State v. Liebenguth ( 2021 )

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STATE v. LIEBENGUTH—FIRST CONCURRENCE
KAHN, J. I agree with and join the majority’s opinion,
reversing the judgment of the Appellate Court with
respect to the conviction of the defendant, David G.
Liebenguth, of breach of the peace in the second degree
and remanding the case with direction to affirm the
trial court’s judgment of conviction on that charge. I
write separately, however, to reiterate my opinion that
‘‘[t]he continuing vitality of the fighting words exception
is dubious and the successful invocation of that excep-
tion is so rare that it is practically extinct.’’ State v.
Parnoff, 329 Conn. 386, 411, 186 A.3d 640 (2018) (Kahn,
J., concurring in the judgment). Despite the diminished
scope of the fighting words doctrine, ‘‘I assume that
the . . . exception remains valid for now, but [remain]
. . . mindful that the exception is narrowly construed
. . . .’’ Id., 414. To the extent that the doctrine is viable,
I agree with the majority, as well as Justice Ecker’s
concurring opinion and Judge Devlin’s well reasoned
view, that when the ‘‘ ‘viciously hostile epithet,’ which
has deep roots in this nation’s long and deplorable his-
tory of racial bigotry and discrimination,’’ is used to
demean and humiliate a person,1 it constitutes fighting
words. See State v. Liebenguth, 181 Conn. App. 37,
64–65, 186 A.3d 39 (2018) (Devlin, J., concurring in part
and dissenting in part). I also note, in particular, that
I disagree with the holding and reasoning of State v.
Baccala, 326 Conn. 232, 241–42 and n.7, 163 A.3d 1,
cert. denied, U.S. , 138 S. Ct. 510, 199 L. Ed. 2d
408 (2017), to the extent that the case stands for the
proposition that personal attributes of the addressee
such as age, gender, race, and status should be consid-
ered when determining whether a reasonable person
with those characteristics was likely to respond with
violence. Regardless of my ongoing reservations, the
majority has correctly applied precedent from the
United States Supreme Court and this court to which
we remain beholden.
It is axiomatic that the right to free speech is a bed-
rock principle of the United States, one so essential
that the formation of our nation was predicated on its
inclusion in the first amendment of the United States
constitution. See U.S. Const., amend. I. The right to free
speech, however, is not absolute, and the United States
Supreme Court has delineated the circumstances under
which words fall outside the protections of the first
amendment. One such circumstance is speech that con-
stitutes fighting words. The United States Supreme
Court first articulated the doctrine in the seminal case
of Chaplinsky v. New Hampshire, 315 U.S. 568, 572,
62 S. Ct. 766, 86 L. Ed. 1031 (1942). In that case, the
court carved out an exception to protections afforded
free speech for words ‘‘which by their very utterance
inflict injury or tend to incite [violence] . . . .’’ Id.; see
also Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780,
29 L. Ed. 2d 284 (1971); State v. Baccala, supra, 326
Conn. 237. In the more than seventy-five years since
Chaplinsky was decided, both the United States
Supreme Court and the dictates of changing societal
norms have diminished the scope and applicability of
the fighting words exception.2 See Note, ‘‘The Demise
of the Chaplinsky Fighting Words Doctrine: An Argu-
ment for Its Interment,’’ 106 Harv. L. Rev. 1129, 1129
(1993).
The United States Supreme Court has narrowed the
application of the fighting words doctrine, including
limiting it to ‘‘those personally abusive epithets which,
when addressed to the ordinary citizen, are, as a matter
of common knowledge, inherently likely to provoke
violent reaction’’; Cohen v. California, supra, 403 U.S.
20; thereby ‘‘seemingly abandon[ing] the suggestion in
Chaplinsky that there are words that by their very utter-
ance inflict injury . . . .’’ (Internal quotation marks
omitted.) State v. Parnoff, supra, 329 Conn. 411–12
(Kahn, J., concurring in the judgment); see also Note,
supra, 106 Harv. L. Rev. 1129. Contemporaneous with
judicial constriction of the fighting words exception,
societal norms have also evolved, rendering ‘‘public
discourse . . . more coarse . . . [and resulting in]
fewer combinations of words and circumstances that
are likely to fit within the fighting words exception.
Indeed, given some of the examples of egregious lan-
guage that have not amounted to fighting words follow-
ing Chaplinsky, it is difficult to imagine examples that
rise to the requisite level today.’’ (Citation omitted;
internal quotation marks omitted.) State v. Parnoff,
supra, 413 (Kahn, J., concurring in the judgment); see
also State v. Baccala, supra, 326 Conn. 239 (calling
someone racketeer or fascist, deemed fighting words
in Chaplinsky, ‘‘would be unlikely to even raise an
eyebrow today’’); State v. Tracy, 200 Vt. 216, 237, 130
A.3d 196 (2015) (‘‘in this day and age, the notion that
any set of words are so provocative that they can rea-
sonably be expected to lead an average listener to imme-
diately respond with physical violence is highly prob-
lematic’’ (emphasis in original)).
This judicial constriction, overlaid with current soci-
etal norms, calls into question the continued vitality of
the fighting words exception. See Note, supra, 106 Harv.
L. Rev. 1146. Regardless, ‘‘against this small and tor-
tured canvas, the fighting words exception resurfaces
occasionally,’’ and the United States Supreme Court
‘‘continues to list fighting words among the exceptions
to first amendment protection. . . . Therefore, I
assume that the fighting words exception remains valid
for now, but [remain] . . . mindful that the exception
is narrowly construed and poses a significant hurdle
for the state to overcome.’’ (Citation omitted.) State v.
Parnoff, supra, 329 Conn. 413–14 (Kahn, J., concurring
in the judgment).
When determining whether the fighting words excep-
tion applies in a given case, the court must consider
both ‘‘the words used by the defendant’’ and ‘‘the cir-
cumstances in which they were used . . . .’’ State v.
Szymkiewicz, 237 Conn. 613, 620, 678 A.2d 473 (1996).
This court recently stated that ‘‘[a] proper examination
of context also considers those personal attributes of
the speaker and the addressee that are reasonably
apparent because they are necessarily a part of the
objective situation in which the speech was made.’’
State v. Baccala, supra, 326 Conn. 241. ‘‘[W]hen there
are objectively apparent characteristics that would bear
on the likelihood of [a violent] response, many courts
have considered the average person with those charac-
teristics. Thus, courts also have taken into account the
addressee’s age, gender, and race.’’ Id., 243. The major-
ity in the present case agrees that, ‘‘because the fighting
words exception is intended only to prevent the likeli-
hood of an actual violent response, it is an unfortunate
but necessary consequence that we are required to dif-
ferentiate between addressees who are more or less
likely to respond violently and speakers who are more
or less likely to elicit such a response.’’ (Internal quota-
tion marks omitted.), quoting State v. Baccala, supra,
249. I disagree with this proposition to the extent that
it allows for consideration of the addressee’s character-
istics beyond ‘‘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 circumstances’’ when determining whether
he or she would respond violently.3 State v. Baccala,
supra, 245.
The ultimate inquiry of the fighting words exception
is whether a speaker’s words would reasonably result
in a violent reaction by its intended recipient. See, e.g.,
Cohen v. California, supra, 403 U.S. 20. Considering
the stereotypes associated with immutable characteris-
tics of the addressee, however, produces discriminatory
results ‘‘because its application depends on assump-
tions about how likely a listener is to respond violently
to speech.’’ W. Reilly, ‘‘Fighting the Fighting Words Stan-
dard: A Call for Its Destruction,’’ 52 Rutgers L. Rev. 947,
948 (2000). This approach essentially requires courts
to promulgate stereotypes on the basis of race, gender,
age, disability, ethnicity, and sexual orientation, among
others, and has led to much of the scholarly criticism
of the fighting words exception. See generally Note,
supra, 106 Harv. L. Rev. 1129.
I will refrain from enumerating a laundry list of a
stereotypes related to violent responses from which
flow myriad discriminatory results, but I illustrate one
example of a common refrain in society and courts:
women are less likely than men to react to offensive
situations with physical violence. Id., 1134. Allowing
such a stereotype into the analysis of whether a reason-
able person in the addressee’s circumstances is likely
to respond to words with violence creates a situation
in which ‘‘almost nothing one could say to a woman
would be proscribed by the fighting words doctrine
. . . .’’ W. Reilly, supra, 52 Rutgers L. Rev. 948. The
overarching result is that groups of people that, for
example, are stereotyped as docile due to their gender
or ethnicity, or who have physical limitations due to
their age or disability that prevent them from
responding violently—the precise groups that face per-
sistent discrimination—must endure a higher level of
offensive speech before being afforded legal remedies
that comport with our constitution. From the speaker’s
perspective, such a result allows him or her to more
readily and viciously verbally assault certain oppressed
groups without fear of criminal prosecution.
Although I have strong reservations about the viabil-
ity and application of the fighting words doctrine
because it leads to consideration of stereotypical pro-
pensities for violence when assessing an addressee’s
likely response to the speaker’s words, I recognize that
the fighting words exception remains binding United
States Supreme Court precedent. As such, I agree with
the majority’s conclusion that the defendant’s use of the
phrases ‘‘fucking niggers’’ and to ‘‘remember Ferguson’’
during his encounter with Michael McCargo were likely
to provoke a violent response from a reasonable person
under the circumstances and, therefore, constituted
fighting words not entitled to protection under the first
amendment. Although there are no per se fighting
words, and statements must be assessed in the context
in which they are made, the highly offensive, degrading,
and humiliating racial slur that the defendant used is
one of the most volatile terms in the English language,
and, therefore, it does not stretch logic to conclude that
its use in this context would likely cause a reasonable
person to respond with violence.
For the foregoing reasons, I respectfully concur.
1
I completely agree with the majority that the racial epithet is particularly
demeaning and hostile when used toward an African-American person,
thereby likely to provoke a violent reaction. I would not, however, preclude
a situation in which the same language directed at a non-African American
could result in a similar reaction. By way of example, if the same racial
slurs were directed with the same intent to an African-American child in
the presence of her or his non-African-American parent, that parent may
have a similar visceral reaction of violence.
2
Even if the fighting words doctrine were obsolete, the defendant’s con-
duct could have constituted a violation under other provisions of our criminal
statutes, such as General Statutes § 53a-181 (a) (1). In this case, the state
charged the defendant with breach of the peace under § 53a-181 (a) (5), the
provision that proscribes speech. The defendant, however, engaged in both
speech and conduct that could have supported a charge under § 53a-181
(a) (1), which provides that ‘‘[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 a risk thereof, such person: (1) Engages in
fighting or in violent, tumultuous or threatening behavior in a public place
. . . .’’ Alternatively, the state could also have charged the defendant with
disorderly conduct under General Statutes § 53a-182 (a) (1) or (2). Although
‘‘the correct application of the exception to first amendment protection is
not based on the charge or charges leveled against the defendant but, rather,
on the state’s theory of the case,’’ by focusing on speech only, the state
relied on the fighting words, rather than the true threat, exception to first
amendment protection. State v. Parnoff, supra, 329 Conn. 407 (Kahn, J.,
concurring in the judgment). The point remains that it is the state that
determines on which charge and on which exception to first amendment
protection it chooses to rely. The state should consider the wisdom of
continuing to pursue a doctrine that has been often criticized and rarely
upheld.
3
I observe that the United States Supreme Court has suggested that
whether the addressee is a police officer should be considered because ‘‘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.’’ (Emphasis added; internal quotation marks
omitted.) Houston v. Hill, 482 U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d
398 (1987), 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); see also State
v. Baccala, supra, 326 Conn. 263–64 (Eveleigh, J., concurring in part and
dissenting in part). ‘‘Nevertheless, this court has expressly adopted a nar-
rower application of the fighting words standard for speech addressed to
police officer[s],’’ at least in some contexts. State v. Baccala, supra, 264
(Eveleigh, J., concurring in part and dissenting in part); see also State v.
DeLoreto, 265 Conn. 145, 163, 827 A.2d 671 (2003) (‘‘a narrower class of
statements constitutes fighting words when spoken to police officers, rather
than to ordinary citizens, because of the communicative value of such state-
ments’’). To the extent that these cases do not rely on stereotypes related
to an addressee’s race, gender, age, disability, ethnicity, sexual orientation,
or other immutable characteristics, they do not raise the concerns typically
associated with the application of the doctrine.