State v. Liebenguth

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STATE OF CONNECTICUT v. DAVID G. LIEBENGUTH
(SC 20145)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The defendant was convicted of breach of the peace in the second degree
in connection with an incident in which he confronted and directed
certain comments and racial slurs at M, an African-American parking
enforcement officer, who, immediately beforehand, had placed a parking
ticket on the defendant’s vehicle for being parked in a metered space
without payment. Upon returning to his vehicle and finding the parking
ticket, the defendant confronted M. After M and the defendant exchanged
words, the situation escalated, and the defendant told M that the parking
authority with which he was employed was ‘‘fucking unbelievable’’ and
that he issued the parking ticket because the defendant’s car was
‘‘white.’’ The defendant then told M that the actual reason he was given
a parking ticket was because he was white. As the defendant started
to walk away from M, the defendant stated, ‘‘remember Ferguson,’’
which apparently was a reference to a then recent and highly publicized
shooting of an African-American man by a white police officer in Fergu-
son, Missouri. Thereafter, both M and the defendant returned to and
entered their vehicles, both of which had at least some of their windows
down. M then thought he heard the defendant say the words ‘‘fucking
niggers,’’ which caused him to believe that the defendant’s earlier com-
ment about Ferguson was a threat meant to imply that what had hap-
pened in Ferguson was going to happen to him. As M was driving away,
the defendant cut through the parking lot in his vehicle, approached
M’s vehicle, and then drove past M. As the defendant was driving past
M, he looked directly at M with an angry expression and repeated the
slur ‘‘fucking niggers’’ louder than he had the first time he uttered it.
On appeal to the Appellate Court from the judgment of conviction, the
defendant claimed, inter alia, that the evidence was insufficient to sustain
his breach of the peace conviction insofar as the racial taunts that he
directed at M were protected by the first amendment to the United
States constitution and, therefore, could not form the basis of such a
conviction. The Appellate Court reversed the defendant’s conviction,
concluding, inter alia, that the defendant’s utterances were unlikely to
provoke an immediate, violent response by a reasonable person in M’s
shoes and, thus, were not prohibited fighting words under the first
amendment. On the granting of certification, the state appealed to this
court. Held that, contrary to the determination of the Appellate Court,
the language the defendant used to demean, intimidate and anger M,
when considered in the circumstances in which that language was used,
constituted fighting words likely to provoke an immediate, violent
response from a reasonable person in M’s position, and, accordingly,
the first amendment did not prohibit the state’s use of the defendant’s
words to obtain his breach of the peace conviction: the defendant’s use
of the word ‘‘niggers,’’ which is inextricably linked to racial prejudice
and oppression, and which, when used by a white person as an assertion
of the racial inferiority of an African-American person, is highly offensive
and demeaning, his use of the profane adjective ‘‘fucking’’ to modify
the word ‘‘niggers’’ to emphasize his anger, his continued escalation of
the confrontation by approaching M while they were in their vehicles,
looking at M with an angry expression as he drove by and repeating
the words ‘‘fucking niggers,’’ and his use of aggressive hand and bodily
gestures and other profanities and racially charged innuendos earlier on
in the confrontation all served to incite an immediate, violent response
by a reasonable person in M’s shoes; moreover, although M, like any
parking enforcement officer, undoubtedly was aware that some mem-
bers of the public might express frustration or anger upon receiving a
ticket, and although M did not react violently despite the highly inflam-
matory and inciting nature of the defendant’s words and conduct, this
court disagreed that the average African-American parking official would
have been prepared for and responded peaceably to the kind of racial
slurs and threatening behavior with which M was confronted; further-
more, the fact that the defendant and M were in their vehicles when
the defendant used the epithet ‘‘fucking niggers’’ was of no consequence,
as the two men were in close proximity to and maintained eye contact
with each other, so that each could see and hear each other clearly, and
M was in a position to pursue the defendant or to retaliate immediately.
(Two justices concurring separately in two opinions)
Argued March 29, 2019—officially released August 27, 2020**
Procedural History
Amended information charging the defendant with
breach of the peace in the second degree and tampering
with a witness, brought to the Superior Court in the
judicial district of Stamford-Norwalk, geographical area
number twenty, and tried to the court, Hernandez, J.;
verdict and judgment of guilty, from which the defen-
dant appealed to the Appellate Court, DiPentima, C.
J., and Sheldon and Devlin, Js., which reversed in part
the trial court’s judgment and remanded the case to that
court with direction to render a judgment of acquittal
on the charge of breach of the peace in the second
degree, and the state, on the granting of certification,
appealed to this court. Reversed in part; judgment
directed.
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Nadia C. Prinz, former deputy
assistant state’s attorney, for the appellant (state).
John R. Williams, for the appellee (defendant).
Opinion
PALMER, J. Under General Statutes § 53a-181 (a) (5),
a person is guilty of breach of the peace in the second
degree when, with the intent to cause inconvenience,
annoyance or alarm, he uses abusive language in a pub-
lic place.1 That broad statutory proscription, however,
is limited by the free speech provisions of the first
amendment to the United States constitution,2 which
prohibit the government from ‘‘restrict[ing] expression
because of its message, its ideas, its subject matter, or
its content’’; (internal quotation marks omitted) Ash-
croft v. American Civil Liberties Union, 535 U.S. 564,
573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002); thereby
protecting speech ‘‘without regard . . . to the truth,
popularity, or social utility of the ideas and beliefs [that]
are offered.’’ National Assn. for the Advancement of
Colored People v. Button, 371 U.S. 415, 445, 83 S. Ct.
328, 9 L. Ed. 2d 405 (1963). These safeguards, however,
although expansive, are not absolute, and the United
States Supreme Court has long recognized a few dis-
crete categories of speech that may be prosecuted and
punished, including so-called ‘‘fighting words’’—‘‘those
personally abusive epithets [that], when addressed to
the ordinary citizen, are, as a matter of common knowl-
edge, inherently likely to provoke violent reaction.’’
Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 29
L. Ed. 2d 284 (1971). In this certified appeal, we must
determine whether certain vulgar and racially charged
remarks of the defendant, David G. Liebenguth, which
included multiple utterances of the words ‘‘fucking nig-
gers’’ directed at an African-American parking enforce-
ment official during a hostile confrontation with that
official following the defendant’s receipt of a parking
ticket, were ‘‘fighting words’’ subject to criminal sanc-
tions. As a result of his conduct, the defendant was
arrested and charged with breach of the peace in the
second degree in violation of § 53a-181 (a) (5) and,
following a trial to the court, was found guilty.3 On
appeal to the Appellate Court, the defendant claimed,
inter alia, that the evidence was insufficient to support
the trial court’s finding of guilty because the words he
uttered to the parking official constituted protected
speech that could not, consistent with the first amend-
ment, provide the basis of a criminal conviction. See
State v. Liebenguth, 181 Conn. App. 37, 47, 186 A.3d 39(2018). Although acknowledging that the defendant’s
language was ‘‘extremely vulgar and offensive’’ and
‘‘meant to personally demean’’ the official; id., 53; the
Appellate Court, with one judge dissenting, agreed with
the defendant that his speech was constitutionally pro-
tected and that, consequently, his conviction, because
it was predicated on that speech, could not stand. See
id., 54; see also id., 58 (Devlin, J., concurring in part
and dissenting in part). We granted the state’s petition
for certification to appeal, limited to the question of
whether the Appellate Court correctly concluded that
the defendant’s conviction must be reversed because
the first amendment barred his prosecution for the ver-
bal statements at issue. See State v. Liebenguth, 330
Conn. 901, 189 A.3d 1231 (2018). We now conclude
that the defendant’s remarks were unprotected fighting
words and, therefore, that his conviction does not run
afoul of the first amendment. Accordingly, we reverse
the judgment of the Appellate Court in part and remand
the case to that court with direction to affirm the trial
court’s judgment with respect to his conviction of
breach of the peace in the second degree.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history.
‘‘Michael McCargo, a parking enforcement officer for
the town of New Canaan, testified that he was patrolling
the [Morse] Court parking lot on the morning of August
28, 2014, when he noticed that the defendant’s vehicle
was parked in a metered space for which no payment
had been made. He first issued a [fifteen dollar parking]
ticket for the defendant’s vehicle, then walked to
another vehicle to issue a ticket, while his vehicle
remained idling behind the defendant’s vehicle. As
McCargo was returning to his vehicle, he was
approached by the defendant, whom he had never
before seen or interacted with. The defendant said to
McCargo, ‘not only did you give me a ticket, but you
blocked me in.’ Initially believing that the defendant
was calm, McCargo jokingly responded that he didn’t
want the defendant getting away. When the defendant
then attempted to explain why he had parked in the
lot, McCargo responded that his vehicle was in a
metered space for which payment was required, not in
one of the lot’s free parking spaces. McCargo testified
that the defendant’s demeanor then ‘escalated,’ with
the defendant [having said] that the parking authority
was ‘[fucking] [un]believable’ and [having told]
McCargo that he had given him a parking ticket ‘because
my car is white. . . . [N]o, [you gave] me a ticket
because I’m white.’ As the defendant, who is white,
spoke with McCargo, who is African-American, he
‘flared’ his hands and added special emphasis to the
profanity he uttered. Even so, according to McCargo,
the defendant always remained a ‘respectable’ distance
from him. Finally, as the defendant was walking away
from McCargo toward his own vehicle, he spoke the
words, ‘remember Ferguson.’ ’’ State v. Liebenguth,
supra, 181 Conn. App. 39–40.
McCargo also testified that, ‘‘[a]fter both men had
returned to and reentered their vehicles, McCargo,
whose window was rolled down . . . thought he heard
the defendant say the words, ‘fucking niggers.’ This
caused him to believe that the defendant’s prior com-
ment about Ferguson had been made in reference to
the then recent [and highly publicized] shooting of an
African-American man by a white police officer in Fer-
guson, Missouri [on August 9, 2014, approximately three
weeks earlier]. [McCargo] thus believed that the [defen-
dant’s reference to Ferguson was a ‘threat’] meant to
imply that what had happened in Ferguson ‘was going
to happen’ to him. McCargo also believed that, by
uttering the racial slur and making reference to Fergu-
son, the defendant was trying to rile him up and [to]
escalate the situation [by ‘taking it to a whole other
level’]. That, however, did not happen, for, although
McCargo found the remark offensive, and he had never
before been the target of such language while per-
forming his duties, he remained calm at all times and
simply drove away to resume his patrol.’’ Id., 40.
McCargo further testified, however, that, ‘‘[s]hortly
thereafter . . . as [McCargo] was driving away, the
defendant [cut through the parking lot in his vehicle,
approached McCargo, and then] drove past him.’’ Id.,40–41. As the defendant was driving past McCargo, ‘‘the
defendant turned toward him, looked directly at him
with an angry expression on his face, and repeated
the slur, ‘fucking niggers.’ McCargo [also] noted in his
testimony that the defendant said the slur louder the
second time than he had the first time.
‘‘After the defendant drove out of the parking lot,
McCargo [who was shocked and personally offended
by the encounter] called his supervisor, who instructed
him to report the incident to the New Canaan police.
In his report, McCargo noted that there might have been
a witness to the interaction, whom he described as a
young, white female. The defendant later was arrested
in connection with the incident on the charge of breach
of the peace in the second degree.’’ Id., 41.
‘‘Next to testify was Mallory Frangione, the young,
white female witness to the incident whom McCargo
had mentioned in his report. She testified that she
parked in the [Morse] Court parking lot around 9:45 a.m.
on . . . August 28, 2014, and, as soon as she opened
her car door, she heard yelling. She then saw two men,
McCargo and the defendant, who were standing outside
of their vehicles about seventy feet away from her. She
observed that the defendant was moving his hands all
around, that his body movements were aggressive and
irate, and that his voice was loud. She heard him say
something about Ferguson, then say that something
was ‘[fucking] unbelievable.’ [Frangione] further testi-
fied that she saw the defendant take steps toward
McCargo while acting in an aggressive manner. She
described McCargo, by contrast, as calm, noting that he
never raised his voice, moved his arms or gesticulated
in any way. McCargo ultimately backed away from the
defendant and got into his vehicle. The defendant,
[Frangione] recalled, drove in two circles around the
parking lot before leaving. Frangione testified that wit-
nessing the interaction made her feel nervous and
upset.’’4 Id.‘‘After the state rested [its case], the defendant moved
for a judgment of acquittal . . . which the court
denied. The defendant elected not to testify. The court,
ruling from the bench, found the defendant guilty . . . .
It reasoned as follows: ‘In finding that the defendant’s
language and behavior [are] not protected speech, the
court considers the words themselves, in other words,
the content of the speech, the context in which [they
were] uttered, and all of the circumstances surrounding
the defendant’s speech and behavior.
‘‘ ‘The court finds that the defendant’s language, fuck-
ing niggers directed at . . . McCargo twice . . . is not
protected speech. . . . [I]n the American lexicon,
there is no other racial epithet more loaded with racial
animus, no other epithet more degrading, demeaning
or dehumanizing. It is a word [that] is probably the
most [vile] racial epithet a non-African-American can
direct [toward] an African-American. [The defendant]
is white. . . . McCargo is African-American.
‘‘ ‘In light of this country’s long and shameful history
of state sanctioned slavery, Jim Crow segregation, state
sanctioned racial terrorism, financial and housing dis-
crimination, the word simply has . . . no understand-
ing under these circumstances other than as a word
directed to incite violence. The word itself is a word
likely to provoke a violent response.
‘‘ ‘The defendant is not however being prosecuted
solely for use of this word. All language must be consid-
ered in light of its context.
‘‘ ‘The court finds that considering . . . the content
of the defendant’s speech taken in context and in light
of his belligerent tone, his aggressive stance, the fact
that he was walking [toward] . . . McCargo and mov-
ing his hands in an aggressive manner, there’s no other
interpretation other than these are fighting words.5 And
he uttered the phrase not once but twice. It was
directed—the court finds that it was directed directly at
. . . McCargo. There were no other African-Americans
present . . . in the parking lot when it happened, and
indeed . . . McCargo’s unease and apprehension at
hearing those words [were] corroborated by . . . Fran-
gione who . . . said that she felt disconcerted by the
defendant’s tone of voice and his aggressive stance and
actions.’ ’’ (Footnote added.) Id., 43–44.
The defendant thereafter appealed to the Appellate
Court, claiming, inter alia, that the evidence was insuffi-
cient to support his conviction of breach of the peace
in the second degree. Id., 39. Specifically, he maintained
that the racial taunts he directed at McCargo were pro-
tected by the first amendment and, therefore, could not
form the basis of a conviction under § 53a-181 (a) (5).
Id., 47. Relying in large measure on this court’s decision
in State v. Baccala, 326 Conn. 232, 163 A.3d 1, cert.
denied, U.S. , 138 S. Ct. 510, 199 L. Ed. 2d 4086
(2017), the Appellate Court, in a two-to-one decision,
agreed with the defendant that the evidence was insuffi-
cient to support his conviction because his utterances
were unlikely to provoke an immediate, violent
response by a reasonable person in McCargo’s shoes—
that is, his utterances were not prohibited fighting
words, and, therefore, the defendant’s conviction could
not pass muster under the first amendment. See State
v. Liebenguth, supra, 181 Conn. App. 53–54.
In support of its conclusion, the Appellate Court rea-
soned: ‘‘[T]he defendant used extremely vulgar and
offensive language, meant to personally demean
McCargo. Under the circumstances in which he uttered
this language, however, it was not likely to tend to
provoke a reasonable person in McCargo’s position
immediately to retaliate with violence. Although the
evidence unequivocally supports a finding that the
defendant at one point walked toward McCargo while
yelling and moving his hands . . . [t]he evidence [also]
unequivocally shows . . . that the defendant was in his
car both times that he directed the racial slurs toward
McCargo. McCargo did testify that the defendant’s use
of the slurs shocked and appalled him, and that he
found the remarks offensive. He also testified, however,
that he remained calm throughout the encounter and
felt no need to raise his voice to the defendant. A reason-
able person acting in the capacity of a parking official
would be aware that some level of frustration might be
expressed by some members of the public who are
unhappy with receiving tickets and would therefore not
be likely to retaliate with immediate violence during
such an interaction. In reviewing the entire context of
the interaction, we therefore find that, because
McCargo was unlikely to retaliate with immediate vio-
lence to the conduct for which the defendant was
charged, the defendant’s words were not ‘fighting
words,’ [on] which he might appropriately be convicted
of breach of the peace. The defendant’s conviction of
breach of the peace in the second degree must therefore
be reversed.’’ (Footnotes omitted.) Id.Judge Devlin dissented with respect to this holding
because, in his view, the defendant’s remarks, when
considered in the context in which they were uttered,
constituted fighting words that were likely to provoke
a reasonable person in McCargo’s position to retaliate
with violence. See id., 66 (Devlin, J., concurring in part
and dissenting in part). Judge Devlin concluded that
the majority did not adequately account for the truly
heinous and inflammatory nature of the word ‘‘nigger,’’
in particular, when, as in the present case, that
‘‘viciously hostile epithet,’’ which has deep roots in this
nation’s long and deplorable history of racial bigotry
and discrimination, is used by a white person with the
intent of demeaning and humiliating an African-Ameri-
can person. (Internal quotation marks omitted.) Id.,64–65 (Devlin, J., concurring in part and dissenting in
part). In rejecting the defendant’s assertion that his
speech was shielded from prosecution by the first
amendment, Judge Devlin explained that the defen-
dant’s words ‘‘were scathing insults that in many situa-
tions would provoke a reflexive, visceral response.’’ Id.,
67 (Devlin, J., concurring in part and dissenting in part).
Indeed, according to Judge Devlin, ‘‘if 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
is not breach of the peace,’’ then the fighting words
doctrine no longer has any ‘‘continued vitality’’ under
the first amendment. (Internal quotation marks omit-
ted.) Id., 68 (Devlin, J., concurring in part and dissenting
in part).
We subsequently granted the state’s petition for certi-
fication to appeal to decide whether the Appellate Court
was correct in holding that the defendant’s conviction
had to be reversed because the language that formed
the basis of that conviction was protected by the first
amendment.7 For the reasons that follow, we agree with
Judge Devlin and the trial court that, under the circum-
stances presented, the first amendment does not bar
the defendant’s conviction because his racist and
demeaning utterances were likely to incite a violent
reaction from a reasonable person in McCargo’s posi-
tion.8
For purposes of this appeal, there is no dispute that
the evidence adduced by the state at trial supports the
trial court’s factual findings. The sole issue we must
decide, then, is whether, contrary to the determination
of the Appellate Court, those factual findings and any
inferences that reasonably may be drawn therefrom are
sufficient to establish the defendant’s guilt beyond a
reasonable doubt. See, e.g., State v. Parnoff, 329 Conn.
386, 395, 186 A.3d 640 (2018).
Because the defendant’s conviction is predicated on
his verbal statements, our determination of the suffi-
ciency of the state’s case necessarily depends on
whether those statements deserve the protection of the
first amendment, despite their patently offensive and
objectionable nature. If they do, they cannot serve as
the basis for his conviction, which would have to be
reversed for evidentiary insufficiency. The defendant
having been charged with violating § 53a-181 (a) (5) by
use of allegedly ‘‘abusive . . . language’’; General Stat-
utes § 53a-181 (a) (5); see footnote 1 of this opinion;
we therefore must decide whether his language, which
was no doubt ‘‘abusive’’ under the commonly under-
stood meaning of that term, nonetheless is entitled to
constitutional protection. To make that determination,
we apply the judicial gloss necessary to limit the reach
of the breach of the peace statute to ensure that it
comports with constitutional requirements. See State
v. Baccala, supra, 326 Conn. 234, 251 (placing gloss
on § 53a-181 (a) (5) to avoid possibility of conviction
founded on constitutionally protected speech). For
present purposes, ‘‘the constitutional guarantee of free-
dom of speech requires that [§ 53a-181 (a) (5)] be con-
fined to language [that], under the circumstances of its
utterance, constitutes [unprotected] fighting words—
those [that] by their very utterance inflict injury or tend
to incite an immediate breach of the peace.’’ (Internal
quotation marks omitted.) State v. Beckenbach, 1 Conn.
App. 669, 678, 476 A.2d 591 (1984), rev’d on other
grounds, 198 Conn. 43, 501 A.2d 752 (1985). ‘‘Accord-
ingly, to establish the defendant’s violation of § 53a-181
(a) (5) . . . in light of its constitutional gloss, the state
was required to prove beyond a reasonable doubt that
the defendant’s words were likely to provoke an immi-
nent violent response’’ under the circumstances in
which they were uttered. (Citation omitted.) State v.
Baccala, supra, 250–51.
In view of the fact that the state’s case against the
defendant implicates his free speech rights, several
additional principles govern our review of the issue
presented. In certain cases, such as the present one, in
which ‘‘[the line between speech unconditionally guar-
anteed and speech that may be legitimately regulated]
must be drawn, the rule is that we examine for ourselves
the statements [at] issue and the circumstances under
which they were made to see if they are consistent
with the first amendment.’’ (Internal quotation marks
omitted.) Id., 251. In other words, ‘‘the inquiry into the
protected status of . . . speech is one of law, not fact.’’
(Internal quotation marks omitted.) State v. Parnoff,
supra, 329 Conn. 395. We therefore ‘‘apply a de novo
standard of review . . . .’’ (Internal quotation marks
omitted.) Id. Accordingly, we have ‘‘an obligation to
make an independent examination of the whole record
in order to make sure that the judgment does not consti-
tute a forbidden intrusion [in] the field of free expres-
sion.’’ (Internal quotation marks omitted.) Id., 395–96.
‘‘This independent scrutiny, however, does not autho-
rize us to make credibility determinations regarding
disputed issues of fact. Although we review de novo
the trier of fact’s ultimate determination that the state-
ments at issue constituted [fighting words], we accept
all subsidiary credibility determinations and findings
that are not clearly erroneous.’’ (Internal quotation
marks omitted.) Id., 396.
Recently, in State v. Baccala, supra, 326 Conn. 237–50,
we undertook a thoroughgoing examination of the roots
and scope of the fighting words doctrine, which was
first articulated by the United States Supreme Court
more than seventy-five years ago in Chaplinsky v. New
Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031(1942). See id., 569, 573 (holding that ‘‘God damned
racketeer’’ and ‘‘damned Fascist’’ were epithets likely
to provoke addressee to retaliate violently, thereby
causing breach of the peace (internal quotation marks
omitted)). As we explained in Baccala; see State v.
Baccala, supra, 237–38; although the first amendment
protects nearly all speech, no matter how detestable
or odious it may be, that protection does not extend
to the extremely narrow category of 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, supra, 573. In recognizing the fighting
words exception to the protection ordinarily afforded
speech under the first amendment, the court in
Chaplinsky reasoned that such words comprise ‘‘no
essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed
by the social interest’’ in maintaining the peace by pre-
venting the immediate incitement of violence. Id., 572.
It is by now well settled that 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. See State v. Baccala, supra, 326 Conn.
238. Consequently, whether words are fighting words
necessarily will depend on the particular circumstances
of their utterance. See id., 239; see also State v. Hoskins,
35 Conn. Supp. 587, 591, 401 A.2d 619 (App. Sess. 1978)
(‘‘The fighting words concept has two aspects. One
involves the quality of the words themselves. The other
concerns the circumstances under which the words
are used.’’ (Internal quotation marks omitted.)). This
contextual approach is also ‘‘a logical reflection of the
way the meaning and impact of words change over
time.’’ State v. Baccala, supra, 239; see also id. (‘‘[w]hile
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’’). Indeed, due
to changing social norms, public discourse has become
coarser in the years following Chaplinsky; id., 298 (Eve-
leigh, J., concurring in part and dissenting in part); such
that, today, ‘‘there are fewer combinations of words
and circumstances that are likely to fit within the fight-
ing words exception.’’9 State v. Parnoff, supra, 329
Conn. 413 (Kahn, J., concurring in the judgment); see
also id. (‘‘[a]s certain language is acceptable in more
situations, the borders of the fighting words exception
contract’’).
Against this broad jurisprudential backdrop in Bac-
cala, we sought to identify the kinds of considerations
likely to be relevant in determining, in any given case,
whether the words at issue constituted unprotected
fighting words. We explained: ‘‘A proper contextual
analysis requires consideration of the actual circum-
stances as perceived by a reasonable speaker and
addressee to determine whether there was a likelihood
of violent retaliation. . . . This necessarily includes a
consideration of a host of factors.
‘‘For example, the manner and circumstances in
which the words were spoken . . . [and] [t]he situa-
tion under which the words are uttered . . . . Thus,
whether the words were preceded by a hostile exchange
or accompanied by aggressive behavior will bear on
the likelihood of such a reaction. . . .
‘‘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. . . . Courts have, for example,
considered the age, gender, race, and status of the
speaker. . . . 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 [himself or herself], such as a
child, a frail elderly person, or a seriously disabled per-
son.
‘‘Although . . . the speech must be of such a nature
that it is likely to provoke the average person to retalia-
tion . . . when there are objectively apparent charac-
teristics that would bear on the likelihood of such a
response, many courts have considered the average
person with those characteristics. Thus, courts also
have taken into account the addressee’s age, gender,
and race. . . .
‘‘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. . . . [Consequently, because] a properly
trained [police] officer may reasonably be expected to
exercise a higher degree of restraint than the average
citizen . . . [we] hold police officers to a higher stan-
dard than ordinary citizens when determining the likeli-
hood of a violent response by the addressee.’’ (Citations
omitted; emphasis in original; footnotes omitted; inter-
nal quotation marks omitted.) State v. Baccala, supra,
326 Conn. 240–44.
In addition, ‘‘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 circumstances.’’ Id., 245. ‘‘Finally . . .
the fighting words exception is not concerned with
creating symmetrical free speech rights by way of estab-
lishing a uniform set of words that are constitutionally
proscribed. . . . 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 differen-
tiate between addressees who are more or less likely
to respond violently and speakers who are more or less
likely to elicit such a response.’’ (Citation omitted.)
Id., 249.
We then summarized: ‘‘Accordingly, a proper contex-
tual analysis requires consideration of the actual cir-
cumstances, as perceived by both a reasonable speaker
and addressee, to determine whether there is a likeli-
hood of violent retaliation. 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.’’ Id., 250. The starting point, however, for
any analysis of a claim involving the fighting words
doctrine must include an examination of the words
themselves and the extent to which they are understood
to be inflammatory or inciting.
With respect to the language at issue in the present
case, the defendant, who is white, uttered the words
‘‘fucking niggers’’ to McCargo, an African-American per-
son, thereby asserting his own perceived racial domi-
nance and superiority over McCargo with the obvious
intent of denigrating and stigmatizing him. When used
in that way, ‘‘[i]t is beyond question that the use of
the word ‘nigger’ is highly offensive and demeaning,
evoking a history of racial violence, brutality, and subor-
dination.’’ McGinest v. GTE Service Corp., 360 F.3d
1103, 1116 (9th Cir. 2004). Not only is the word ‘‘nigger’’
undoubtedly the most hateful and inflammatory racial
slur in the contemporary American lexicon; see id.; but
it is probably the single most offensive word in the
English language. See, e.g., Ayissi-Etoh v. Fannie Mae,
712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., con-
curring) (‘‘[The] epithet [‘nigger’] has been labeled, vari-
ously, a term that ‘sums up . . . all the bitter years of
insult and struggle in America,’ [L. Hughes, The Big Sea:
An Autobiography (Hill and Wang 2d Ed. 1993) p. 269],
‘pure anathema to African-Americans,’ Spriggs v. Dia-
mond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and
‘probably the most offensive word in English.’ [Random
House Webster’s College Dictionary (2d Rev. Ed. 2000)
p. 894]. See generally [A. Haley, Roots: The Saga of an
American Family (Doubleday 1976); [H. Lee, To Kill a
Mockingbird (J. B. Lippincott Co. 1960)]. . . . No other
word in the English language so powerfully or instantly
calls to mind our country’s long and brutal struggle to
overcome racism and discrimination against African-
Americans.’’ (Citation omitted.)); R. Kennedy, ‘‘The
David C. Baum Lecture: ‘Nigger!’ as a Problem in the
Law,’’ 2001 U. Ill. L. Rev. 935, 935 (although ‘‘[t]he Ameri-
can language is (and has long been) rife with terms of
ethnic, racial, and national insult: kike, mick, wop, nip,
gook, honkie, wetback, chink, [etc.] . . . ‘nigger is now
probably the most offensive word in English’ ’’ (foot-
note omitted)); Dictionary.com, available at https://
www.dictionary.com/browse/nigger?s=t (‘‘The term nigger
is now probably the most offensive word in English.
Its degree of offensiveness has increased markedly in
recent years, although it has been used in a derogatory
manner since at least the Revolutionary War.’’).
In fact, because of the racial prejudice and oppression
with which it is forever inextricably linked, the word
‘‘nigger,’’ when used by a white person as an assertion
of the racial inferiority of an African-American person,
‘‘is more than [a] mere offensive utterance . . . . No
word . . . is as odious or loaded with as terrible a
history.’’ (Internal quotation marks omitted.) Daso v.
Grafton School, Inc., 181 F. Supp. 2d 485, 493 (D. Md.
2002); see also In re John M., 201 Ariz. 424, 428, 36
P.3d 772 (App. 2001) (‘‘the term is generally regarded
as virtually taboo because of the legacy of racial hatred
that underlies the history of its use among whites’’
(internal quotation marks omitted)); In re Spivey, 345
N.C. 404, 414, 480 S.E.2d 693 (1997) (‘‘[N]o fact is more
generally known than that a white man who calls a
black man a ‘nigger’ within his hearing will hurt and
anger the black man and often provoke him to confront
the white man and retaliate. The trial court was free
to judicially note this fact.’’). The word being ‘‘one of
insult, abuse and belittlement harking back to slavery
days’’; (internal quotation marks omitted) Taylor v. Met-
zger, 152 N.J. 490, 510, 706 A.2d 685 (1998); it is uniquely
‘‘expressive of racial hatred and bigotry’’; (internal quo-
tation marks omitted) Swinton v. Potomac Corp., 270
F.3d 794, 817 (9th Cir. 2001), cert. denied, 535 U.S. 1018,
122 S. Ct. 1609, 152 L. Ed. 2d 623 (2002); and ‘‘degrading
and humiliating in the extreme . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Pryor v. United
Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015). For
all these reasons, the word rightly has been character-
ized as ‘‘the most provocative, emotionally-charged and
explosive term in the [English] language.’’ (Internal quo-
tation marks omitted.) Lee v. Superior Court, 9 Cal.
App. 4th 510, 513, 11 Cal. Rptr. 2d 763 (1992).
In addition to the defendant’s use of the word ‘‘nig-
gers,’’ other language and conduct by the defendant
further inflamed the situation, rendering it that much
more likely to provoke a violent reaction. First, the
defendant used the profane adjective ‘‘fucking’’—a
word of emphasis meaning wretched, rotten or
accursed10—to intensify the already highly offensive
and demeaning character of the word ‘‘niggers.’’ Like
the term ‘‘nigger,’’ however, the term ‘‘ ‘fucking nigger’
[is] . . . so powerfully offensive that . . . [it] inflicts
cruel injury by its very utterance. It is degrading, it is
humiliating, and it is freighted with a long and shameful
history of humiliation, the ugly effects of which con-
tinue to haunt us all.’’ Augis Corp. v. Massachusetts
Commission Against Discrimination, 75 Mass. App.
398, 409, 914 N.E.2d 916, appeal denied, 455 Mass. 1105,
918 N.E.2d 90 (2009). The defendant’s resort to such
language underscored for McCargo how especially
incensed and insulted the defendant was by virtue of his
having been issued the ticket by an African-American
parking official. By adding this additional measure of
contempt and disgust to the epithet, the defendant only
amplified the assaultive nature of the utterance, making
it even more hateful and debasing.
Second, the defendant, having directed the term
‘‘fucking niggers’’ at McCargo upon entering his vehicle
and learning that McCargo had ticketed him, was not
content just to leave and end the confrontation. Instead,
after McCargo had entered his vehicle and was starting
to drive out of the parking lot, the defendant circled
the lot twice, pulled up next to McCargo and, while
looking angrily at him, again uttered the term ‘‘fucking
niggers,’’ this time more loudly than before. The fact
that the defendant repeated this epithet only served to
exacerbate the provocative and hostile nature of the
confrontation. See Landrum v. Sarratt, 352 S.C. 139,
145, 572 S.E.2d 476 (App. 2002) (whether epithets were
uttered repeatedly is factor to be considered in fighting
words determination); see also State v. Szymkiewicz,
237 Conn. 613, 615–16, 623, 678 A.2d 473 (1996) (holding
that certain epithets were fighting words due, in part,
to repeated nature of utterances).
Third, the defendant employed additional, racially
offensive, crude and foreboding language during his
interaction with McCargo. Early on in the defendant’s
confrontation with McCargo, after learning that he had
been issued a ticket, the defendant became angry and
loudly asserted that the parking authority, McCargo’s
employer, was ‘‘fucking unbelievable.’’ Almost immedi-
ately thereafter, the defendant injected race into the
encounter, first stating that McCargo had ticketed him
because his car is white and then accusing McCargo of
issuing him the ticket because the defendant himself
is white. Next, as the defendant walked to his vehicle,
he uttered the words, ‘‘remember Ferguson.’’ In light
of the defendant’s other racially charged remarks, his
menacing invocation of the extremely controversial
shooting of a young, unarmed African-American man by
a white police officer had its intended effect: McCargo
understood that the defendant was raising the specter
of the same race based violence that reportedly had
occurred in Ferguson, Missouri. Considering the defen-
dant’s offensive remarks together, as we must; see, e.g.,
State v. Parnoff, supra, 329 Conn. 401 n.5 (fighting
words determination requires consideration of ‘‘the
totality of the attendant circumstances’’); the defen-
dant’s reference to Ferguson significantly escalated the
already fraught and incendiary confrontation.
Finally, in addition to his offensive and intimidating
utterances, certain conduct by the defendant further
manifested his extreme anger and hostility toward
McCargo. As the two men were speaking outside of
their respective vehicles, the defendant stepped toward
McCargo while moving his hands and body in an aggres-
sive and irate manner. Frangione witnessed the defen-
dant’s conduct and testified that, even from about sev-
enty feet away, the hostility of the encounter made her
nervous and upset. Moreover, after entering his car, the
defendant drove through the parking lot twice before
leaving, cutting through empty parking spaces so he
could pass by McCargo and again angrily confront him.
As we observed in Baccala, the fact that the defendant’s
words were accompanied by such aggressive and men-
acing behavior increased the likelihood of a violent
response. See State v. Baccala, supra, 326 Conn. 241.
As we previously discussed, speech will be deemed
to be unprotected fighting words only if it so ‘‘touch[es]
the raw nerves of [the addressee’s] sense of dignity,
decency, and personality . . . [that it is likely] to trig-
ger an immediate violent reaction’’; (internal quotation
marks omitted) State v. Beckenbach, supra, 1 Conn.
App. 678; a standard that, we have said, is satisfied
only if the speech is so inflammatory that it ‘‘is akin to
dropping a match into a pool of gasoline.’’ (Internal
quotation marks omitted.) State v. Parnoff, supra, 329
Conn. 394. We believe this to be the rare case in which
that demanding standard has been met. Born of vio-
lence, the word ‘‘nigger,’’ when uttered with the intent to
personally offend and demean, also engenders violence.
Indeed, such use of the word ‘‘nigger’’ aptly has been
called ‘‘a classic case’’ of speech likely to incite a violent
response. In re Spivey, supra, 345 N.C. 415; see also
State v. Hoshijo ex rel. White, 102 Haw. 307, 322, 76
P.3d 550 (2003) (‘‘The experience of being called ‘nigger’
. . . is like receiving a slap in the face. The injury is
instantaneous.’’ (Internal quotation marks omitted.)). It
therefore is unsurprising that many courts have rejected
first amendment challenges to convictions predicated
on the use of the word. See, e.g., In re John M., supra,
201 Ariz. 428 (‘‘lean[ing] out of a car window and
scream[ing] at an African-American woman, ‘fuck you,
you god damn nigger,’ before the car pulled into a
nearby . . . parking lot’’ was behavior likely to pro-
voke an immediate violent response); State v. Hoshijo
ex rel. White, supra, 321 (speech of student manager
of university basketball team who yelled ‘‘shut up you
[fucking] nigger,’’ ‘‘I’m tired of hearing your shit,’’ and
[s]hut your mouth or I’ll kick your ass’’ to African-
American spectator constituted unprotected fighting
words); In re J.K.P., Docket No. 108,617, 2013 WL
1010694, *1, *3–5 (Kan. App. March 8, 2013) (calling
boys in group of African-American children ‘‘niggers’’
during altercation with them constituted fighting words
that violated disorderly conduct statute) (decision with-
out published opinion, 296 P.3d 1140 (2013)); In re
Shane EE., 48 App. Div. 3d 946, 946–47, 851 N.Y.S.2d 711(2008) (threats and racial slurs, including ‘‘ ‘we shoot
niggers like you in the woods,’ ’’ were likely to provoke
immediate violent reaction and therefore constituted
fighting words); In re Spivey, supra, 408, 414 (‘‘loudly
and repeatedly address[ing] a black patron [at a bar]
. . . using the derogatory and abusive racial epithet
‘nigger’ ’’ was conduct that ‘‘squarely falls within the
category of unprotected [fighting words]’’); In re H.K.,
778 N.W.2d 764, 766–67, 770 (N.D. 2010) (following Afri-
can-American girl into bathroom during dance, calling
her ‘‘nigger’’ and threatening her constituted fighting
words likely to incite breach of peace); see also Bailey
v. State, 334 Ark. 43, 53–54, 972 S.W.2d 239 (1998) (stat-
ing that word ‘‘nigger’’ was fighting word in context
used); Lee v. Superior Court, supra, 9 Cal. App. 4th 518(upholding trial court’s denial of request by African-
American to change his name from Russell Lawrence
Lee to ‘‘Misteri Nigger’’ and stating that ‘‘men and
women . . . of common intelligence would under-
stand [that] . . . [the word nigger] likely [would] cause
an average addressee to fight’’ (internal quotation marks
omitted)). To whatever extent public discourse in gen-
eral may have coarsened over time; see, e.g., State v.
Baccala, supra, 326 Conn. 239; it has not eroded to the
point that the racial epithets used in the present case
are any less likely to provoke a violent reaction today
than they were in previous decades.
In support of his contention that the Appellate Court
correctly concluded that his language did not constitute
fighting words, the defendant argues that ‘‘a public offi-
cial [such as McCargo] is expected to exercise a greater
degree of self-restraint in the face of provocation than
is a civilian.’’ To support this assertion, however, the
defendant cites to cases involving offensive language
directed at police officers,11 in particular, Resek v. Hun-
tington Beach, 41 Fed. Appx. 57 (9th Cir. 2002), in which
the court, in concluding that the words ‘‘ ‘[t]hat’s fucked
up, those pigs can’t do that’ ’’ were not fighting words;
id., 59; went on to explain that, ‘‘[a]long with good
judgment, intelligence, alertness, and courage, the job
of police officers requires a thick skin. Theirs is not a
job for people whose feelings are easily hurt.’’ Id.Although we agree that police officers generally are
expected to exercise greater restraint than the average
citizen when confronted with offensive language or
unruly conduct, McCargo was not a police officer, and
his duties cannot fairly be characterized as similar to
those of a police officer. Additionally, McCargo’s testi-
mony concerning his five years of experience as a park-
ing enforcement officer—testimony in which he
explained that he never before had been on the receiv-
ing end of such hostile or offensive language or had
ever reported a prior incident to the police—suggests
that the abuse McCargo endured during his encounter
with the defendant well exceeded that which someone
in his position reasonably might be expected to face.
Consequently, although we do agree with the Appellate
Court that McCargo, like any parking enforcement offi-
cial, undoubtedly was aware that some members of the
public might well express frustration and even anger
upon receiving a ticket;12 see, e.g., State v. Liebenguth,
supra, 181 Conn. App. 54; we disagree that the average
African-American parking official would have been pre-
pared for and responded peaceably to the kind of racial
slurs, threatening innuendo, and aggressive behavior
with which McCargo was confronted.
It is true, of course, that McCargo did not react vio-
lently despite the highly inflammatory and inciting
nature of the defendant’s language and conduct. ‘‘[Even]
[t]hough the fighting words standard is an objective
inquiry . . . examining the subjective reaction of an
addressee, although not dispositive, may be probative of
the likelihood of a violent reaction.’’ (Internal quotation
marks omitted.) State v. Parnoff, supra, 329 Conn. 403.
Although McCargo acknowledged that the defendant’s
racial epithets had shocked and appalled him and that
he felt ‘‘very bad’’ and personally insulted by them, he
quite rightly opined that he had ‘‘handled [him]self very
well’’ under the circumstances. We fully agree, of
course, that McCargo handled the incident exception-
ally well, but we simply are not persuaded that the
average person would have exercised a similar measure
of self-control and professionalism under the same cir-
cumstances. Thus, the fact that McCargo did not react
violently in the face of the defendant’s malicious and
demeaning insults does not alter our conclusion with
respect to the likelihood of a violent reaction to that
language. See, e.g., State v. Hoshijo ex rel. White, supra,102 Haw. 322 (‘‘[It] is of no consequence . . . [that
violence was not precipitated], as the proper standard
is whether the words were likely to provoke a violent
response, not whether violence occurred. Plainly, there
is no requirement that violence must occur, merely that
there be a likelihood of violence. It is abundantly clear
on the facts of this case that there was a likelihood
of violence.’’ (Emphasis in original.)); Little Falls v.
Witucki, 295 N.W.2d 243, 246 (Minn. 1980) (‘‘The fact
that the addressee and object of the fighting words
exercised responsible and mature forbearance in not
retaliating cannot be relied [on] by [the] defendant to
escape responsibility for his own actions. . . . The
focus is properly on the nature of the words and the
circumstances in which they were spoken rather than
on the actual response. The actual response of the
addressee and object of the words is relevant, but not
determinative, of the issue of whether the utterances
meet the fighting words test.’’).
We also reject the defendant’s contention that his
use of the epithets ‘‘fucking niggers’’ cannot provide
the basis of his conviction in view of the fact that the
defendant and McCargo were in their vehicles on both
occasions when the defendant directed those slurs at
McCargo. Because the rationale underlying the fighting
words doctrine is the state’s interest in preventing the
immediate violent reaction likely to result when highly
offensive language is used to insult and humiliate the
addressee, ‘‘[t]he potential to elicit [such] an immediate
violent response exists only [when] the communication
occurs [face to face] or in close physical proximity.’’
Billings v. Nelson, 374 Mont. 444, 449, 322 P.2d 1039(2014). This requirement is satisfied in the present case
even though both men were in their vehicles when the
defendant uttered the slurs. When the defendant did so
for the first time, McCargo had pulled his vehicle so
close to the defendant’s vehicle that the defendant
accused McCargo of intentionally blocking him in. On
the second such occasion, the defendant turned directly
toward McCargo as he drove by McCargo’s vehicle and
then repeated the slur loud enough so that McCargo
would be sure to hear it. At this point, the men were
sufficiently close that McCargo could see the angry
expression on the defendant’s face and discern that he
had uttered the slur louder the second time than he
had the first time. At all relevant times, therefore, the
two men were in close proximity to and maintained
eye contact with one another, so that each could see
and hear the other clearly and without difficulty. In
such circumstances, it would have been easy enough
for McCargo to exit his vehicle and to charge after the
defendant, or to ram the defendant’s vehicle with his
own, or to pursue the defendant out of the parking lot
in his own vehicle. Unless the use of a vehicle by the
speaker makes it impossible for the addressee to retali-
ate immediately, courts routinely have held that the
likelihood of an immediate violent reaction is not dimin-
ished merely because the speaker or addressee was in
a vehicle when the offending utterances were made.
See, e.g., In re John M., supra, 201 Ariz. 428–29 (passen-
ger in car who yelled ‘‘ ‘fuck you, you god damn nigger’ ’’
before car pulled into parking lot was found to have
used fighting words likely to provoke violent reaction);
Billings v. Nelson, supra, 450 (‘‘The fact that [the defen-
dant and the driver] were in a car does not mean their
speech could not have incited an immediate violent
response from a listener on the street. . . . [The vic-
tim] was close enough to recognize the [speakers’] faces
and to hear their words clearly, even though they did
not holler them.’’ (Citation omitted; internal quotation
marks omitted.)); In re S.J.N-K., 647 N.W.2d 707, 709,
711–12 (S.D. 2002) (when passenger in vehicle who
repeatedly uttered ‘‘ ‘fuck you’ ’’ with accompanying
middle finger gesture while driver of vehicle cut diago-
nally across adjacent parking lot and in front of address-
ee’s vehicle, evidence established that passenger’s
words and gestures constituted unprotected fighting
words). But cf. Sandul v. Larion, 119 F.3d 1250, 1252,
1255 (6th Cir.) (when passenger in vehicle traveling at
high rate of speed shouted ‘‘ ‘[fuck] you’ ’’ and extended
his middle finger at abortion protesters who were
located considerable distance away, there was no face-
to-face contact between passenger and protesters, no
protester was offended or even acknowledged passen-
ger’s behavior, and entire incident was over in matter
of seconds, ‘‘it was inconceivable that [the passenger’s]
fleeting actions and words would provoke the type of
lawless action’’ necessary to satisfy fighting words stan-
dard), cert. dismissed, 522 U.S. 979, 118 S. Ct. 439, 139
L. Ed. 2d 377 (1997).
Finally, the defendant claims that the Appellate Court
correctly concluded that the present case is governed
by our analysis and conclusion in State v. Baccala,
supra, 326 Conn. 232, in which we determined that the
vulgar language at issue in that case did not constitute
fighting words. We reject this argument because Bac-
cala is distinguishable from the present case in a num-
ber of material respects.13
Before doing so, however, it is necessary to recite
the relevant facts of Baccala and the reasons we
reached the conclusion we did. Those facts, as
explained in our decision in that case, are as follows.
‘‘On the evening of September 30, 2013, the defendant
[Nina C. Baccala] telephoned the Stop & Shop super-
market in Vernon 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.
[Baccala] spoke with Tara Freeman, an experienced
assistant store manager who was in charge of the daily
operations at the supermarket . . . . Freeman
informed [Baccala] that the customer service desk
already had closed and that she was unable to access the
computer that processed Western Union transactions.
[Baccala] 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
terminated.
‘‘Despite Freeman’s statements to the contrary, [Bac-
cala] believed that as long as she arrived at the super-
market 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, [Baccala] arrived at the supermarket, which
was occupied by customers and employees. [She] pro-
ceeded toward the customer service desk located in
proximity to the registers for grocery checkout and
began filling out a money transfer form, even though
the lights at the desk were off. Freeman approached
[Baccala], 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
[Baccala] denied that she had called, Freeman recog-
nized her voice. After Freeman informed [Baccala], as
she had during the telephone call, that the customer
service desk was closed, [Baccala] 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. [Other]
employees . . . were standing nearby as this exchange
took place.
‘‘[Baccala] proceeded to loudly call Freeman a ‘fat
ugly bitch’ and a ‘cunt,’ and said ‘fuck you, you’re not a
manager,’ all while gesticulating with her cane. Despite
[Baccala’s] crude and angry expressions . . . Freeman
remained professional. She simply responded, ‘[h]ave
a good night,’ which prompted [Baccala] to leave the
supermarket.’’ Id., 235–36. Following a jury trial, Bac-
cala was convicted of breach of the peace in the second
degree in violation of § 53a-181 (a) (5). Id., 233–34, 236.
On appeal to this court, we agreed with Baccala that her
conviction was incompatible with the first amendment.
See id., 234–35.
We began our analysis of Baccala’s claim with the
observation that the language she used was both
extremely offensive and intentionally demeaning. Id.,
251. We nevertheless concluded that her utterances did
not rise to the level of fighting words because, under
the circumstances, they were not likely to trigger an
immediate violent response by the average person in
Freeman’s position. Id., 254. In reaching this conclusion,
we relied primarily on four considerations relative to
the circumstances of the encounter. First, the verbal
assault that Baccala launched against Freeman on the
telephone placed Freeman on notice of the possibility
that Baccala would resort to similar language when she
arrived at the supermarket a few minutes later. Id., 252.
Second, as a person in an ‘‘authoritative [position] of
management and control,’’ Freeman would be expected
to diffuse such a hostile situation by ‘‘model[ing] appro-
priate, responsive behavior, aimed at de-escalating the
situation,’’ both for the sake of other customers and
store personnel alike. Id., 253. Third, as a store manager,
Freeman had a measure of control over the premises
insofar as she could demand that Baccala leave if she
became abusive, threaten to have Baccala arrested for
trespassing if she didn’t leave, and follow through on
that threat if necessary. Id., 253. Fourth, there was no
reason to think that Freeman’s professional and
restrained response to Baccala’s offensive harangue
was atypical of the manner in which an average person
in Freeman’s position would have responded to the
same provocation under the same circumstances. See
id., 253–54.
In the present case, the first three of the foregoing
factors support the conclusion that the defendant’s
utterances were, in fact, fighting words. In contrast to
the notice Freeman had received with respect to the
likelihood of an angry and offensive, face-to-face out-
burst by Baccala, McCargo had no forewarning of the
verbal abuse that the defendant inflicted on him. Unlike
Freeman, McCargo was not acting in a supervisory
capacity with respect to the safety and well-being of
others. Nor did he have any degree of control over
the area in which his encounter with the defendant
took place.
Only the fourth factor we considered in Baccala—
the fact that Freeman did not resort to violence in
responding to the verbal provocation she confronted—
militates against a finding that the average person in
the same situation as McCargo, who also refrained from
any physical retaliation, likely would have had an imme-
diate violent response to the defendant’s verbal attack.
In Baccala, however, our conclusion that the response
of the average supermarket manager in Freeman’s situa-
tion probably would be no different from Freeman’s
necessarily was predicated on the existence of the first
three factors discussed—none of which is present here.
Moreover, in Baccala, we expressly acknowledged that
we might have reached a different conclusion if Baccala
had directed the same language at Freeman after Free-
man had completed work and left the supermarket. Id.,
253. Notably, that situation—in which Freeman would
not have been acting in a managerial or supervisory
capacity, had no real control over the relevant premises,
and was more or less alone with Baccala—is much
more like the circumstances McCargo found himself in
when he was accosted by the defendant.
Finally, we agree with the observation that ‘‘[r]acial
insults, relying as they do on the unalterable fact of the
victim’s race and on the history of slavery and race
discrimination in this country, have an even greater
potential for harm than other insults.’’ R. Delgado,
‘‘Words That Wound: A Tort Action for Racial Insults,
Epithets, and Name-Calling,’’ 17 Harv. C.R.-C.L. L. Rev.
133, 143 (1982); see id., 135–36 (explaining that such
insult ‘‘injures the dignity and self-regard of the person
to whom it is addressed, communicating the message
that distinctions of race are distinctions of merit, dig-
nity, status, and personhood’’); see also Matusick v.
Erie County Water Authority, 757 F.3d 31, 38 n.3 (2d
Cir. 2014) (observing that word ‘‘nigger’’ has ‘‘unique
. . . power to offend, insult, and belittle’’); Toussaint
v. Brigham & Women’s Hospital, Inc., 166 F. Supp. 3d
110, 116 n.4 (D. Mass. 2015) (‘‘[t]he word ‘nigger’ has
unique meaning that makes its use particularly egre-
gious’’). In light of the uniquely injurious and provoca-
tive nature of the term, we also agree that its use is all
the more likely to engender the kind of violent reaction
that distinguishes fighting words from the vast majority
of words that, though also offensive and provocative,
are nevertheless constitutionally protected.
For all the foregoing reasons, we conclude that the
language the defendant used to demean, intimidate and
anger McCargo were fighting words likely to provoke
a violent response from a reasonable person under the
circumstances. Because the first amendment does not
shield such speech from prosecution, the state was free
to use it to obtain the defendant’s conviction of breach
of the peace in the second degree, which, as we have
explained, is supported by the evidence. Because the
Appellate Court reached a contrary conclusion, that
portion of its judgment reversing the defendant’s con-
viction on that charge cannot stand.
The judgment of the Appellate Court is reversed with
respect to the defendant’s conviction of breach of the
peace in the second degree only and the case is
remanded to that court with direction to affirm the
judgment of conviction on that charge; the judgment
of the Appellate Court is affirmed in all other respects.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins, Kahn and Ecker. Although Justice McDonald was not
present when the case was argued before the court, he has read the briefs
and appendices, and listened to a recording of oral argument prior to partici-
pating in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** August 27, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
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 a risk
thereof, such person . . . (5) in a public place, uses abusive or obscene
language or makes an obscene gesture . . . .’’
2
The first amendment to the United States constitution provides in rele-
vant part: ‘‘Congress shall make no law . . . abridging the freedom of
speech . . . .’’
The first amendment prohibition against laws abridging the freedom of
speech is made applicable to the states through the due process clause
of the fourteenth amendment to the United States constitution. E.g., 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1, 116 S. Ct. 1495, 134
L. Ed. 2d 711 (1996)
3
The trial court also found the defendant guilty of tampering with a
witness in violation of General Statutes § 53a-151. See footnote 4 of this
opinion. On the charge of breach of the peace in the second degree, the
court sentenced the defendant to a term of imprisonment of six months,
execution suspended, followed by two years of probation with several condi-
tions, plus a $1000 fine; on the charge of tampering with a witness, the court
sentenced the defendant to a consecutive term of imprisonment of four
years, execution suspended, followed by four years of probation with the
same conditions and a $3000 fine. The defendant’s conviction of tampering
with a witness, which thereafter was upheld by the Appellate Court; see
State v. Liebenguth, 181 Conn. App. 37, 58, 186 A.3d 39 (2018); is not the
subject of this appeal. Unless otherwise noted, all references hereinafter to
the defendant’s conviction are to his conviction of breach of the peace in
the second degree.
4
The evidence adduced at trial also established that, on March 6, 2015,
while his criminal case was pending, the defendant sent an e-mail to
McCargo’s supervisor at the New Canaan Parking Department indicating
that he would press felony charges against McCargo and cause McCargo to
lose his job if he appeared in court at the defendant’s criminal trial and
testified against him. See State v. Liebenguth, supra, 181 Conn. App. 42.
The e-mail further stated that the defendant would not take such action
against McCargo if he did not appear in court to testify against the defendant.
Id. As the Appellate Court explained, ‘‘[t]he language of the defendant’s
e-mail clearly indicates that the defendant intended to induce McCargo not
to appear in court, insofar as it stated: ‘It goes without mention that if your
meter maid [McCargo] does not show up in court this case will be over and
everyone can go peacefully on their own way, no harm, no foul, no fallout’
and ‘[p]erhaps the judge will remand him to custody right then and there
from his witness chair? Obviously, not if he is not there.’ ’’ Id., 57–58. This
evidence provided the basis for the trial court’s guilty finding with respect
to the charge of tampering with a witness in violation of General Statutes
§ 53a-151. See footnote 3 of this opinion.
5
We note that the Appellate Court read this statement by the trial court
as reflecting a finding that the defendant took an aggressive stance, was
walking toward McCargo, and moving his hands in an aggressive manner
at the very same time he uttered the words ‘‘fucking niggers.’’ (Internal
quotation marks omitted.) State v. Liebenguth, supra, 181 Conn. App. 49.
As the Appellate Court also observed; see id.; such a finding would be
inconsistent with the trial testimony, which clearly established that the
defendant was seated in his vehicle both times he directed that epithet at
McCargo. In contrast to the Appellate Court, however, we do not understand
the trial court to have found that the conduct referred to occurred simultane-
ously with the offensive utterances. Rather, we read the decision’s reference
to that conduct as consistent with the record; see, e.g., Lauer v. Zoning
Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991) (reviewing court reads
arguably ambiguous trial court record to support, rather than to undermine,
its judgment); that is, as reflecting a finding by the trial court only that the
conduct was relevant to the broader context in which the defendant’s epi-
thets were uttered, which it certainly was. In any event, we, like the Appellate
Court, resolve the issue on appeal predicated on the testimony adduced at
trial, which is not disputed for purposes of this appeal.
6
As we discuss more fully hereinafter, in Baccala, we concluded that the
conviction of the defendant in that case—also for breach of the peace in
the second degree in violation of § 53a-181 (a) (5)—had to be reversed,
despite the vile and personally demeaning nature of the gender based epi-
thets on which that conviction was predicated, in light of our determination
that the defendant’s speech was entitled to first amendment protection
because it was not likely to evoke a violent response from a reasonable
person under the circumstances presented. See State v. Baccala, supra, 326
Conn. 251–56.
7
Specifically, we certified the following issue: ‘‘Did the Appellate Court
properly conclude that the defendant’s conviction for breach of the peace
in the second degree had to be reversed in light of the holding in [Baccala]
. . . ?’’ (Citation omitted.) State v. Liebenguth, supra, 330 Conn. 901.
8
The defendant makes no claim that, in the event we disagree with the
Appellate Court that his speech was protected by the first amendment to
the United States constitution, his conviction nevertheless was barred by
the free speech provisions of article first, §§ 4 and 5, of the Connecticut
constitution. We therefore have no occasion to consider whether the fighting
words exception to the protection afforded speech under the first amend-
ment also constitutes an exception to the free speech guarantees of the
state constitution and, if so, whether its scope is coextensive with that of
the exception recognized under the first amendment.
9
In this regard, we observed in Baccala that, ‘‘[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 omitted; internal quotation marks
omitted.) State v. Baccala, supra, 326 Conn. 239. Although the United States
Supreme Court has not upheld a conviction under the fighting words doctrine
since Chaplinsky; e.g., C. Calvert, ‘‘First Amendment Envelope Pushers:
Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg,
Trump, & Spencer,’’ 51 Conn. L. Rev. 117, 149 (2019); and, despite scholarly
criticism of the doctrine; see, e.g., W. Reilly, Note, ‘‘Fighting the Fighting
Words Standard: A Call for Its Destruction,’’ 52 Rutgers L. Rev. 947, 947–49
(2000); Note, ‘‘The Demise of the Chaplinsky Fighting Words Doctrine: An
Argument for Its Interment,’’ 106 Harv. L. Rev. 1129, 1140–46 (1993); the
court has never disavowed the doctrine and, from time to time, has referred
to it, albeit in dicta, as one of the few historic exceptions to the first
amendment’s prohibition against content based restrictions on speech. See,
e.g., Brown v. Entertainment Merchants Assn., 564 U.S. 786, 791, 131 S.
Ct. 2729, 180 L. Ed. 2d 708 (2011) (‘‘From 1791 to the present . . . the [f]irst
[a]mendment has permitted restrictions [on] the content of speech in a
few limited areas, and has never include[d] a freedom to disregard these
traditional limitations. . . . These limited areas . . . such as . . . fighting
words . . . represent well-defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to raise
any [c]onstitutional problem . . . .’’ (Citations omitted; internal quotation
marks omitted.)); Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155
L. Ed. 2d 535 (2003) (‘‘[A] [s]tate may punish those words [that] by their
very utterance inflict injury or tend to incite an immediate breach of the
peace. . . . [C]onsequently . . . fighting words—those personally abusive
epithets [that], when addressed to the ordinary citizen, are, as a matter of
common knowledge, inherently likely to provoke a violent reaction—are
generally proscribable under the [f]irst [a]mendment.’’ (Citations omitted;
internal quotation marks omitted.)). In any event, the defendant makes no
claim that the fighting words doctrine is a dead letter for federal constitu-
tional purposes; he claims, rather, that the words he used were not fighting
words and, consequently, that his conviction based on those words is prohib-
ited by the first amendment. In addition, as we previously noted; see footnote
8 of this opinion; the defendant does not raise a claim under the state
constitution.
10
New Dictionary of American Slang (R. Chapman ed., 1986) p. 151.
11
The defendant relies on the following cases in which the court deter-
mined that certain words directed at a police officer were not fighting words:
Kennedy v. Villa Hills, 635 F.3d 210, 215–16 (6th Cir. 2011) (calling police
officer ‘‘ ‘son of a bitch’ ’’ and ‘‘a ‘fat slob’ ’’); Johnson v. Campbell, 332 F.3d
199, 203, 215 (3d Cir. 2003) (calling police officer who was conducting stop
‘‘ ‘son of a bitch’ ’’); Duran v. Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990)
(shouting profanities and making obscene gestures at police officer); Bar-
boza v. D’Agata, 151 F. Supp. 3d 363, 367, 371–72 (S.D.N.Y. 2015) (‘‘[f]uck
your shitty town bitches’’ written on payment form accompanying speeding
ticket); State v. Nelson, 38 Conn. Supp. 349, 351 n.1, 355, 448 A.2d 214 (App.
Sess. 1982) (calling police officer ‘‘ ‘fucking asshole, a fucking pig’ ’’).
12
We note, however, that there is nothing in the record to indicate that
McCargo received any special training on how to deal with persons who
become unusually irate or insulting upon being issued a parking ticket.
13
We note that the defendant further contends that the trial court’s require-
ment that he undergo a cultural diversity course prescribed and approved
by his probation officer evidences that the trial court’s guilty finding ‘‘consti-
tutes a unique and unprecedented attempt to criminalize incivility or racist
attitudes.’’ We disagree. The probationary condition falls squarely within
the court’s considerable sentencing discretion, and, indeed, it is obviously
well-founded in light of the defendant’s conceded language and conduct.