect, and may tend to
perpetuate, nothing more substantial than our deeply
ingrained stereotypes regarding the traditional gender
traits of the ‘‘average’’ woman, at least the ‘‘average’’
white woman. See footnote 11 of this opinion.14
The potential for discriminatory enforcement, or at
the very least the perception that a ‘‘realistic possibility
that official suppression of ideas is afoot,’’ is anathema
to our most fundamental first amendment values. R. A. V.
v. St. Paul, supra, 505 U.S. 390. In the hands of even the
most responsible police officers, prosecutors, judges
and juries, this legal standard is sure to produce incon-
gruous and inexplicable results, even if all partici-
pants—including the speaker and the addressee—share
a relatively homogenous set of cultural norms and
expectations. Under the auspices of less enlightened
administrating authorities, the doctrine, in my view,
‘‘contains an obvious invitation to discriminatory
enforcement . . . .’’ (Internal quotation marks omit-
ted.) Houston v. Hill, 482 U.S. 451, 465 n.15, 107 S.
Ct. 2502, 96 L. Ed. 2d 398 (1987). The wide degree of
subjectivity necessitated by the legal standard ‘‘fur-
nishes a convenient tool for ‘harsh and discriminatory
enforcement by local prosecuting officials, against par-
ticular groups deemed to merit their displeasure’ ’’;
Papachristou v. Jacksonville, 405 U.S. 156, 170, 92 S.
Ct. 839, 31 L. Ed. 2d 110 (1972), quoting Thornhill v.
Alabama, 310 U.S. 88, 97–98, 60 S. Ct. 736, 84 L. Ed.
1093 (1940); and ‘‘confers on [the] police a virtually
unrestrained power to arrest and charge persons with
a violation.’’ Lewis v. New Orleans, 415 U.S. 130, 135,
94 S. Ct. 970, 39 L. Ed. 2d 214 (1974) (Powell, J., concur-
ring in the result).
This brings me to the second fundamental problem
with the fighting words doctrine, which is that such an
intensely contextualized, fact specific, and inherently
subjective analysis in the area of free speech creates
major constitutional concerns under due process
vagueness principles. The underlying vice addressed by
the void for vagueness doctrine is basic to the rule
of law: ‘‘As generally stated, the [void for vagueness]
doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discrimi-
natory enforcement. . . . Although the doctrine
focuses both on actual notice to citizens and arbitrary
enforcement, [the court has] recognized recently that
the more important aspect of the vagueness doctrine
‘is not actual notice, but the other principal element of
the doctrine—the requirement that a legislature estab-
lish minimal guidelines to govern law enforcement.’
. . . Where the legislature fails to provide such minimal
guidelines, a criminal statute may permit ‘a standardless
sweep [that] allows policemen, prosecutors, and juries
to pursue their personal predilections.’ ’’ (Citations
omitted.) Kolender v. Lawson, 461 U.S. 352, 357–58, 103
S. Ct. 1855, 75 L. Ed. 2d 903 (1983); see also Grayned
v. Rockford, 408 U.S. 104, 108–109, 92 S. Ct. 2294, 33 L.
Ed. 2d 222 (1972) (‘‘It is a basic principle of due process
that an enactment is void for vagueness if its prohibi-
tions are not clearly defined. Vague laws offend several
important values. First, because we assume that man
is free to steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Second,
if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for
those who apply them. A vague law impermissibly dele-
gates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discrimina-
tory application. Third, but related, [when] a vague stat-
ute abut[s] upon sensitive areas of basic [f]irst [a]mend-
ment freedoms, it operates to inhibit the exercise of
[those] freedoms. Uncertain meanings inevitably lead
citizens to steer far wider of the unlawful zone . . .
than if the boundaries of the forbidden areas were
clearly marked.’’ (Footnotes omitted; internal quotation
marks omitted.)).
The defendant in the present case has not challenged
General Statutes § 53a-181 (a) (5) on vagueness grounds,
and, accordingly, it is not necessary or appropriate at
this time to decide whether the statute is saved by this
court’s narrowing construction, which limits its cover-
age to fighting words as we have defined that term in
the prescribed analysis.15 In my opinion, our recent deci-
sions, including the decision issued today, have not
made that future task any easier.
To summarize, the facts of the present case obscure
the mischief inherent in the fighting words doctrine, as
applied by this court. I feel confident that every judge
in Connecticut would agree without reservation that
the particular words spoken by the defendant occupy
a singular category of offensive content as a result of
our country’s history. They are unique in their brutality.
I therefore agree fully with the view expressed by Judge
Devlin that ‘‘angrily calling an African-American man a
‘fucking [nigger]’ after taunting him with references to
a recent police shooting of a young African-American
man by a white police officer’’ must fall within the scope
of the fighting words doctrine. State v. Liebenguth, 181
Conn. App. 37, 68, 186 A.3d 39 (2018) (Devlin, J., concur-
ring in part and dissenting in part). But, for the reasons
set forth in this concurring opinion, I also believe that
the fighting words doctrine does not provide a sensible
way to determine the circumstances under which the
government may prosecute the utterance of such vile
and repugnant speech.
III
This court’s own recent experience applying the fight-
ing words doctrine, as well as the many similar cases
adjudicated by state courts around the country, power-
fully illustrates why the United States Supreme Court
should consider fashioning a more defensible and
administrable first amendment framework for deciding
when the government may criminalize the kind of hate
speech uttered by the defendant in the present case.
To best serve its purpose, the reformulated doctrine
should directly confront the fundamental constitutional
issue underlying many of these cases, which is whether
and under what circumstances the first amendment
permits the government to protect its citizenry from
the kind of psychic and emotional harm that results
when a speaker with malicious intent subjects another
person to outrageously degrading slurs in a personal,
face-to-face encounter. I cannot predict the outcome
of such a doctrinal reexamination, but, in my view, it
would benefit us all if the Supreme Court undertakes
the challenge before too long. Our current doctrine,
operating by indirection and proxy through a hypotheti-
cal, stereotype-driven assessment of the likelihood that
the words will incite violence, is as unworthy as it
is unworkable, and every new case decided under its
purview creates additional cause for concern.
In the meantime, I agree with the majority that, under
our current first amendment case law, if anything is
fighting words, then the words spoken by this defendant
under these factual circumstances fit the bill. I concur
in the majority opinion for this reason.
1
As will become clear, my concerns share a great deal in common with
those expressed by Justice Kahn in her incisive concurring opinion.
2
Professor Randall L. Kennedy, the author of the acclaimed 2002 book
entitled ‘‘Nigger: The Strange Career of a Troublesome Word,’’ writes with
great learning, sensitivity and sophistication on the subject. He explains the
‘‘remarkably protean’’ nature of the word: ‘‘It can mean many things. . . .
A weapon of racist oppression, ‘nigger’ can also be a weapon of antiracist
resistance as in Dick Gregory’s autobiography entitled Nigger, or H. Rap
Brown’s polemic Die Nigger Die! An expression of deadening contempt, use
of the N-word can also be an assertion of enlivened wit as in Richard
Pryor’s trenchant album of stand up comedy That Nigger’s Crazy. A term
of belittlement, ‘nigger’ can also be a term of respect as in ‘James Brown
is sho nuff nigger.’ . . . A term of hostility, nigger can also be a term of
endearment as in ‘this is my main nigger’—i.e., my best friend. . . . It might
just be, as [the journalist Jarvis Deberry] writes, ‘the most versatile and most
widely applied intensifier in the English language.’ ’’ (Footnotes omitted.)
R. Kennedy, supra, 2001 U. Ill. L. Rev. 937; see also A. Perdue & G. Parks,
‘‘The Nth Decree: Examining Intraracial Use of the N-Word in Employment
Discrimination Cases,’’ 64 DePaul L. Rev. 65, 66 (2014) (‘‘[w]hile some mem-
bers of the black community . . . publicly embrace [the] use of the N-word
by and among blacks as a term of endearment, others . . . still view it
exclusively as a tool of racial oppression’’). The indomitable Charles Barkley
has revealed the politically subversive undercurrent that accompanies some
uses of the word: ‘‘I use the N-word. I’m going to continue to use the N-
word . . . . [W]hat I do with my black friends is not up to white America
. . . .’’ (Internal quotation marks omitted.) A. Perdue & G. Parks, supra, 65–
66.
3
Questions arise about the continued vitality of the fighting words doctrine
because the United States Supreme Court has not upheld a single criminal
conviction under the doctrine since Chaplinsky was decided almost eighty
years ago. Note, ‘‘The Demise of the Chaplinsky Fighting Words Doctrine:
An Argument for Its Interment,’’ 106 Harv. L. Rev. 1129, 1129 (1993). There
is no doubt that the doctrine’s scope has been narrowed by a series of
decisions including, but not by any means limited to, Cohen v. California,
403 U.S. 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (limiting fighting words
to personally abusive epithets spoken in direct and personal confrontation),
Lewis v. New Orleans, 415 U.S. 130, 135, 94 S. Ct. 970, 39 L. Ed. 2d 214(1974) (Powell, J., concurring in the result) (indicating that first amendment
protection is broader when addressee is police officer, who ‘‘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)), and R. A. V. v. St. Paul, supra, 505 U.S. 386,
391 (recognizing that fighting words are not devoid of expressive value,
describing fighting words doctrine as regulation of ‘‘ ‘nonspeech’ element
of communication,’’ and holding that statute prohibiting particular fighting
words was unconstitutional because it discriminated on basis of viewpoint
of speaker). See, e.g., W. Nevin, ‘‘ ‘Fighting Slurs’: Contemporary Fighting
Words and the Question of Criminally Punishable Racial Epithets,’’ 14 First
Amendment L. Rev. 127, 133–38 (2015) (reviewing post-Chaplinsky cases
limiting fighting words doctrine); T. Place, ‘‘Offensive Speech and the Penn-
sylvania Disorderly Conduct Statute,’’ 12 Temp. Pol. & Civ. Rts. L. Rev. 47,
51–59 (2002) (same); R. Smolla, ‘‘Words ‘Which By Their Very Utterance
Inflict Injury’: The Evolving Treatment of Inherently Dangerous Speech in
Free Speech Law and Theory,’’ 36 Pepp. L. Rev. 317, 350 (2009) (noting that
‘‘the entire mainstream body of modern [f]irst [a]mendment law . . . has
dramatically tightened the rules of immediacy, intent, and likelihood of harm
required to justify restrictions on speech on the theory the speech will lead
to violence’’ and suggesting that ‘‘the ‘inflict[s] injury’ prong of Chaplinksy’’
is no longer operative and what remains is ‘‘that part of Chaplinksy linked
to genuine ‘fighting words’ and the maintenance of physical (as opposed to
moral) order’’). I nonetheless agree with the majority and Justice Kahn that
the fighting words exception to the first amendment has not been overruled
and remains binding on this court.
4
I do not break any new ground in pointing out these defects. See, e.g.,
B. Caine, ‘‘The Trouble With ‘Fighting Words’: Chaplinsky v. New Hampshire
Is a Threat to First Amendment Values and Should Be Overruled,’’ 88 Marq.
L. Rev. 441, 444–45 n.6 (2004) (‘‘While I agree with both scholars and others
that Chaplinsky ought to be overruled, I must note that the [United States]
Supreme Court has paid little attention to their plea. . . . [Chaplinsky] is
so deeply flawed that it cannot stand, and . . . [it] is an intolerable blot
on free speech jurisprudence.’’); S. Gard, ‘‘Fighting Words as Free Speech,’’
58 Wash. U. L.Q. 531, 536 (1980) (‘‘the fighting words doctrine is nothing
more than a quaint remnant of an earlier morality that has no place in a
democratic society dedicated to the principle of free expression’’); R. O’Neil,
‘‘Hate Speech, Fighting Words, and Beyond—Why American Law Is Unique,’’
76 Alb. L. Rev. 467, 471–72 (2012–2013) (‘‘[The] dismissive . . . view of
expression [in Chaplinsky] that was both unquestionably offensive and
provocative now seems not only archaic but also wholly illogical. . . . Sev-
enty years later, Chaplinsky remains a persistent source of constitutional
confusion. It might have been mercifully overruled long since, but that never
happened.’’ (Footnotes omitted.)); W. Reilly, ‘‘Fighting the Fighting Words
Standard: A Call for Its Destruction,’’ 52 Rutgers L. Rev. 947, 948 (2000)
(‘‘The [fighting words doctrine] is discriminatory because its application
depends on assumptions about how likely a listener is to respond violently
to speech. This approach invites judges or juries to determine whether
speech is protected by the [f]irst [a]mendment based on their own prejudices
about the listener.’’); M. Mannheimer, Note, ‘‘The Fighting Words Doctrine,’’
93 Colum. L. Rev. 1527, 1558, 1568–71 (1993) (arguing for modification of
fighting words doctrine to add scienter requirement); Note, ‘‘The Demise
of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment,’’
106 Harv. L. Rev. 1129, 1141 (1993) (‘‘Overruling Chaplinsky would eliminate
a doctrine that accommodates the undesirable ‘male’ tendency to come to
blows. More [important], eliminating the ‘fighting words’ doctrine would
eradicate a tool that governmental officials may use and have used to harass
minority groups and to suppress dissident speech.’’).
5
See Cohen v. California, 403 U.S. 15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284(1971) (recognizing that, under fighting words doctrine, ‘‘it is . . . often
true that one man’s vulgarity is another’s lyric’’).
6
G. Carlin, Class Clown (Little David Records 1972).
7
Chaplinsky defined fighting words as ‘‘those which by their very utter-
ance inflict injury or tend to incite an immediate breach of the peace.’’
Chaplinsky v. New Hampshire, supra, 315 U.S. 572. The two parts of this
definition have come to be known as the ‘‘inflicts injury’’ prong and the
‘‘breach of peace’’ or ‘‘incitement’’ prong. It is debatable whether the ‘‘inflicts
injury’’ prong was ever anything more than dictum. See Note, ‘‘The Demise
of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment,’’
106 Harv. L. Rev. 1129, 1129 (1993) (noting that ‘‘the prong of Chaplinsky
that exempted words ‘which by their very utterance inflict injury’—dictum
in that opinion—has never been used by the [c]ourt to uphold a speaker’s
conviction’’). In any event, it is generally acknowledged that the ‘‘inflicts
injury’’ prong no longer serves to justify the fighting words exception. See,
e.g., Purtell v. Mason, 527 F.3d 615, 624 (7th Cir.) (‘‘[a]lthough the ‘inflict-
injury’ alternative in Chaplinsky’s definition of fighting words has never
been expressly overruled, the [United States] Supreme Court has never held
that the government may, consistent with the [f]irst [a]mendment, regulate
or punish speech that causes emotional injury but does not have a tendency
to provoke an immediate breach of the peace’’ (emphasis omitted)), cert.
denied, 555 U.S. 945, 129 S. Ct. 411, 172 L. Ed. 2d 288 (2008); Boyle v.
Evanchick, United States District Court, Docket No. 19-3270 (GAM) (E.D.
Pa. March 19, 2020) (noting ‘‘[t]he [United States] Supreme Court’s retreat
from the broad standard announced in Chaplinsky’’ and abandonment of
the ‘‘inflicts injury’’ prong); UWM Post, Inc. v. Board of Regents, 774 F.
Supp. 1163, 1170 (E.D. Wis. 1991) (‘‘[s]ince Chaplinsky, the [United States]
Supreme Court has . . . limited the fighting words definition so that it now
. . . includes [only the ‘incitement’ prong]’’); People in the Interest of R.C.,
411 P.3d 1105, 1108 (Colo. App. 2016) (‘‘soon after Chaplinsky, the [United
States] Supreme Court either dropped the ‘inflict[s] injury’ category of fight-
ing words altogether or recited the full definition of fighting words without
further reference to any distinction between merely hurtful speech and
speech that tends to provoke an immediate breach of the peace’’), cert.
denied, Colorado Supreme Court, Docket No. 16SC987 (November 20, 2017);
State v. Drahota, 280 Neb. 627, 634, 788 N.W.2d 796 (2010) (‘‘the [United
States] Supreme Court has largely abandoned Chaplinsky’s ‘inflict[s] injury’
standard’’); E. Chemerinsky, Constitutional Law (5th Ed. 2017) § 9 (C) (2)
(a), p. 1387 (‘‘the [c]ourt has narrowed the scope of the fighting words
doctrine by ruling that it applies only to speech directed at another person
that is likely to produce a violent response’’); M. Rutzick, ‘‘Offensive Lan-
guage and the Evolution of First Amendment Protection,’’ 9 Harv. C.R.-C.L.
L. Rev. 1, 22–27 (1974) (tracing United States Supreme Court’s rejection of
‘‘inflicts injury’’ prong in decades since Chaplinsky); M. Mannheimer, Note,
‘‘The Fighting Words Doctrine,’’ 93 Colum. L. Rev. 1527, 1538–49 (1993)
(tracing United States Supreme Court’s rejection of ‘‘inflicts injury’’ prong
in decades since Chaplinsky); Note, supra, 106 Harv. L. Rev. 1137 (‘‘this
prong almost certainly has been de facto overruled’’).
8
First amendment jurisprudence traditionally recognizes that the govern-
ment may not censor speech merely because the content or message is
insulting or offensive due to its emotional impact on the audience. See, e.g.,
Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)
(‘‘[i]f there is a bedrock principle underlying the [f]irst [a]mendment, it is
that the government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable’’); Cohen v.
California, 403 U.S. 15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (‘‘Surely
the [s]tate has no right to cleanse public debate to the point where it is
grammatically palatable to the most squeamish among us. . . . [I]t is . . .
often true that one man’s vulgarity is another’s lyric.’’); cf. R. Kennedy,
supra, 2001 U. Ill. L. Rev. 943 (‘‘[t]he [fighting words] doctrine is in tension
with the dominant (and good) rule in criminal law that prevents ‘mere words
standing alone . . . no matter how insulting, offensive, and abusive’ from
constituting the predicate for a provocation excuse’’), quoting United States
v. Alexander, 471 F.2d 923, 941 n.48 (D.C. Cir.), cert. denied sub nom.
Murdock v. United States, 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494 (1972).
9
The incitement analysis has its origins in cases in which a speaker faces
criminal prosecution or civil liability for advocating unlawful conduct. See,
e.g., Brandenburg v. Ohio, 395 U.S. 444, 444–45, 89 S. Ct. 1827, 23 L. Ed.
2d 430 (1969) (speech allegedly advocating hate group to engage in racial
violence); Schenck v. United States, 249 U.S. 47, 48–50, 39 S. Ct. 247, 63 L.
Ed. 470 (1919) (speech advocating reader to resist military conscription);
cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927, 102 S. Ct. 3409,
73 L. Ed. 2d 1215 (1982) (applying Brandenburg test to speech allegedly
inciting group to cause property damage). Under the Brandenburg ‘‘incite-
ment’’ analysis, speech loses its constitutional protection only if it is (1)
‘‘directed to inciting or producing imminent lawless action,’’ and (2) ‘‘likely
to incite or produce such action.’’ Brandenburg v. Ohio, supra, 447. The
fighting words doctrine, unlike the Brandenburg incitement analysis, con-
tains no intent requirement. See C. Calvert, ‘‘First Amendment Envelope
Pushers: Revisiting the Incitement-to-Violence Test with Messrs. Branden-
burg, Trump, & Spencer,’’ 51 Conn. L. Rev. 117, 131–32 (2019) (‘‘[i]n contrast
to Brandenburg, the [c]ourt’s test for another unprotected category of
speech related to violence—fighting words—lacks an intent element’’); M.
Mannheimer, Note, ‘‘The Fighting Words Doctrine,’’ 93 Colum. L. Rev. 1527,
1557 (1993) (observing that fighting words doctrine does not contain ‘‘a true
incitement requirement because [it] fail[s] to require a critical component
of the Brandenburg incitement standard—the intent of the speaker to cause
violence’’).
10
Professor Kathleen Sullivan is correct to label the doctrine gendered
and anachronistic, although its historical roots trace back to the nineteenth
century gentlemanly ritual of the duel rather than the timeless working-
class custom of barroom brawling. Ironically, as Professor Jeffrey Rosen
has observed, ‘‘[t]he [social] foundation of the [fighting words] doctrine had
collapsed long before the [United States] Supreme Court enshrined it as
marginal constitutional law in 1942 [in Chaplinksy].’’ J. Rosen, ‘‘Fighting
Words,’’ Legal Affairs, May/June, 2002, p. 18. ‘‘Legal bans on fighting words,’’
explains Rosen, ‘‘grew out of the [nineteenth century] efforts to discourage
the practice of dueling, and they evolved from a [class-based] culture of
honor and hierarchy’’ that we would no longer recognize in contemporary
America. Id., p. 16. The concept of fighting words emanates from a ‘‘highly
ritualized code of honor [that] led American gentlemen in the [nineteenth]
century to fight duels, to prove their social status and worthiness for leader-
ship. . . . [D]ueling depended on a strong consensus about the social peck-
ing order. If you were insulted by a social equal, you redeemed your honor
by challenging him to a duel. If you wanted to insult a social inferior, you
displayed your contempt by bludgeoning him with a cane. In a culture based
on honor, there was broad agreement about what kinds of insults could be
avenged only by demanding satisfaction in a duel.’’ Id. States attempted—
apparently with little success—to put an end to this cultural artifact by
enacting laws criminalizing the utterance of words considered so insulting
as to necessitate a violent response. Id.; see also K. Greenberg, Honor and
Slavery (Princeton University Press 1996) c. 1, pp. 14–15 (discussing history
of antidueling laws); J. Freeman, Affairs of Honor (Yale University Press
2001) c. 4, pp. 159–198 (discussing social meaning and national importance
of dueling in America during early nineteenth century). Professor Freeman’s
discussion in particular demonstrates that participation in these ‘‘affairs of
honor’’ was not considered optional. See J. Freeman, supra, pp. 159–164
(discussing Alexander Hamilton’s tormented desire to avoid proceeding with
duel demanded by Aaron Burr and Hamilton’s reluctant conclusion that duel
was impossible to avoid). ‘‘The laws of honor,’’ writes Professor Freeman,
‘‘indicated when insults could not be ignored . . . .’’ Id., p. 171. Our country’s
dominant social code no longer compels us to defend our honor with vio-
lence; to the contrary, it is considered honorable to respond to insults by
walking away, as the parking enforcement officer, Michael McCargo, did in
the present case.
11
There is a substantial body of social science literature on implicit bias,
which is generally defined as subconscious ‘‘stereotypes and prejudices that
can negatively and nonconsciously affect behavior . . . .’’ L. Richardson,
‘‘Arrest Efficiency and the Fourth Amendment,’’ 95 Minn. L. Rev. 2035, 2039
(2011). One such implicit bias ‘‘consists of the cultural stereotype of blacks,
especially young men, as violent, hostile, aggressive, and dangerous.’’ Id.;
see also A. Rutbeck-Goldman & L. Richardson, ‘‘Race and Objective Reason-
ableness in Use of Force Cases: An Introduction to Some Relevant Social
Science,’’ 8 Ala. C.R. & C.L. L. Rev. 145, 149 (2017) (‘‘[s]ocial science research
over the last few decades suggests that we unconsciously associate [b]lack
men with danger, criminality, and violence’’). Implicit biases ‘‘linking [b]lacks
with aggression have been shown to cause people to judge the behavior of
a [b]lack person as more aggressive than the identical behavior of a [w]hite
person,’’ leading to higher rates of police violence and incarceration. K.
Spencer et al., ‘‘Implicit Bias and Policing,’’ 10 Soc. & Personality Psychol.
Compass 50, 54 (2016); see also L. Richardson, supra, 2039 (‘‘As a result of
implicit biases, an officer might evaluate behaviors engaged in by individuals
who appear black as suspicious even as identical behavior by those who
appear white would go unnoticed. In other words, even when officers are
not intentionally engaged in conscious racial profiling, implicit biases can
lead to a lower threshold for finding identical behavior suspicious when
engaged in by blacks than by whites.’’). Implicit biases are not limited to
race; they also perpetuate subconscious gender stereotypes. Many individu-
als view women as ‘‘meek or submissive’’; J. Cuevas & T. Jacobi, ‘‘The
Hidden Psychology of Constitutional Criminal Procedure,’’ 37 Cardozo L.
Rev. 2161, 2181 (2016); and, thus, not prone to engage in violent behavior.
This is not true, however, for women of color. Black women are often
viewed as ‘‘hot-tempered, combative, and uncooperative,’’ leading to higher
rates of police violence and incarceration. F. Freeman, Note, ‘‘Do I Look
Like I Have an Attitude? How Stereotypes of Black Women on Television
Adversely Impact Black Female Defendants Through the Implicit Bias of
Jurors,’’ 11 Drexel L. Rev. 651, 655 (2019); see also N. Amuchie, ‘‘ ‘The
Forgotten Victims’ How Racialized Gender Stereotypes Lead to Police Vio-
lence Against Black Women and Girls: Incorporating an Analysis of Police
Violence into Feminist Jurisprudence and Community Activism,’’ 14 Seattle
J. Soc. Just. 617, 646 (2016) (‘‘[b]lack women and girls are viewed as [nonfemi-
nine] or [unladylike], which leads to high levels of violence against them
and excessive policing’’). America, of course, has no monopoly on group
stereotypes of this nature. See, e.g., P. Lerner et al., ‘‘Introduction: German
Jews, Gender, and History,’’ in Jewish Masculinities (B. Baader et al. eds.,
2012) p. 1 (‘‘[t]he idea that Jewish men differ from non-Jewish men by
being delicate, meek, or effeminate in body and character runs deep in
European history’’).
12
See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 12 L. Ed.
2d 793 (1964) (Stewart, J., concurring) (confessing his inability to define
pornography in words but explaining that ‘‘I know it when I see it’’). Justice
Potter Stewart’s candor is admirable and refreshing, but it is also troubling
to those who believe that ‘‘the exercise of judicial power is not legitimate
if it is based . . . on subjective will rather than objective analysis, on emo-
tion [or instinct] rather than reasoned reflection.’’ P. Gewirtz, Essay, ‘‘On ‘I
Know It When I See It,’ ’’ 105 Yale L.J. 1023, 1025 (1996). Some commentators,
including Professor Gewirtz, consider such criticism unfair on the ground
that it ‘‘mischaracterizes and understates the role that emotion and nonra-
tional elements properly play in forming judicial [decision-making and opin-
ion writing].’’ Id. I am not unsympathetic to Professor Gewirtz’ general point,
but my heart and mind are in agreement that ‘‘I know it when I see it’’
jurisprudence has no place in first amendment law.
13
To cite one illustrative example of what I consider the unconvincing
arguments offered by the majority to explain why the offensive speech was
protected in Baccala but not here, the majority compares the nature of the
addressee’s job as an assistant store manager in Baccala to that of Michael
McCargo, the parking enforcement officer in the present case, and opines
that the store employee’s supervisory status made her more likely to ‘‘[model]
appropriate, responsive behavior, aimed at de-escalating the situation
. . . .’’ (Internal quotation marks omitted.), quoting State v. Baccala, supra,
326 Conn. 253. Unlike the majority, I would place far greater weight on the
fact that the addressee in this case was a government employee, not a private
individual, as in Baccala. This factor, though not dispositive, traditionally
and commonsensically weighs strongly in favor of according the speaker
greater first amendment protection. See, e.g., Houston v. Hill, 482 U.S. 451,
462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (‘‘a properly trained 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)), quoting Lewis v. New Orleans,
415 U.S. 130, 135, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974) (Powell, J., concurring
in the result); United States v. Poocha, 259 F.3d 1077, 1081 (9th Cir. 2001)
(‘‘the area of speech unprotected as fighting words is at its narrowest, if
indeed it exists at all, with respect to criminal prosecution for speech
directed at public officials’’); Abudiab v. San Francisco, 833 F. Supp. 2d
1168, 1175 (N.D. Cal. 2011) (parking control officer, ‘‘as a public official
whose duties often incite the vitriol of the public, and who consequently is
authorized to use force against members of the public (deployment of pepper
spray in self-defense) . . . should be held to a higher standard of conduct
in terms of his reaction to mere criticisms, profane and otherwise, of the
manner in which he conducts his official duties’’), aff’d sub nom. Abudiab
v. Georgopoulos, 586 Fed. Appx. 685 (9th Cir. 2013); In re Nickolas S., 226
Ariz. 182, 188, 245 P.3d 446 (2011) (‘‘a student’s profane and insulting out-
burst’’ was not fighting words because ‘‘Arizona teachers exemplify a higher
level of professionalism’’); State v. Baccala, supra, 326 Conn. 244 (‘‘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’’). To be sure, McCargo was not a police officer, but he was
employed as an agent of the government to walk the streets imposing
monetary fines on members of the public for municipal parking violations.
Parking enforcement officers, as the bearers of bad news, are in a very
unpopular line of work and can expect to be subjected to varying levels of
verbal abuse. See, e.g., T. Barrett, The Dangerous Life of a Parking Cop,
The Tyee (April 2, 2004), available at https://thetyee.ca/Life/2004/04/02/
The_Dangerous_Life_of_a_Parking_Cop/ (last visited August 26, 2020)
(reviewing film about ‘‘the life of a parking enforcement officer,’’ who
explained that ‘‘physical assaults are rare, but verbal abuse is something
that happens almost every day’’); J. McKinley, ‘‘San Franciscans Hurl Their
Rage at Parking Patrol,’’ N.Y. Times, January 6, 2007, p. A12 (abuse on
parking control officers is ‘‘common, often frightening and, occasionally,
humiliating’’).
14
The particular facts of the present case, and our consensus regarding
the correct result here, ought not obscure the reality that demographic
stereotypes and implicit biases relating to race will continue to plague this
doctrine. Conscious or unconscious racial stereotypes help to explain why
some speech is deemed likely to incite violence, whereas other speech is
not. See, e.g., A. Carr, supra, 31 Hastings Women’s L.J. 229–30 (‘‘For nonwhite
Americans, racist stereotypes and diverging governmental and cultural
norms about expressing public anger compound the complexities of [speech
regulation]. Moreover, the state’s responses to different individuals and
groups’ public displays of anger—as in protest actions—vary on the basis of
race. For example, the recent cases of mass protests in Ferguson [Missouri,
in 2014] and the Women’s Marches (2017 onward) displayed enormous
disparities: police responses to the [majority black] protesters in Ferguson
were militarized and violent compared to the anodyne permissiveness of
authorities toward the visibly white Women’s March organizers and atten-
dees. . . . Those [state individual] contexts include, among others, racist
patterns of policing and incarceration, as well as profoundly asymmetric
rates of arrest and prosecution. These considerations form a daunting back-
drop for nonwhite (and non-male) listeners . . . in ways not contemplated
by the [c]ourt in Chaplinsky and later cases. Black and brown Americans
have myriad deeply rooted claims for condemning state authorities, for
angrily castigating them in terms far harsher than Chaplinsky’s censured
utterance, but they also face far greater chances of harm if they choose to
do so. Censure limits free speech rights; speaking out against racist systems
often deprives speakers of color their very lives.’’ (Footnotes omitted.)).
15
I doubt that anyone would dispute that the actual statutory language
promulgated by our legislature, which criminalizes the use of ‘‘abusive or
obscene language’’ in a public place ‘‘with intent to cause inconvenience,
annoyance or alarm’’; General Statutes § 53a-181 (a) (5); plainly cannot pass
muster under the void for vagueness doctrine without the aid of a workable
narrowing construction. See Gooding v. Wilson, 405 U.S. 518, 523, 92 S. Ct.
1103, 31 L. Ed. 2d 408 (1972) (striking down Georgia’s breach of peace
statute in absence of such limiting construction while observing that ‘‘[its]
decisions since Chaplinsky have continued to recognize state power consti-
tutionally to punish ‘fighting’ words under carefully drawn statutes not also
susceptible of application to protected expression’’); see also Plummer v.
Columbus, 414 U.S. 2, 2–3, 94 S. Ct. 17, 38 L. Ed. 2d 3 (1973) (striking down
municipal ordinance providing that ‘‘[n]o person shall abuse another by
using menacing, insulting, slanderous, or profane language’’ (internal quota-
tion marks omitted)).