State v. Baccala

 STATE v. BACCALA—CONCURRENCE AND DISSENT
EVELEIGH, J., with whom ROGERS, C. J., and
ESPINOSA, J., join, concurring in part and dissenting
in part. I respectfully dissent from the majority’s conclu-
sion that the speech at issue in the present case did
not constitute unprotected fighting words under the
first amendment to the United States constitution. In
my view, State v. Szymkiewicz, 237 Conn. 613, 678 A.2d
478 (1996), is binding on this court. Indeed, the facts
underlying present case, in my view, provide even
stronger support for a breach of peace conviction. Fur-
thermore, the defendant, Nina C. Baccala, represented
to this court in her brief that she ‘‘does not . . . chal-
lenge . . . the scope of the fighting words exception
under the first amendment.’’ We should take her at
her word. While I acknowledge that the defendant has
argued that this court should do its own analysis under
the first amendment, she never retracted this position.
The briefing was cast in the light of a claim that our
state constitution provided greater protection than the
federal constitution and, accordingly, contained an
analysis pursuant to this court’s opinion in State v.
Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992).
The majority does not deem such an analysis necessary
in view of its position that the first amendment controls.
I am of the opinion that the briefing of this issue was
woefully inadequate for a constitutional claim. There-
fore, I would not have reached that issue. Further, after
conducting an analysis under Geisler, I would conclude
that our state constitution does not afford greater pro-
tection then the federal constitution. In the final section,
I agree with the defendant that the charge was not
sufficient on the issue of imminence and, therefore, I
would reverse the trial court’s judgment and remand
the case for a new trial.
I
FIRST AMENDMENT ANALYSIS
The jury reasonably could have found the following
facts. On the evening of September 30, 2013, the defen-
dant drove to a grocery store in Vernon with the inten-
tion of retrieving a money transfer. Prior to arriving at
the store, the defendant phoned ahead to inquire
whether she would be able to retrieve the money trans-
fer.1 After arriving at the store, the defendant proceeded
to the service desk where she began to fill out a money
transfer form. Tara Freeman, an assistant manager at
the store, approached the defendant and informed her
that she would be unable to retrieve her money transfer
because she lacked the authority to access the money
transfer machine. The defendant became very upset
and asked to speak to the manager. Freeman replied
that she was the manager, pointing to her name tag and
picture on the wall as proof. At this point, the defendant
became belligerent, raised her cane toward Freeman,2
and began directing every swear word ‘‘in the book’’ at
Freeman. The defendant said ‘‘fuck you’’ to Freeman,
stated that Freeman was not the manager, and called
Freeman a ‘‘fat ugly bitch’’ and a ‘‘cunt.’’ The defendant,
who did not substantially controvert this account of
her tirade,3 testified that she directed such language at
Freeman because she felt hurt as a result of purportedly
being misled about the availability of money order ser-
vices and ‘‘was trying to hurt back.’’ Freeman replied
by saying ‘‘have a good night’’ to the defendant, who
responded by mumbling and saying some ‘‘choice
words’’ as she departed the store. The entire encounter
lasted between fifteen and twenty minutes.
After an investigation by the police, the defendant
was arrested and charged with, inter alia,4 breach of
the peace in the second degree in violation of General
Statutes § 53a-181 (a) (5). The case was tried to a jury,
which rendered a verdict of guilty on that charge. The
trial court rendered a corresponding judgment of con-
viction and sentenced the defendant to twenty-five days
of incarceration.
In my view, even if this court were to reach the merits
of a claim under the first amendment, it should fail.
Indeed, it is readily apparent that the defendant did not
raise such a claim under the federal constitution as an
alternative to her state constitutional analysis because
State v. Szymkiewicz, supra, 237 Conn. 613, would be
dispositive of such a claim.
The facts of Szymkiewicz are strikingly similar to
the facts of the present case. In that case, the defendant
was shopping at a grocery store in Waterford when
she was approached by a store detective. Id., 615. The
detective asked the defendant to accompany her to the
store manager’s office on the mezzanine level. Id. In
the office, the detective accused the defendant of shop-
lifting certain items from the store. Id. Upon hearing the
accusation, the defendant ‘‘became loud and abusive,’’
and, consequently, the police were called. (Internal quo-
tation marks omitted.) Id. After arriving and conducting
a brief investigation, a police officer arrested the defen-
dant for shoplifting. Id. The officer handcuffed the
defendant and led her down the stairs. Id. As the defen-
dant was escorted down the stairs from the manager’s
office by the police officer and the store detective, she
said ‘‘[f]uck you’’ several times. (Internal quotation
marks omitted.) Id. In addition, she said the following
to the store detective: ‘‘You fucking bitch. I hope you
burn in hell for all eternity.’’ (Internal quotation marks
omitted.) Id., 616. She also made an unspecified threat
to the store detective. Id. It was also observed that a
crowd had begun to form at the bottom of the stairs.
Id., 623. On the basis of those facts, the defendant was
convicted of violating § 53a-181 (a) (1).5
In affirming the breach of the peace conviction, this
court concluded that the defendant’s speech consti-
tuted fighting words. Id. This court adumbrated the
speech of the defendant and the circumstances in which
they occurred and concluded that ‘‘the defendant’s lan-
guage could have aroused a violent reaction’’ by the
addressees—namely, the store detective and the crowd.
Id. The defendant was described as ‘‘heated,’’ made an
unspecified threat,6 and directed her hateful, provoca-
tive language to those around her as she was escorted
outside. Id. Because the test is whether the speech
would have caused an average person to respond with
violence, the court did not discuss the circumstances
of the addressees or the extent to which such circum-
stances implicated the likelihood of the addressees to
respond with immediate violence. Id., 620–24.
In the present case, even if the defendant had ade-
quately briefed her sufficiency of the evidence claim
under the federal fighting words standard, on the basis
of Szymkiewicz, I would conclude that the evidence is
sufficient to sustain a conviction. The defendant, in a
belligerent and angry manner, used harsh and scornful
language designed to debase Freeman. The defendant
insulted Freeman on the basis of her gender, body com-
position, and apparent suitability for her position as a
manager of the store. The defendant said ‘‘fuck you’’ to
Freeman and called her a ‘‘fat ugly bitch.’’ The defendant
also used the word ‘‘cunt,’’ which is generally recog-
nized as a powerful, offensive, and vile term. During
this encounter, the defendant gesticulated her cane at
Freeman. Freeman testified that, as a result of her
encounter with the defendant, both inside the store and
as the result of a later telephone call, she was provided
additional security. I would conclude, consistent with
Szymkiewicz, that the evidence was sufficient to sus-
tain the defendant’s conviction.
The majority, however, despite the fact that the defen-
dant disclaimed a first amendment argument, reverses
the judgment of conviction on that basis. I do not dis-
pute that the factual circumstances surrounding the
speech at issue are relevant. See State v. Szymkiewicz,
supra, 237 Conn. 620 (‘‘the words used by the defendant
here and the circumstances in which they were used
classify them as ‘fighting words’ ’’). The majority’s gran-
ular level dissection of the circumstances of the
addressee in the present case, however, is inconsistent
with our case law and is maladapted to the nature of
fighting words. From its inception, the federal fighting
words standard has embraced a context based
approach to determining whether speech constitutes
fighting words. See Chaplinsky v. New Hampshire, 315
U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) (noting
that certain speech may constitute fighting words when
‘‘said without a disarming smile’’ [internal quotation
marks omitted]). Nevertheless, the test is whether the
language would provoke an ‘‘average person’’ to
respond with immediate violence. (Internal quotation
marks omitted.) Texas v. Johnson, 491 U.S. 397, 409,
109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989); see also State
v. Szymkiewicz, supra, 237 Conn. 620. Context is, of
course, critical to understanding what the speaker is
expressing. First and foremost, the fighting words must
be personally provocative. See Cohen v. California, 403
U.S. 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (noting
that speech was not used ‘‘in this instance’’ in personally
provocative manner). Directing the words ‘‘fuck the
draft’’ to no one in particular and burning a flag are
examples of speech that, in context, would not be
deemed unprotected fighting words because such
speech is not the communication of a personally pro-
vocative insult. Texas v. Johnson, supra, 398; see also
Cohen v. California, supra, 20. When the abusive lan-
guage is directed to a particular person, the level of
outrage certain words are likely to engender is corre-
lated to how insulting certain words are to that person.
Language that targets certain personal attributes that
have served as bases for subjugation and dehumaniza-
tion when directed to individuals with those attributes
is among the most harmful. For this reason, racial epi-
thets are more likely fighting words when addressed
to a member of the race which the epithet is designed
to demean. See 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’’). Context is necessary to determine if and
to what extent speech is offensive and provocative to
the addressee.
The circumstances of the addressee are not wholly
irrelevant to the determination of whether a defendant’s
speech is protected. For there to be an immediate vio-
lent reaction by the addressee, there must be some
physical proximity between the speaker and the
addressee. See Hershfield v. Commonwealth, 14 Va.
App. 381, 384, 417 S.E.2d 876 (1992) (distance and barri-
ers between defendant and addressee precluded imme-
diate violent reaction); see also Anniskette v. State,
489 P.2d 1012, 1014–15 (Alaska 1971) (finding abusive
language uttered to state police officer over phone not
fighting words); State v. Dugan, 369 Mont. 39, 54, 303
P.3d 755 (holding speech not to be fighting words when
defendant called victim services advocate ‘‘ ‘fucking
cunt’ ’’ over the phone), cert. denied, U.S. , 134
S. Ct. 220, 187 L. Ed. 2d 143 (2013). Without this physical
proximity, there is simply no threat of immediate vio-
lence from abusive language.
Evaluating whether the circumstances of the
addressee are such that he or she would be likely to
respond with immediate violence is a more delicate
matter. Although furnished with more than one oppor-
tunity, the United States Supreme Court has declined
to adopt a rule that the fighting words doctrine applies
more narrowly to speech addressed to a police officer.
In a concurring opinion, Justice Powell once suggested
that ‘‘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; inter-
nal quotation marks omitted.) Lewis v. New Orleans,
415 U.S. 130, 135, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974).
Thirteen years later, Justice Brennan, writing for the
court, took note of Justice Powell’s suggestion, but
couched his language in extreme caution. Houston v.
Hill, 482 U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d 398
(1987). Far from embracing a narrower rule for speech
directed at police officers, the court observed that ‘‘in
Lewis, Justice Powell suggested that even the fighting
words exception recognized in Chaplinsky . . . might
require a narrower application in cases involving words
addressed to a police officer, because a properly trained
officer may reasonably be expected to exercise a higher
degree of restraint than the average citizen . . . .’’
(Emphasis added; internal quotation marks omitted.)
Id. The court demonstrated this reluctance for a nar-
rower application despite stressing the importance of
individual freedom to challenge police action. See id.,
462–63. (‘‘[t]he freedom of individuals verbally to
oppose or challenge police action without thereby risk-
ing arrest is one of the principal characteristics by
which we distinguish a free nation from a police state’’).
Nevertheless, this court has expressly adopted a nar-
rower application of the fighting words standard for
speech addressed to police officer, at least with respect
to § 53a-181 (a) (3). See State v. DeLoreto, 265 Conn.
145, 169, 827 A.2d 671 (2003).7
The reluctance of the United States Supreme Court
to embrace an approach that more closely evaluates
the circumstances of the addressee is understandable
given the fact that that such an approach is maladapted
to the nature of fighting words. Fighting words are
unprotected speech because they tend to provoke an
immediate, visceral response in a face to face situation
‘‘because of their raw effect.’’ State v. Caracoglia, 78
Conn. App. 98, 110, 826 A.2d 192, cert. denied, 266 Conn.
903, 832 A.2d 65 (2003); see also State v. Swoboda, 658
S.W.2d 24, 26 (Mo. 1983) (‘‘such words must be likely
to incite the reflexive response in the person to whom,
individually, the remark is addressed’’ [emphasis
added]). Ideally, no one would ever respond to abusive
speech with violence especially given the likelihood of
criminal, professional, or other collateral consequences
that could result from violent conduct. Nevertheless,
fighting words are so pernicious that they tend to pro-
voke an ordinary person to respond viscerally to scath-
ing insults in a manner that is invariably irrational—that
is, with violence. For this reason, a post hoc analysis of
the circumstances of the addressee will not accurately
reflect whether an ordinary person would reflexively
respond with some degree of violence8 to a defendant’s
abusive language.
There is simply no evidence in the record regarding
what the average store manager knows or does not
know. It is interesting that the majority uses the store
as a line of demarcation, noting that ‘‘a different conclu-
sion might be warranted if the defendant directed the
same words at Freeman after Freeman ended her work
day and left the [store], depending on the circumstances
presented.’’ Such a demarcation was never mentioned
in Szymkiewicz. The majority further concludes that
‘‘it would be unlikely for an on duty store manager in
Freeman’s position to respond in kind to the defendant’s
angry diatribe with similar expletives’’ and that ‘‘[i]t
would be considerably more unlikely for a person in
Freeman’s position . . . to respond with a physical act
of violence.’’ It is interesting that the jury in the present
case found precisely what the majority deems so
unlikely. This is a new test for fighting words directed
at the position of the person to whom the words are
directed. The United States Supreme Court has not gone
this far. In view of the fact that this matter is analyzed
under the first amendment, I would follow the case law
of the United States Supreme Court and require that
the test be restricted to that of the average person. See
Texas v. Johnson, supra, 491 U.S. 409.9
II
INADEQUATE BRIEFING
I next turn to whether the evidence was sufficient to
sustain the defendant’s conviction for violation of § 53a-
181 (a) (5). The state claims that the evidence is suffi-
cient to sustain the conviction because the defendant’s
abusive epithets were likely to provoke an ordinary
person to respond with immediate violence. The defen-
dant, however, rested her entire sufficiency of the evi-
dence claim on her position that the state constitution
protected the defendant’s speech because she did not
expressly challenge Freeman to a fight. Indeed, the
defendant expressly represented that she ‘‘does not
. . . challenge . . . the scope of the fighting words
exception under the first amendment.’’ Thereafter, in
a mere footnote, the defendant indicates that she ‘‘does
not concede’’ that her speech was unprotected by the
first amendment and claims that we must analyze the
sufficiency of the evidence under the first amendment
standard if that standard is adopted as a matter of state
constitutional law. The defendant, however, does not
provide such an analysis herself. Similarly, in her reply
brief, the defendant claims, without citing a single case,
that whether her speech is protected in this case is
based on whether an ordinary store manager, rather
than an ordinary person, would have responded with
immediate violence. Because the defendant has failed
to adequately brief the issue of whether the evidence
in this case is sufficient under the federal fighting words
standard, I would decline to address it.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs.’’ (Citation omitted; internal
quotation marks omitted.) State v. Buhl, 321 Conn. 688,
724, 138 A.3d 868 (2016). ‘‘Claims are also inadequately
briefed when they . . . consist of conclusory asser-
tions . . . with no mention of relevant authority and
minimal or no citations from the record.’’ (Internal quo-
tation marks omitted.) Rock v. University of Connecti-
cut, 323 Conn. 26, 33, 144 A.3d 420 (2016); see also
Getty Properties Corp. v. ATKR, LLC, 315 Conn. 387,
413–14, 107 A.3d 931 (2015).
Moreover, we have recently emphasized the impor-
tance of adequate briefing of free speech issues due to
the analytic complexity of the subject matter. See State
v. Buhl, supra, 321 Conn. 726. ‘‘[F]irst [a]mendment
jurisprudence is a vast and complicated body of law
that grows with each passing day and involves compli-
cated and nuanced constitutional concepts.’’ (Internal
quotation marks omitted.) Id. In Buhl, this court
affirmed the Appellate Court’s decision not to review
the defendant’s free speech claims because those claims
were inadequately briefed. Id. Specifically, we noted
that the defendant in that case dedicated one and one-
half pages and cited three to six cases for each of two
separate expressive liberties issues. Id., 726–27.
In the present case, the defendant provided a thor-
ough and thoughtful Geisler analysis in support of her
claim that the free speech provisions of the Connecticut
constitution provided additional protections that
encompassed her speech. As the defendant acknowl-
edges, the federal constitutional standard is the floor
for individual rights. Trusz v. UBS Realty Investors,
LLC, 319 Conn. 175, 191, 123 A.3d 1212 (2015). Natu-
rally, if the defendant truly contended this minimum
standard was unmet, an analysis of the governing law
under the first amendment would be necessary to evalu-
ate that claim. Instead, the defendant simply maintains
that she ‘‘does not concede’’ that her language was not
protected by the first amendment. In a mere footnote,
she maintains that if this court ‘‘concludes that the
Connecticut constitution is coextensive with the
[United States] constitution, [it] must still decide
whether the evidence was sufficient under the standard
that it delineates.’’ Similarly, in her reply brief and with-
out citation to any case law, the defendant claims that
this court should consider whether an ordinary grocery
store manager would have responded to the defendant’s
speech with imminent violence. The defendant does
not, however, cite any case law in support of this formu-
lation of the first amendment standard. Even in her
reply brief, after the state had made its claim that the
standard under the first amendment is whether an ordi-
nary person would respond with immediate violence,
the defendant declined to respond with any analysis or
authority to the contrary. Given the foregoing circum-
stances, I would conclude that any federal constitu-
tional claim has been waived as a result of
inadequate briefing.10
III
GEISLER ANALYSIS
The defendant claims that the evidence was not suffi-
cient to support her conviction of breach of peace.
Specifically, the defendant claims that the jury could
not have properly determined that her speech fell within
the scope of the fighting words exception to the Con-
necticut constitution’s free speech provisions.11 The
defendant claims that the Connecticut constitution
affords broader protection for speech than the United
States constitution in that the scope of the fighting
words doctrine is narrowly circumscribed under the
Connecticut constitution to speech that challenges the
listener to fight. According to the defendant, because
the record is devoid of any evidence of a challenge to
fight, there was not sufficient evidence to support her
conviction. The state maintains that the fighting words
doctrine under the state constitution is coterminous
with the United States constitution and, therefore, the
evidence is sufficient to support the defendant’s convic-
tion. I agree with the state.
I begin by setting forth this court’s standard of review
in free speech cases. The ‘‘inquiry into the protected
status of . . . speech is one of law, not fact.’’ (Internal
quotation marks omitted.) DiMartino v. Richens, 263
Conn. 639, 661, 822 A.2d 205 (2003); see also Connick
v. Myers, 461 U.S. 138, 148 n.7, 103 S. Ct. 1684, 75 L.
Ed. 2d 708 (1983). ‘‘This [c]ourt’s duty is not limited to
the elaboration of constitutional principles; we must
also in proper cases review the evidence to make certain
that those principles have been constitutionally applied.
This is such a case, particularly since the question is
one of alleged trespass across the line between speech
unconditionally guaranteed and speech which may
legitimately be regulated.’’ (Internal quotation marks
omitted.) State v. DeLoreto, supra, 265 Conn. 152–53.
In cases where the line must be drawn, this court under-
takes an examination of the speech at issue, along with
the circumstances under which it was made, to see
whether it is of a nature which the relevant constitu-
tional free speech provisions protect. See id., 153. This
court ‘‘must make an independent examination of the
whole record . . . so as to [be sure] that the judgment
does not constitute a forbidden intrusion on the field
of free expression.’’ (Internal quotation marks omitted.)
Id. Although the ultimate conclusion with respect to
whether the speech at issue constitutes fighting words
is subject to de novo review, this court accepts ‘‘all
subsidiary credibility determinations and findings that
are not clearly erroneous.’’ State v. Krijger, 313 Conn.
434, 447, 97 A.3d 946 (2014).
To the extent that § 53a-181 (a) (5) proscribes con-
duct consisting of pure speech, this court and the Appel-
late Court have applied a judicial gloss in order to
ensure that the statute comports with the strictures of
the first amendment. See State v. Caracoglia, supra, 78
Conn. App. 110; see also State v. Szymkiewicz, supra,
237 Conn. 620–21 (applying fighting words construction
to § 53a-181 [a] [1], which prohibits ‘‘violent, threatening
or tumultuous behavior’’); cf. State v. Indrisano, 228
Conn. 795, 812, 640 A.2d 986 (1994) (applying fighting
words construction to provision of disorderly conduct
statute, General Statutes § 53a-182 [a] [1], prohibiting
‘‘violent, threatening or tumultuous behavior’’).
The fighting words exception to the broad free speech
protection afforded by the first amendment was first
articulated in Chaplinsky v. New Hampshire, supra,
315 U.S. 568. In that case, the United States Supreme
Court held that states are permitted to punish the use of
certain narrow classes of speech, including ‘‘ ‘fighting’
words—those which by their very utterance inflict
injury or tend to incite an immediate breach of the
peace.’’ Id., 572. As discussed previously in this concur-
ring and dissenting opinion, fighting words are ‘‘speech
that has a direct tendency to cause imminent acts of
violence or an immediate breach of the peace. Such
speech must be of such a nature that it is likely to
provoke the average person to retaliation.’’ (Internal
quotation marks omitted.) State v. Szymkiewicz, supra,
237 Conn. 620; see also Texas v. Johnson, supra, 491
U.S. 409. In order to constitute fighting words, the abu-
sive language must be ‘‘directed to the person of the
hearer.’’ (Internal quotation marks omitted.) Cohen v.
California, supra, 403 U.S. 20. Accordingly, in order to
comport with the requirements of the first amendment,
§ 53a-181 (a) (5) ‘‘proscribes fighting words that tend
to induce immediate violence by the person or persons
to whom the words are uttered because of their raw
effect.’’ State v. Caracoglia, supra, 78 Conn. App. 110.
‘‘[F]ederal constitutional and statutory law estab-
lishes a minimum national standard for the exercise of
individual rights and does not inhibit state governments
from affording higher level of protection for such
rights.’’ (Internal quotation marks omitted.) Trusz v.
UBS Realty Investors, LLC, supra, 319 Conn. 191. In
order to determine whether the Connecticut constitu-
tion affords broader protection than the national mini-
mum, this court analyzes the familiar Geisler factors:
‘‘(1) the ‘textual’ approach—consideration of the spe-
cific words in the constitution; (2) holdings and dicta
of this court and the Appellate Court; (3) federal prece-
dent; (4) the ‘sibling’ approach—examination of other
states’ decisions; (5) the ‘historical’ approach—includ-
ing consideration of the historical constitutional setting
and the debates of the framers; and (6) economic and
sociological, or public policy, considerations.’’ State v.
Linares, 232 Conn. 345, 379, 655 A.2d 737 (1995).12
A
I begin my analysis by looking at the text of the
relevant constitutional provisions. Article first, § 4, of
the Connecticut constitution provides that ‘‘[e]very citi-
zen may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that
liberty.’’ Article first, § 5, of the Connecticut constitu-
tion provides that ‘‘[n]o law shall ever be passed to
curtail or restrain the liberty of speech or of the press.’’
The defendant contends that the protection of speech
‘‘on all subjects’’ extends to the ‘‘profane name-calling’’
in which the defendant indulged in the present case.
The state points out that the protection afforded by
article first, § 4, of the Connecticut constitution is not
unbounded, but rather is circumscribed by the qualify-
ing language ‘‘being responsible for the abuse of that
liberty.’’
Broadly speaking, we have previously observed ‘‘that
because, unlike the first amendment to the federal con-
stitution: (1) article first, § 4, of the Connecticut consti-
tution includes language protecting free speech on all
subjects; [and] (2) article first, § 5, of the Connecticut
constitution uses the word ever, thereby providing addi-
tional emphasis to the force of the provision . . . and
therefore sets forth free speech rights more emphati-
cally than its federal counterpart . . . .’’ (Citations
omitted; internal quotation marks omitted.) Trusz v.
UBS Realty Investors, LLC, supra, 319 Conn. 192–93.
Specifically, this court noted that the state constitu-
tional liberty to speak freely on all subjects set forth
in § 4 ‘‘support[ed] the conclusion that the state consti-
tution protects employee speech in the public work-
place on the widest possible range of topics, as long
as the speech does not undermine the employer’s legiti-
mate interest in maintaining discipline, harmony and
efficiency in the workplace.’’ Id., 193.
Nevertheless, the liberty to speak freely on all sub-
jects is qualified by the plain terms of article first, § 4, of
the Connecticut constitution, which holds each citizen
‘‘responsible for the abuse of that liberty.’’ This court
has observed that this provision operates as a limitation
upon the broad protections otherwise afforded by per-
mitting the enforcement of laws regulating speech that
tended to cause a breach of the peace such as defama-
tion or sedition. See Cologne v. Westfarms Associates,
192 Conn. 48, 64 n.9, 469 A.2d 1201 (1984).13 Therefore,
this court has interpreted the text of § 4 to permit pun-
ishment, within certain bounds, of abuse of the freedom
of speech. Additionally, the text of §§ 4 and 5 in no
way suggests that the legislature’s authority to punish
abuses of expressive liberties was limited to then pre-
vailing statutory criminal law. Thus, while the language
of §§ 4 and 5 provides for broader protection than
afforded under the federal constitution, the language
of § 4 more directly pertains to the state’s authority to
punish the abuse of expressive liberties. Accordingly,
I find that the text of §§ 4 and 5 does not support the
defendant’s position that our state constitution defines
the concept fighting words more narrowly.
B
I turn next to historical analysis to further clarify the
scope of the state’s expressive rights protections. The
historical analysis is the central focus of the defendant’s
constitutional claim. She advances the theory that the
only exceptions to the broad expressive rights protec-
tions afforded by the Connecticut constitution are those
extant at the time of the ratification of the Connecticut
constitution in 1818, and that there was no statute pro-
scribing profane name calling at that time.14 As a result,
according to the defendant, in light of the statutory law
at the time of ratification, the state may only punish
abusive language that includes a challenge to fight. The
state, on other hand, points to preconstitutional records
that, in very general terms, support the qualified charac-
ter of the civil liberties.15 I agree with the state.
Contrary to the defendant’s contention, ratification
era constitutional law is not the sole source of state
constitutional principles. Indeed, the common law pro-
vides valuable insight to inform our understanding of
constitutional principles. See E. Peters, ‘‘Common Law
Antecedents of Constitutional Law in Connecticut,’’ 53
Alb. L. Rev. 259, 264 (1989) (‘‘In defining and enacting
constitutional bills of rights, state and national constitu-
encies would, of course, have drawn upon the experi-
ence of the common law. . . . Just as the precepts of
the common law influence the style of constitutional
adjudication in common law courts, so common law
case law itself is part of our ‘usable past.’ ’’ [Footnote
omitted.]). In 1828, this court observed that when a
person sends a letter containing ‘‘abusive language’’ to
another person, it was ‘‘an indictable offence, because
it tends to a breach of the peace.’’ State v. Avery, 7
Conn. 266, 269 (1828).16 The court noted that, while the
letter would not constitute libel because it was not
published to a third party, it was ‘‘clearly an offence of
a public nature, and punishable as such, as it tends to
create ill-blood, and cause a disturbance of the public
peace.’’ Id. This common law offense originated in
England where it was observed that sending an ‘‘infa-
mous’’ letter to another person constituted an ‘‘offense
to the King, and is a great motive to revenge, and tends
to the breaking of the peace . . . .’’ Edwards v. Wooton,
77 Eng. Rep. 1316, 1316–17 (K.B. 1655); see also Hickes’s
Case, 79 Eng. Rep. 1240, 1240–41 (K.B. 1682). Chief
Justice Zephaniah Swift included the common-law
offense of provocation to breach of the peace in the
second volume of his digest published in 1823. See 2
Z. Swift, A Digest of the Laws of the State of Connecticut
(1823) pp. 340–41.17 At the very least, Connecticut com-
mon law embraced the principle that speech that tended
to cause a breach of the peace was illegitimate, even
if it did not acknowledge such conduct as a basis for
criminal liability.18 Indeed, this very rationale under-
girds the fighting words doctrine. See Chaplinsky v.
New Hampshire, supra, 315 U.S. 573 (noting that it is
within domain of state power to punish ‘‘words likely
to cause a breach of the peace’’).
Additionally, the defendant has failed to articulate a
persuasive rationale for relying strictly upon historical
exceptions in any form. The defendant correctly points
out that this court previously has recognized that ‘‘our
constitution’s speech provisions reflect a unique histori-
cal experience and a move toward enhanced civil liber-
ties, particularly those liberties designed to foster
individuality. . . . This historical background indi-
cates that the framers of our constitution contemplated
vibrant public speech, and a minimum of governmental
interference . . . .’’ (Internal quotation marks omit-
ted.) Trusz v. UBS Realty Investors, LLC, supra, 319
Conn. 206. However, this broad observation about the
historical context in which the declaration of rights
was adopted does not support any particular analytic
framework for delineating the scope of expressive
rights doctrine, let alone the one advanced by the defen-
dant. In sum, there is no basis for the 1818 code alone to
serve as the lodestar of present day state constitutional
expressive rights doctrine. Accordingly, I find this fac-
tor supports the state.
C
I next turn to the state precedents factor of the
Geisler analysis. The defendant contends that, because
this court has yet to delineate the scope of the fighting
words doctrine under the Connecticut constitution, this
court writes on a ‘‘clean slate.’’19 The state claims that,
while this court’s cases have expressly held that the
Connecticut constitution ‘‘bestows greater expressive
rights on the public than that afforded by the federal
constitution’’; see State v. Linares, supra, 232 Conn. 380;
appellate cases discussing state freedom of expression
principles evince a philosophy that balances individual
expressive liberties and the responsibility not to abuse
such liberties.20 I agree with the state.
This court’s more recent state constitutional expres-
sive rights cases show that Connecticut’s constitution
provides broader freedom of expression protections
than the federal counterpart. See, e.g., Trusz v. UBS
Realty Investors, LLC, supra, 319 Conn. 196; State v.
Linares, supra, 232 Conn. 382. In Linares, this court
was called upon to determine proper state constitu-
tional analytic framework for time, place, and manner
restrictions upon expression in a case challenging a
statute prohibiting disturbances in the General Assem-
bly. This court rejected the more modern, categorical
federal forum analysis in favor of the older, flexible,
case-by-case approach set forth in Grayned v. Rockford,
408 U.S. 104, 115–21, 92 S. Ct. 2294, 33 L. Ed. 2d 222
(1972). Likewise, in Trusz, this court rejected the more
recent—and more restrictive—federal standard analyz-
ing employee expressive rights claims set forth in Gar-
cetti v. Ceballos, 547 U.S. 410, 418–20, 126 S. Ct. 1951,
164 L. Ed. 2d 689 (2006), in favor of a modified version of
the older, more flexible Connick/Pickering21 standard.22
As mentioned previously, both Trusz and Linares
denote a state constitutional preference for preserving
individual liberties when the United States Supreme
Court diminishes the scope of such liberties under the
federal constitution. See footnote 19 of this concurring
and dissenting opinion. In contrast, in Cologne v. West-
farms Associates, supra, 192 Conn. 66, this court
rejected the novel theory that private shopping malls
were required to permit solicitation under the Connecti-
cut constitution. Thus, while it is true that Connecticut’s
constitution guarantees broad expressive rights—a
broader guarantee than the United States constitution—
it does not provide additional protection in each and
every facet of the broad field of expressive rights.
The appellate case law analyzing state constitutional
principles with respect to content based regulation of
speech embraces a philosophy that balances the expres-
sive liberties with the responsibility not to abuse such
liberties. In State v. McKee, 73 Conn. 18, 28, 46 A. 409
(1900), this court affirmed the denial of a demurrer
challenging, inter alia, the validity of a statute punishing
the publication of ‘‘criminal news, police reports, or
pictures and stories of deeds of bloodshed, lust, or
crime.’’ (Internal quotation marks omitted.) Rather than
looking to the substantive criminal law extant at the
time of ratification of the state constitution in 1818 to
determine the validity of this more recent statutory
offense as the defendant urges, Justice Hamersley relied
on the broader principles of expressive liberty to sustain
the statute. Id., 28. Speaking for a unanimous court, he
elaborated that expressive liberties are ‘‘essential to the
successful operation of free government,’’ and acknowl-
edged ‘‘free expression of opinion on any subject as
essential to a condition of civil liberty.’’ Id. Neverthe-
less, Justice Hamersley acknowledged the qualified
nature of expressive liberties, noting that ‘‘[i]mmunity
in the mischievous use is as inconsistent with civil lib-
erty as prohibition of the harmless use. Both arise from
the equal right of all to protection of law in the enjoy-
ment of individual freedom of action, which is the ulti-
mate fundamental principle.’’ Id., 28–29. He continued,
‘‘[f]reedom of speech and press does not include the
abuse of the power of tongue or pen, any more than
freedom of other action includes an injurious use of
one’s occupation, business, or property.’’ Id., 29. On
this issue, Justice Hamersley concluded that the notion
that the state constitution created a refuge for those
who sought to abuse expressive liberties to the detri-
ment of society ‘‘belittle[d] the conception of constitu-
tional safeguards and implie[d] ignorance of the
essentials of civil liberty.’’ Id.
These principles of civil liberty are interwoven into
this court’s reasoning in subsequent cases rejecting
state constitutional free speech challenges to statutes
proscribing abuse of expressive liberties. In State v.
Pape, 90 Conn. 98, 103, 96 A. 313 (1916), this court
reversed a demurrer that had dismissed an information
filed against the defendant alleging that the defendant
had published, if proven untrue, abusive and scurrilous
allegations of corruption and breach of office by indicat-
ing that a public official ‘‘had sold out his constituents
and traded their wishes and interests and his own soul
for an office.’’ This court reasserted that the legislature
may not ‘‘curtail the liberty of speech or of the press,
guaranteed as it is by our [c]onstitution.’’ Id., 105. The
court also noted that expressive rights principles derive
from the common law, and that it was a common law
principle that ‘‘free and fair criticism on any subject
reasonably open to public discussion is not defamation
and is not libelous . . . .’’ Id. In other words, ‘‘[l]iberty
of speech and of the press is not license, not law-
lessness, but the right to fairly criticize and comment.’’
Id. The court noted that it was a right for the defendant
to fairly comment upon the conduct of the public offi-
cial, but the defendant would bear the responsibility
for the abuse of that right. Id.
Similarly, in State v. Sinchuk, 96 Conn. 605, 616, 115
A. 33 (1921), this court upheld a seditious libel law23
challenged on state expressive rights grounds. The
defendants advanced the theory that the statute pun-
ished expression irrespective of harmful consequence.
Id., 607. This court conceded that publication of scurri-
lous or abusive matter concerning the federal govern-
ment does not necessarily result in direct incitement
to lawlessness, but, nevertheless, the legislature was
permitted to declare that such expression endangers
public peace and safety unless the court found such
conclusion to be plainly unfounded. Id., 609–10. In so
reasoning, the court acknowledged the breadth of legis-
lative authority to regulate speech that may be harmful
to public peace. Id.
The defendant correctly points out that the narrow
holdings of these early twentieth century expressive
rights cases would not likely withstand modern consti-
tutional scrutiny.24 The defendant is incorrect, however,
that because the cases provide no evidence of the scope
of expressive rights protection in 1818, that they provide
no meaningful insight to our analysis.25 With respect to
the issue at hand, these cases evince a philosophy not
dissimilar from that prevailing in 1818—namely, the
belief that citizens should be free to express themselves,
but that they bear responsibility for the abuse of that
right. Moreover, this court’s reliance on preconstitu-
tional common-law principles to inform the scope of
state constitutional rights undercuts the defendant’s
theory that early nineteenth century statutory criminal
law delineates the scope of expressive rights. For these
reasons, the state precedents factor favors the state’s
position.
D
Next, I turn to the sister state precedents factor of
the Geisler analysis. The defendant urges this court to
adopt the approach followed by Oregon. The state does
not rely on this factor for its position, but asserts that
the Oregon approach is inconsistent with Connecticut
constitutional jurisprudence. I agree with the state.
The Oregon Supreme Court has concluded that its
constitutional expressive rights provision26 ‘‘forecloses
the enactment of any law written in terms directed
to the substance of any ‘opinion’ or any ‘subject’ of
communication, unless the scope of the restraint is
wholly confined within some historical exception that
was well established when the first American guaran-
tees of freedom of expression were adopted and that
the guarantees then or in 1859 demonstrably were not
intended to reach.’’ State v. Robertson, 293 Or. 402, 412,
649 P.2d 569 (1982). Applying this test, the Oregon Court
of Appeals held a harassment statute under which the
defendant had been convicted for calling another per-
son a ‘‘fucking nigger’’ to be unconstitutional because
using abusive language was not a historical exception
to speech rights at the time of ratification of the Oregon
constitution. (Internal quotation marks omitted.) State
v. Harrington, 67 Or. App. 608, 610, 615–16, 680 P.2d
666, cert. denied, 297 Or. 547, 685 P.2d 998 (1984). Har-
rington concluded that the Chaplinsky standard
employed a balancing test to determine whether speech
was protected whereas the Oregon constitution prohib-
ited ‘‘restricting the right to speak freely on any subject
whatever.’’ (Internal quotation marks omitted; empha-
sis in original.) Id., 614.
The Oregon approach is inapposite to determining the
protections afforded by the Connecticut constitution
because that state employs a different analytic
approach to delineating the scope of state constitutional
provisions. The Oregon approach is a mechanistic, sin-
gle-factor approach that focuses solely on statutory sub-
stantive criminal law extant contemporaneously with
ratification of its constitution. Connecticut, by relying
upon the Geisler factors, embraces a ‘‘structured and
comprehensive approach to state constitutional inter-
pretation . . . .’’ (Internal quotation marks omitted.)
Connecticut Coalition for Justice in Education Fund-
ing, Inc. v. Rell, 295 Conn. 240, 272 n.26, 990 A.2d
206 (2010). This multifactor approach provides a more
extensive toolkit to fashion appropriate, principled con-
stitutional rules. See also Honulik v. Greenwich, 293
Conn. 641, 648, 980 A.2d 845, (2009) (noting that the
factors are ‘‘to be considered in construing the contours
of our state constitution so that we may reach reasoned
and principled results as to its meaning’’). Additionally,
the defendant has done little to persuade why Oregon’s
historical exception approach, other than her own con-
clusion that it is ‘‘logical,’’ is the appropriate test to
delineate the scope of expressive rights under the Con-
necticut constitution. Nor does the Oregon Supreme
Court articulate a persuasive basis for adopting such an
approach. Indeed, Robertson appears to have adopted it
strictly from the plain language of the relevant constitu-
tional provision, which differs at least in form, if not
substance, from Connecticut’s relevant constitutional
text. State v. Robertson, supra, 293 Or. 412; see also
footnote 26 of this opinion.
The only other state to have considered the fighting
words doctrine under its own expressive rights provi-
sions is Vermont, and the Vermont Supreme Court
determined, in a challenge to the ‘‘abusive language’’
prong of its disorderly conduct statute, that its state
constitution does not offer broader protection that the
federal constitution with respect to the fighting words
doctrine. (Internal quotation marks omitted.) State v.
Read, 165 Vt. 141, 156, 680 A.2d 944 (1996). The court
began its discussion by noting that, while Vermont’s
constitution ‘‘may afford greater protection to individ-
ual rights than do the provisions of the federal charter,’’
the court had previously indicated that expressive rights
are coterminous under the state and federal constitu-
tion but had reserved final judgment on the issue. (Inter-
nal quotation marks omitted.) Id., 153. In Read, the
defendant had made textual, comparative, and histori-
cal arguments that his speech was protected. Id., 152–
53. The court rejected his argument that the Vermont
constitution offers broader protection by virtue of the
fact that it contains no fewer than four speech provi-
sions and that none of those provisions qualify expres-
sive rights with the imposition of responsibility for the
abuse thereof. Id., 153–54. The defendant in Read fur-
ther contended that Vermont was historically tolerant
of abusive language.27 Id., 154. While the court generally
accepted the defendant’s characterization of contempo-
rary social norms, it rejected the defendant’s historical
argument by relying principally upon a statement by
the Vermont governor and council, made in response
to Kentucky and Virginia resolutions espousing nullifi-
cation of the Sedition Act, that strongly indicated that
Vermont’s constitutional expressive rights provisions
afforded no broader protection than the first amend-
ment.28 Id., 155. The court concluded that the defendant
had failed to satisfy its burden of showing that the
Vermont constitution protected his speech. Id., 156.
My research reveals that, other than Oregon, no other
state’s constitution provides additional protection with
respect to fighting words. Additionally, I find Oregon
law to be unpersuasive. Accordingly, the sister state
precedent factor favors the state.
E
I next address the federal precedents factor of
Geisler. The defendant claims that one of the principal
theoretical underpinnings of the fighting words doctrine
has diminished since the inception of the doctrine. Spe-
cifically, the defendant claims that the United States
Supreme Court acknowledges the expressive value of
fighting words, whereas the court previously had found
fighting words to be of little value at all. The state, on
the other hand, points to the fact that the United States
Supreme Court has not strayed from Chaplinsky and
that the doctrine continues to endure. The state also
maintains that, while the United States Supreme Court
did acknowledge the expressive value of fighting words,
it also reasoned that such words may be proscribed
because they constitute a ‘‘ ‘nonspeech’ element of com-
munication . . . analogous to a noisy sound truck
. . . .’’ R. A. V. v. St. Paul, 505 U.S. 377, 386, 112 S. Ct.
2538, 120 L. Ed. 2d 305 (1992). Finally, the state points
to Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900,
84 L. Ed. 1213 (1940), which is the antecedent of
Chaplinsky, as evidence that the scope of the fighting
words doctrine under the state and federal constitutions
is coextensive. I find this factor favors the state.
I begin by addressing Cantwell v. Connecticut, supra,
310 U.S. 296,29 which arose out of the proselytization
activities of a group of Jehovah’s Witnesses. See State
v. Cantwell, 126 Conn. 1, 3, 8 A.2d 533 (1939), rev’d,
310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). The
information alleged that a group, a father and his two
children, ambulated Cassius Street in New Haven solic-
iting, without prior approval, the sale of books or dona-
tions by offering to play a phonograph recording as
part of the pitch. Id. Ninety percent of the residents
of the neighborhood were Roman Catholic, and the
phonographic recording contained attacks upon the
Catholic religion. Id. The defendants in that case were
arrested, charged, and convicted of soliciting without
a permit and breach of the peace. Id., 2–3 and n.1.
The defendants appealed to this court challenging the
sufficiency of the evidence supporting the conviction
of breach of the peace.30 Id., 5–6. This court upheld,
inter alia, the conviction of one of the three defendants
for breach of peace, observing that ‘‘[t]he doing of acts
or the use of language which, under circumstances of
which the person is or should be aware, are calculated
or likely to provoke another person or other persons
to acts of immediate violence may constitute a breach
of the peace. . . . The effect or tendency of words or
conduct depends largely upon the circumstances, and
is a question of fact. . . . It is apparent from the facts
found that the playing for audition by loyal Catholics
of a record violently attacking their religion and church
could well be found to constitute the offense charged,
and they warrant finding [of] guilty.’’ (Citations omit-
ted.) Id., 7.31 This court noted the constitutional implica-
tions of their reasoning by stating that ‘‘the right to
propagate religious views is not to be denied,’’ but nev-
ertheless concluded that ‘‘one will not be permitted
to commit a breach of the peace, under the guise of
preaching the gospel.’’32 (Internal quotation marks omit-
ted.) Id. That defendant then filed a petition for certifica-
tion to appeal to the United States Supreme Court,
which was granted. Cantwell v. Connecticut, 309 U.S.
626, 626–27, 60 S. Ct. 589, 84 L. Ed. 987 (1940).
On appeal, the United States Supreme Court reversed
on the remaining conviction for breach of the peace.
Cantwell v. Connecticut, supra, 310 U.S. 311. The court
found that it would be inconsistent with the principles
of expressive liberties to punish the defendant for the
content of the phonographic recording. Id., 310. The
court reasoned that in a diverse society, religious as well
as political discourse will produce sharp differences of
belief. Id. ‘‘In both fields the tenets of one man may
seem the rankest error to his neighbor. To persuade
others to his own point of view, the pleader, as we
know, at times, resorts to exaggeration, to vilification
of men who have been, or are, prominent in church or
state, and even to false statement.’’ Id. Part of the
essence of citizenship, the court observed, is the right
to express even offensive beliefs. See id. (‘‘[b]ut the
people of this nation have ordained in the light of his-
tory, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential
to enlightened opinion and right conduct on the part
of the citizens of a democracy’’).
But the United States Supreme Court also acknowl-
edged the state’s interest in preserving peace. Id., 311.
The court, in striking a balance between the competing
interests, acknowledged that in some circumstances it
is appropriate for the state to punish certain speech
that tends to provoke violence, noting as follows: ‘‘One
may, however, be guilty of the offense if he commit
acts or make statements likely to provoke violence and
disturbance of good order, even though no such eventu-
ality be intended. Decisions to this effect are many,
but examination discloses that, in practically all, the
provocative language which was held to amount to a
breach of the peace consisted of profane, indecent, or
abusive remarks directed to the person of the hearer.
Resort to epithets or personal abuse is not in any proper
sense communication of information or opinion safe-
guarded by the [United States constitution], and its pun-
ishment as a criminal act would raise no question under
that instrument.’’ Id., 309–10. Thus, the United States
Supreme Court acknowledged Connecticut’s well estab-
lished authority to regulate speech that tends to pro-
voke violence, but refined that authority to conform to
federal free speech principles by permitting regulation
of only profane, indecent, or abuse remarks likely to
provoke violence. It was this principle that would
become the foundation of the fighting words doctrine
in Chaplinsky.
The factual background of Chaplinksy, as in Cant-
well v. Connecticut, supra, 310 U.S. 296, involves prose-
lytization activity by a Jehovah’s Witness. Chaplinsky
v. New Hampshire, supra, 315 U.S. 569. On the busy
streets of Rochester, New Hampshire, the defendant
was distributing the literature of his religion and
denouncing other religions as a ‘‘racket.’’ (Internal quo-
tation marks omitted.) Id., 569–70. The crowd com-
plained to the city marshal, who informed the crowd
that the defendant was engaged in lawful activity, but
also warned the defendant that the crowd was becom-
ing restless. Id., 570. After some time, a disturbance
ensued, and a nearby traffic officer escorted the defen-
dant toward the police station. Id. En route, the defen-
dant encountered the marshal who was going to the
scene of the disturbance. Id. Upon seeing the marshal,
the defendant said ‘‘[y]ou are a [g]od damned racketeer
and a damned [f]ascist and the whole government of
Rochester are [f]ascists or agents of [f]ascists . . . .’’
(Internal quotation marks omitted.) Id., 569. According
to the defendant, before uttering the language that pred-
icated the criminal offense, he complained to the mar-
shal about the disturbance and requested that those
responsible be arrested. Id., 570. The defendant was
charged and convicted under a state statute making it
a crime to address any ‘‘offensive, derisive or annoying’’
words at the person of another.33 (Internal quotation
marks omitted.) Id., 569.
In setting forth the applicable expressive rights prin-
ciples, the United States Supreme Court sketched out
their qualified nature. The court observed that it was
‘‘well understood that the right of free speech is not
absolute at all times and under all circumstances.’’ Id.,
571. ‘‘There are certain [well defined] and narrowly
limited classes of speech, the prevention and punish-
ment of which have never been thought to raise any
[c]onstitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or
‘fighting’ words—those which by their very utterance
inflict injury or tend to incite an immediate breach of
the peace.’’ (Footnote omitted.) Id., 571–72. The court’s
rationale for exempting certain categories of speech
from protection is that ‘‘such utterances are 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 order and morality.’’ Id., 572. Chaplinsky
drew further support by quoting Cantwell v. Connecti-
cut, supra, 310 U.S. 309–10, for the proposition that
‘‘[r]esort to epithets or personal abuse’’ is not protected
speech and would raise no question as to its punishment
under the constitution. See Chaplinsky v. New Hamp-
shire, supra, 315 U.S. 572.
Consistent with the principle set forth in Cantwell,
the court was careful to reiterate that any law punishing
pure speech must be narrowly drawn to punish only
that speech which tends to cause a breach of the peace.
Id., 573. The court noted that the New Hampshire
Supreme Court had authoritatively construed the stat-
ute in a fashion to conform to this principle by limiting
the statute’s scope to words that have ‘‘direct tendency
to cause acts of violence by the person to whom, individ-
ually, the remark is addressed,’’ which is to be deter-
mined by inquiring whether ‘‘men of common
intelligence would understand would be words likely
to cause an average addressee to fight.’’ (Internal quota-
tion marks omitted.) Id. With respect to the defendant’s
speech itself, the court concluded, ‘‘[a]rgument is
unnecessary to demonstrate that the appellations ‘damn
racketeer’ and ‘damn Fascist’ are epithets likely to pro-
voke the average person to retaliation, and thereby
cause a breach of the peace.’’ Id., 574. Thus, the fighting
words doctrine itself as articulated in Chaplinsky is a
step in the evolution of a principle of expressive liberty
that draws its very essence from Connecticut, which
acknowledges the authority of the state, within narrow
limits, to punish pure speech that tends to cause a
breach of the peace.
The defendant claims that, since Chaplinsky, the
United States Supreme Court has viewed the value of
fighting words more favorably. Compare Chaplinsky v.
New Hampshire, supra, 315 U.S. 572 (‘‘[r]esort to epi-
thets or personal abuse is not in any proper sense com-
munication of information or opinion safeguarded by
the [c]onstitution’’ [internal quotation marks omitted]),
with R. A. V. v. St. Paul, supra, 505 U.S. 384–85 (‘‘[i]t
is not true that fighting words have at most a de minimis
expressive content . . . or that their content is in all
respects worthless and undeserving of constitutional
protection . . . sometimes they are quite expressive
indeed’’ [internal quotation marks omitted; citations
omitted; emphasis in original]). Fighting words, like
offensive language more generally, has an emotive com-
municative function. See Cohen v. California, supra,
403 U.S. 26 (‘‘[i]n fact, words are often chosen as much
for their emotive as their cognitive force’’). In other
words, the use of offensive language serves as a means
to convey the passion with which one holds ideas or
beliefs he or she seeks to exchange. Even acknowledg-
ing this value, the court maintained that fighting words
‘‘constitute no essential part of any exposition of ideas.’’
(Internal quotation marks omitted; emphasis omitted.)
R. A. V. v. St. Paul, supra, 385. Nevertheless, the federal
fighting words doctrine admits the expressive value of
abusive words or epithets by protecting such speech
and permitting regulation only when such speech would
provoke an ordinary person to respond with immediate
violence. Gooding v. Wilson, 405 U.S. 518, 528, 92 S.
Ct. 1103, 31 L. Ed. 2d 408 (1972). On the basis of the
foregoing, I conclude that federal precedent does not
support the defendant’s claim that our state constitution
permits the punishment fighting words only if the defen-
dant directly invites a fight.
F
Finally, I turn to the public policy factor of the Geisler
analysis. The defendant asserts that the fighting words
doctrine reflects an archaic conception of honor
according to which it is normative for ordinary people
to respond to name calling with violence. Additionally,
the defendant claims that the Connecticut citizenry is
generally peaceable, relying principally upon the state’s
relatively low incidence of assault for support. In addi-
tion, the defendant claims that the fighting words doc-
trine presents a shifting standard that is ascertained by
the ‘‘unpredictable’’ determinations of judges and juries.
The state responds that the defendant has failed to
sever the connection between abusive language and the
likelihood of immediate violence because the statistics
she cites do not shed light on the precipitating circum-
stances of the assaults. Finally, the state claims that
the question of whether fighting words actually lead to
violent responses is best left to the legislature. I con-
clude that the fighting words doctrine is consonant with
the public policy of the state.
To begin with, abusive language and epithets are not
entirely harmless expression. Indeed, there is certain
speech that does more than just offend sensibilities or
merely cause someone to bristle. One commentator has
observed the following about abusive language: ‘‘Often
a speaker consciously sets out to wound and humiliate
a listener. He aims to make the other feel degraded and
hated, and chooses words to achieve that effect. In
what they accomplish, insults of this sort are a form of
psychic assault; they do not differ much from physical
assaults, like slaps or pinches, that cause no real physi-
cal hurt. Usually, the speaker believes the listener pos-
sesses the characteristics that are indicated by his
humiliating and wounding remarks, but the speaker
selects the most abusive form of expression to impose
the maximum hurt. His aim diminishes the expressive
importance of the words.’’ (Footnotes omitted.) K.
Greenawalt, ‘‘Insults and Epithets: Are They Protected
Speech?’’ 42 Rutgers L. Rev. 287, 293 (1990); see also
Taylor v. Metzger, 152 N.J. 490, 503, 706 A.2d 685 (1998)
(‘‘ ‘The experience of being called ‘‘nigger,’’ ‘‘spic,’’
‘‘Jap,’’ or ‘‘kike’’ is like receiving a slap in the face.
The injury is instantaneous.’ ’’). ‘‘It is precisely because
fighting words inflict injury that they tend to incite an
immediate breach of the peace. Fighting words cause
injury through visceral aggression and by attacking the
target’s rights. Individuals who are injured in this way
have a strong tendency to respond on the same level,
even though that response may itself be wrongful.’’
(Emphasis omitted; internal quotation marks omitted.)
S. Heyman, ‘‘Righting the Balance: An Inquiry into the
Foundations and Limits of Freedom of Expression,’’ 78
B.U.L. Rev. 1275, 1372 (1998). Indeed, I agree with the
Appellate Court’s observation that deterring such
speech does not limit the freedom of expression, but
rather the breach of the peace statute, as limited by the
fighting words doctrine, fosters freedom of expression.
See State v. Weber, 6 Conn. App. 407, 416, 505 A.2d 1266
(‘‘[t]he public policy inherent in this statute is not to
prevent the free expression of ideas, but to promote a
peaceful environment wherein all human endeavors,
including the expression of free ideas, may flourish’’),
cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).
The defendant claims that the law should not
embrace an assumption that reasonable people will
respond to abusive language with violence and claims
that the people of Connecticut are peaceable, citing a
low incidence of assault. This argument has received
some traction, principally among commentators. See,
e.g., B. Caine, ‘‘The Trouble with ‘Fighting Words,’ ’’ 88
Marq. L. Rev. 441, 506 (2004) (noting a lack of evidence
to support the ‘‘highly dubious assumption’’ that fighting
words lead to violence); see also State v. Read, supra,
165 Vt. 156 (Morse, J., dissenting) (describing fighting
words doctrine as ‘‘archaic relic, which found its gene-
sis in more chauvinistic times when it was considered
bad form for a man to back down from a fight’’). First,
as the state points out, the defendant has not severed
the connection between abusive language, including
epithets, and violence. The assault statistics provided
by the defendant shed no light on the precipitating
circumstances of the assault cases. In any case, the
fighting words doctrine, by requiring the jury to deter-
mine whether an ordinary person would respond to
the abusive language with immediate violence, already
contemplates a fluid community standard for fighting
words that naturally includes the extent to which the
people of this state are peaceable.34
Ultimately, I conclude that the fighting words doc-
trine strikes the appropriate balance. It permits the state
to regulate speech that is so abusive and hurtful that
it will provoke an immediate violent response, while
protecting harsh, but less hurtful speech that has cogni-
zable expressive value. The consequence of limiting the
fighting words doctrine to the extent advanced by the
defendant would be to protect degrading speech that
has the recognized effect of causing palpable impact—
enough impact to provoke the listener to immediate
violence—in order to preserve, at most, such speech’s
practical utility as emotive expression. In other words,
fighting words are not constitutionally protected merely
because they could be used as a tool to express how
strongly a speaker feels about an idea or belief. Accord-
ingly, I find that the public policy factor favors the
state’s position.
G
In resolving this issue, I conclude that the Geisler
factors do not support the theory advanced by the
defendant. This state’s constitution expressly contem-
plates holding a citizen responsible for the abuse of
expressive liberty. See Conn. Const., art. I, § 4. As pre-
viously discussed in this concurring and dissenting
opinion, this state has historically embraced a civil liber-
tarian philosophy that is permissive of government reg-
ulation of the abuse of expressive liberties when such
abuse tends toward a breach of the peace. The defen-
dant has not advanced a persuasive theory to adopt a
historical exception approach to delineating the scope
of expressive liberties. Moreover, while there was no
statute criminalizing fighting words at the time the Con-
necticut constitution was ratified, common law princi-
ples embraced punishing such abusive language. The
defendant’s reliance on Oregon case law is unpersua-
sive because that state employs a different analytic
framework to delineate the scope of expressive rights.
Also, federal precedents demonstrate that the fighting
words doctrine draws its essence from Connecticut law,
further supporting a conclusion that protection in this
area is coextensive.35
Finally, the public policy factor does not demand
additional protection for fighting words. I acknowledge
that ‘‘[t]he Connecticut constitution is an instrument of
progress, it is intended to stand for a great length of
time and should not be interpreted too narrowly or too
literally so that it fails to have contemporary effective-
ness for all of our citizens.’’ State v. Dukes, 209 Conn.
98, 115, 547 A.2d 10 (1988). This progressive principle
surely counsels against an interpretation that seeks to
apply the mores and norms of yesteryear to modern
constitutional law. To be sure, our society’s discourse
has become progressively coarser. This does not mean,
however, that this state’s constitution should be con-
verted into a license to gratuitously inflict psychic injury
and push people to their limits. The present case makes
this point crystal clear. The defendant testified that she
did not believe that her tirade would achieve her original
goal of retrieving the money transfer. To the contrary,
she explained that she felt hurt by the fact that she
was purportedly misled about her ability to retrieve the
money transfer and she wanted to hurt Freeman back.
Perhaps implicit in her purposely hurtful speech was
an emotive expression—the strength of her desire to
retrieve her money transfer. Nevertheless, the Connecti-
cut constitution does not demand that citizens should
be forced to bear extreme personal denigration—abuse
that pushes a person to the brink of violence—so that
others may freely employ wanton vilification as a form
of expression.
On the basis of the foregoing, I conclude that, under
the state constitution, speech directly challenging the
listener to a fight is not a necessary element of the
fighting words doctrine. Rather, the standard is whether
the speech at issue is so abusive that it would provoke
an ordinary person to respond with immediate violence.
I next turn to whether the evidence was sufficient to
sustain the defendant’s conviction under § 53a-181 (a)
(5). I conclude that the cumulative force of the evidence
in the present case is sufficient to support such a convic-
tion.36 The defendant, in a belligerent and angry manner,
used harsh and scornful language designed to debase
Freeman. She insulted her on the basis of her gender,
body composition, and apparent suitability for her posi-
tion as a manager of the store. She utilized the word
‘‘cunt,’’ which is generally recognized as a powerfully
offensive term. I cannot say that, as a matter of law,
this evidence is insufficient to find that the defendant’s
speech was so offensive that it would provoke an ordi-
nary person to immediately respond with violence.
IV
CHARGE
Next, I address whether the issue of whether the trial
court properly instructed the jury on the elements of
the fighting words gloss placed on the abusive language
prong of § 53a-181 (a) (5). The state claims that the
defendant impliedly waived her instructional impropri-
ety claim by pursuant to State v. Kitchens, 299 Conn.
447, 10 A.3d 942 (2011). The defendant claims that there
is insufficient evidence in the record to support an
implied waiver under Kitchens. Alternatively, the defen-
dant claims that the trial court’s failure to properly
instruct the jury on the elements of the fighting words
doctrine resulted in manifest injustice necessitating
reversal under the plain error doctrine. On the basis of
this court’s recent decision in State v. McClain, 324
Conn. 802, 155 A.3d 209 (2017), I agree with the defen-
dant that she is entitled to plain error review and a
reversal thereunder. Accordingly, I need not decide
whether the defendant impliedly waived review
under Kitchens.
The record reveals the following additional facts.
After the jury departed on the first day of the defen-
dant’s two day trial, the judge furnished to counsel a
first draft of the jury charge. The draft charge was
marked as an exhibit and dated September 11, 2014.
The judge discussed with counsel an issue pertaining
to the jury instruction on the two counts of threatening
on which the defendant was ultimately not convicted.
See footnote 4 of this concurring and dissenting opin-
ion. The judge indicated that he had drafted additional
language regarding those counts over lunch, read the
language into the record, and indicated that he would
provide counsel a hard copy of that language the follow-
ing day. Thereafter, the judge considered a request to
charge on the breach of the peace count. Specifically,
defense counsel had requested that the jury be
instructed that swearing alone is not enough to convict
on that count. After a brief colloquy on the issue, the
judge stated that his ‘‘inclination’’ was not to give the
requested charge and that the ‘‘committee charge avail-
able online comes at it quite properly . . . .’’ The judge
stated that he was ‘‘satisfied that it’s sufficient to tell
[the jury] what does constitute the crime of breach of
the peace.’’ Wrapping up those two issues, the judge
stated he had ‘‘a pretty good idea of what [his] charge
[was going to] consist of.’’ As defense counsel began
to raise other issues pertaining to the jury charge, the
judge requested that counsel point out any typographi-
cal errors in the draft because ‘‘[t]he jury [is] getting a
copy of this.’’ Defense counsel raised an issue with
respect to the instruction on the obscene language
prong of § 53a-181 (a) (5). Defense counsel specifically
indicated that she was referring to language on page
nineteen of the first draft. The judge permitted the jury
to be instructed that there was ‘‘no evidence of language
that meets the legal definition of obscenity . . . .’’
There was additional discussion regarding the draft
instructions and then court adjourned for the day.
The next day, before resuming the presentation of
evidence, an off the record supplemental charging con-
ference was held at which a number of the defendant’s
requests to charge were considered. The defendant’s
request to charge, a written copy of which was filed
with the court that morning, contained citations to the
draft charge disseminated the previous day. During the
charging conference, the judge discussed with counsel
some changes that were made to the first draft and
rejected the defendant’s requests to charge. The jury
instruction relevant to this appeal that was ultimately
provided to the jury was precisely the same as it
appeared in the first draft. The challenged instruction
is as follows: ‘‘Language is ‘abusive’ if it is so coarse
and insulting as to create a substantial risk of provoking
violence. The state must prove that the defendant’s
language had a substantial tendency to provoke violent
retaliation or other wrongful conduct. The words used
must be ‘fighting words,’ which is speech that has a
direct tendency to cause immediate acts of violence or
portends violence. Such speech must be of such a
nature that it is likely to provoke the average person
to retaliation.’’
As a threshold matter, I address the proper standard
of review for this issue. In her opening brief, the defen-
dant seeks review of her unpreserved claim of instruc-
tional impropriety pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989). The state claims
that the defendant cannot satisfy the third prong of
Golding in light of her trial counsel’s implied waiver of
the claim pursuant to our holding in Kitchens. The
defendant requests in her brief, in the alternative to
Golding review, that this court review her instructional
impropriety claim for plain error. This court recently
addressed the question whether a Kitchens waiver pre-
cludes review under the plain error doctrine. State v.
McLain, supra, 324 Conn. 804. This court answered that
question in the negative, concluding that a defendant
may seek plain error review of unpreserved claims of
instructional impropriety. Id. Because I conclude that
the defendant is entitled to relief under the plain error
doctrine, I need not decide whether the defendant
impliedly waived her right to Golding review under
Kitchens.37
I begin with a review of the legal principles that
govern review of this issue. ‘‘[The plain error] doctrine,
codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors com-
mitted at trial that, although unpreserved, are of such
monumental proportion that they threaten to erode our
system of justice and work a serious and manifest injus-
tice on the aggrieved party. [T]he plain error doctrine
. . . is not . . . a rule of reviewability. It is a rule of
reversibility. That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked
sparingly. . . . Implicit in this very demanding stan-
dard is the notion . . . that invocation of the plain
error doctrine is reserved for occasions requiring the
reversal of the judgment under review.’’ (Internal quota-
tion marks omitted.) State v. Sanchez, 308 Conn. 64,
76–77, 60 A.3d 271 (2013).
Plain error review is effectuated by application of a
two prong test. First, a reviewing court ‘‘must determine
if the error is indeed plain in the sense that it is patent
[or] readily discernable on the face of a factually ade-
quate record, [and] also . . . obvious in the sense of
not debatable. . . . This determination clearly requires
a review of the plain error claim presented in light of
the record.’’ (Internal quotation marks omitted.) Id., 77.
Second, ‘‘the reviewing court must examine that error
for the grievousness of its consequences in order to
determine whether reversal under the plain error doc-
trine is appropriate. A party cannot prevail under plain
error unless it has demonstrated that the failure to grant
relief will result in manifest injustice.’’ (Internal quota-
tion marks omitted.) Id. In other words, the defendant
is not entitled relief under the plain error doctrine
unless she ‘‘demonstrates that the claimed error is both
so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice.’’ (Empha-
sis omitted; internal quotation marks omitted.) Id., 78.
‘‘It is . . . constitutionally axiomatic that the jury be
[properly] instructed on the essential elements of a
crime charged.’’ (Internal quotation marks omitted.)
State v. Johnson, 316 Conn. 45, 58, 111 A.3d 436 (2015).
‘‘The due process clause of the fourteenth amendment
[to the United States constitution] protects an accused
against conviction except upon proof beyond a reason-
able doubt of every fact necessary to constitute the
crime with which he is charged. . . . Consequently,
the failure to instruct a jury on an element of a crime
deprives a defendant of the right to have the jury told
what crimes he is actually being tried for and what
the essential elements of those crimes are.’’ (Internal
quotation marks omitted.) State v. Padua, 273 Conn.
138, 166, 869 A.2d 192 (2005). ‘‘A jury instruction is
constitutionally adequate if it provides the jurors with
a clear understanding of the elements of the crime
charged, and . . . afford[s] proper guidance for their
determination of whether those elements were pres-
ent.’’ (Internal quotation marks omitted.) State v. Valin-
ski, 254 Conn. 107, 120, 756 A.2d 1250 (2000).
The constitutional dimension of the instructional
impropriety in the present case is magnified by the
fact that a precise articulation of the element of the
substantive offense is necessary to satisfy the require-
ments of the first amendment. In order for the state to
properly punish pure speech, such speech must fall
within one of a few exceedingly narrow classes of
speech. Gooding v. Wilson, supra, 405 U.S. 521–22
(‘‘[t]he constitutional guarantees of freedom of speech
forbid the [s]tates to punish the use of words or lan-
guage not within narrowly limited classes of speech’’
[internal quotation marks omitted]) ‘‘Even as to such
a class, however . . . the line between speech uncon-
ditionally guaranteed and speech which may legiti-
mately be regulated, suppressed, or punished is finely
drawn . . . .’’ (Internal quotation marks omitted.) Id.,
522. Therefore, it is vital that ‘‘[i]n every case the power
to regulate must be so exercised as not . . . unduly to
infringe the protected freedom . . . .’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.)
Id. Consistent with this principle, the United States
Supreme Court has consistently struck down statutes
that purported to criminalize speech in excess of first
amendment limits. See, e.g., Houston v. Hill, supra, 482
U.S. 451; Lewis v. New Orleans, supra, 415 U.S. 130;
Gooding v. Wilson, supra, 522. Properly maintaining a
constitutionally adequate boundary between legitimate
and illegitimate speech demands the utilization of ‘‘sen-
sitive tools . . . .’’ (Internal quotation marks omitted.)
Gooding v. Wilson, supra, 528.
In the present case, the necessary tool for constitu-
tional consonance is a simple, yet narrowly drawn defi-
nition of fighting words: abusive language likely to
provoke an ordinary person, as the recipient of such
abusive language, to respond with imminent violence.
See id. Indeed, Gooding explicitly rejected any con-
struction that diminished the imminence and violence
aspects of the standard. Id., 526.38 Consistent with Good-
ing, the Appellate Court has placed a judicial gloss on
§ 53a-181 (a) (5) to save the provision from a facial
overbreadth attack, concluding that ‘‘subdivision (5)
proscribes fighting words that tend to induce immediate
violence by the person or persons to whom the words
are uttered because of their raw effect.’’ State v. Cara-
coglia, supra, 78 Conn. App. 110.39 This authoritative
construction of § 53a-181 (a) (5) is succinct, accurate,
and comports comfortably with the federal constitu-
tional rule. It is precisely the kind of sensitive tool
Gooding required to properly punish illegitimate
speech. The efficacy of this tool is illusory, however,
if it is not implemented in the form of a properly articu-
lated jury instruction. Accordingly, the failure to charge
the jury to limit the application of the crime to the
constitutional rule deprives the defendant of a funda-
mental constitutional right. See State v. Anonymous
(1978-4), 34 Conn. Supp. 689, 695, 389 A.2d 1270 (App.
Sess. 1978), overruled on other grounds by State v.
Moulton, 310 Conn. 337, 351–63, 78 A.3d 55 (2013).
Against this backdrop, it is clear that the jury instruc-
tion in the present case failed to accurately describe
the legal standard for fighting words. The relevant
instruction comprises four sentences. While the instruc-
tion excels in verbosity, it fails in accuracy. The instruc-
tion impermissibly describes the state’s burden of proof
to be proof of a broader class of speech than that which
would provoke an ordinary person, as recipient of the
abusive language, to respond with immediate violence.
The second sentence begins the instruction on the legal
standard that the state must satisfy with respect to this
element of the substantive offense. That sentence starts
by stating that ‘‘[t]he state must prove that the defen-
dant’s language had a substantial tendency to provoke
violent retaliation . . . .’’ If the sentence stopped there,
it would be redundant of the first sentence, which
defines abusive language to be ‘‘so coarse . . . as to
create a substantial risk of provoking violence.’’ Instead
of stopping there, the instruction impermissibly broad-
ens the scope by indicating that the state could prove
the element by showing that the speech tended to pro-
voke ‘‘other wrongful conduct.’’ The third sentence does
not limit the speech to that which provokes an immedi-
ate violent response, but broadens it to speech that
‘‘portends violence.’’40 The final sentence describes that
speech as that which merely provokes ‘‘retaliation.’’
Moreover, to the extent the instruction even conveys
that the response to the speech must also be violent,
it fails to convey that the jury must find that such vio-
lence be imminent. None of the four sentences that
illustrate that standard indicates that a violent response
must be imminent. The only sentence that does suggest
immediacy is the third sentence, but that sentence
employs a disjunctive thereby broadening the class
of speech.
To a lay juror, the instruction used in the present
case describes the legal standard in broad terms. Read
together, the jury’s instruction was that the state must
show, at a minimum, that the defendant’s language ‘‘por-
tend[ed] violence’’ and was likely to ‘‘provoke the aver-
age person to retaliation’’ in the form of ‘‘wrongful
conduct.’’ In other words, this instruction apprised the
jury that it could find that the state met its burden if
an ordinary person would respond to the defendant’s
speech—which could have portended violence by cou-
pling the insulting language with the raising of her
cane—with threats or fighting words, not necessarily
violence. Therefore, this description of the legal stan-
dard that the state must satisfy clearly broadens the
class of speech deemed illegitimate beyond constitu-
tionally permissible bounds.41
Next, there is no doubt that this jury instruction was
manifestly unjust. The harm in permitting a jury to crim-
inally sanction such an impermissibly broad class of
speech is readily apparent. It is inimical to our system
of justice to punish speech that a properly instructed
jury may well have found to be constitutionally pro-
tected. The state claims that the language used by the
defendant was so abusive that any instructional impro-
priety was harmless. I disagree. The standard for fight-
ing words is an objective one; it asks the jury to make
a finding with respect to the degree of offensiveness
of the speech. As previously discussed in this concur-
ring and dissenting opinion, permitting a properly
instructed to jury to assess the offensiveness of the
speech accounts for the evolution in normative values
and culture. See part III G of this concurring and dis-
senting opinion. In the present case, the dispositive
issue for the jury with respect to this count was princi-
pally the degree of offensiveness of the defendant’s
language; the defendant admitted berating Freeman and
did not stridently dispute the testimony of the state’s
witnesses regarding the precise language she used. The
instruction in the present case apprised the jury of a
standard that permitted it to consider an impermissibly
broad class of speech sufficient to find guilt. The federal
constitution—as well as fundamental fairness—
demands that a finding with respect to the degree of
offensiveness of the speech—i.e., whether the speech
would provoke an ordinary person, as the recipient
of the abusive language, to respond with immediate
violence—be made, in the first instance, by a properly
instructed jury. Accordingly, I would reverse the judg-
ment of the trial court and remand the case to that
court for a new trial.
In conclusion, I would decline to review whether
there was sufficient evidence to sustain the defendant’s
conviction under the federal fighting words standard
because she has failed to adequately brief her suffi-
ciency claim under this standard. Even if I were to
reach the issue, however, I would conclude that the
test proposed by the majority—that is, a test that evalu-
ates the individual circumstances of the addressee at
a granular level—is not appropriate and is contrary to
United States Supreme Court precedent regarding the
‘‘ordinary person’’ test. Gooding v. Wilson, supra, 405
U.S. 528. Moreover, I would reject the defendant’s claim
that the Connecticut constitution affords greater pro-
tections than the first amendment in this context.
Finally, I would conclude that the trial court’s failure
to properly instruct the jury on the elements of the
fighting words doctrine necessitates a new trial.
Therefore, I concur with the majority to the extent
that it reverses the judgment of the trial court, but
would remand the matter for a new trial.
1
There is some dispute as to what transpired during this phone call. The
defendant testified that she was told that she would be able to retrieve her
money transfer if she were to arrive prior to 10 p.m. Tara Freeman, an
assistant manager at the store with whom the defendant spoke on the phone,
testified that she informed the defendant that it would not be possible for
the defendant to retrieve her money transfer because the employee with
authority to operate the money transfer machine was not present in the
store. Freeman further testified that the defendant told her that ‘‘she really
didn’t give a shit’’ and proceeded to unleash a tirade of profane language
upon Freeman during the phone call. It is unclear which version of the
phone conversation was credited by the jury because such a factual finding
was not necessary for the jury to reach its verdict.
2
Freeman testified that the defendant raising her cane perhaps ‘‘was part
of her talking . . . .’’
3
The defendant conceded that she had yelled and cursed at the manager
using terms such as ‘‘bitch’’ and ‘‘shove it.’’ She testified that she had ‘‘proba-
bly’’ used the term ‘‘fat fucking bitch’’ and ‘‘might have’’ said ‘‘cunt.’’ She
said she ‘‘wouldn’t doubt’’ that she had said ‘‘fuck you.’’
4
The defendant was also charged with two counts of criminal threatening
for events that took place after she departed the store. She was acquitted
on one of the threatening counts and the state entered a nolle on the
remaining threating count after the jury was unable to reach a verdict. At
a pretrial hearing, the state clarified that the threatening charges arose out
of conduct alleged to have occurred after the defendant walked out of the
store. Specifically, the state alleged that the defendant called the store from
the parking lot, employed more coarse language and, believing she was
speaking to Freeman, told another store employee to come outside where
‘‘there was a gun waiting . . . .’’ With respect to the breach of the peace
count pertinent to this appeal, the state confirmed that the conduct giving
rise to the count took place solely in the store. Consequently, the facts set
forth herein pertain only to the breach of the peace count.
5
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: (1) Engages in fighting or in violent, tumultuous or
threatening behavior in a public place; or (2) assaults or strikes another;
or (3) threatens to commit any crime against another person or such other
person’s property; or (4) publicly exhibits, distributes, posts up or advertises
any offensive, indecent or abusive matter concerning any person; or (5) in
a public place, uses abusive or obscene language or makes an obscene
gesture; or (6) creates a public and hazardous or physically offensive condi-
tion by any act which such person is not licensed or privileged to do. . . .’’
6
It is not clear if the threat was a threat of violence.
7
‘‘[T]o avoid invalidation of § 53a-181 (a) (3) on grounds of overbreadth,
we adopt, by way of judicial gloss, the conclusion that, when a police officer
is the only person upon whose sensibilities the inflammatory language could
have played, a conviction can be supported only for [e]xtremely offensive
behavior supporting an inference that the actor wished to provoke the
policeman to violence.’’ (Internal quotation marks omitted.) State v. DeLor-
eto, supra, 265 Conn. 169.
The majority relies on In re Nickolas S., 226 Ariz. 182, 188 P.3d 446 (2011),
in support of its position that we should consider the addressee’s position
of a store manager. In that case, the Arizona Supreme Court held that it
was not likely an average teacher would respond to a student’s ‘‘profane
and insulting outburst’’ with violence. Id., 188. Perhaps a compelling case
could be made for adopting a narrower rule with respect to speech directed
at teachers by their students. Like police officers, teachers hold a unique
role in society. Teachers undergo extensive training and certification in
order to serve in their role. See General Statutes § 10-144o et seq. Given
such training, certification, and public regulation, society could reasonably
expect a teacher to ‘‘exemplify a higher level of professionalism . . . .’’ In
re Nickolas S., supra, 188. If a case implicating speech directed at a teacher
by a student were to arise, perhaps we would consider a categorical rule
like the one we adopted with respect to speech directed at police officers
in DeLoreto. This question, however, does not arise in the present case.
8
Violence, of course, occurs on a spectrum. The test is not whether an
ordinary person would immediately kill, pummel, or punch the speaker if
addressed with fighting words. It is whether an ordinary person would
respond with any immediate violence, even a weak slap or grab.
9
I reject the majority’s attempt to distinguish Szymkiewicz on the ground
that the defendant in that case was convicted under a different section of
the breach of peace statute. Nevertheless, the court still analyzed the case
under the fighting words doctrine.
10
It is of no moment that the state addressed whether the evidence was
sufficient under the first amendment standard in its brief. State v. Buhl,
supra, 321 Conn. 728–29 (‘‘[a]n appellant cannot, however, rely on the appel-
lee to decipher the issues and explain them [on appeal]’’).
11
The defendant seeks review of her unpreserved state constitutional
claim pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989). ‘‘Under Golding, a defendant may prevail on an unpreserved claim
only if the following conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v. Saturno, 322 Conn. 80,
89–90, 139 A.3d 629 (2016); see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d
1188 (2015) (modifying third prong of Golding). The state concedes that
the first and second conditions are met in the present case, but maintains
that the defendant cannot prevail because she has failed to prove that a
constitutional violation exists. In view of the conclusion reached in part III
of this concurring and dissenting opinion, I agree with the state that the
defendant has failed to prove that a constitutional violation exists under
our state constitution.
12
I address each factor somewhat out of order to maintain a logical
structure to the analysis of this issue in the present case.
13
This interpretation of § 4 is based upon an understanding of the framers’
sentiments during constitutional debates. See Cologne v. Westfarms Associ-
ates, supra, 192 Conn. 63–64 n.9. Specifically, this court noted that, although
there were some during debate that ‘‘would leave out’’ that provision ‘‘consid-
er[ing] the whole purpose of it answered in the next section,’’ there were
others that disagreed. (Internal quotation marks omitted.) Id. Specifically,
this court took note of the following point made during debate: ‘‘Every
citizen has the liberty of speaking and writing his sentiments freely, and it
should not be taken away from him; there was a very great distinction
between taking away a privilege, and punishing for an abuse of it—to take
away the privilege, is to prevent a citizen from speaking or writing his
sentiments—it is like appointing censors of the press, who are to revise
before publication—but in the other case, every thing may go out, which
the citizen chooses to publish, though he shall be liable for what he does
publish [and that] the [section] was important . . . .’’ (Emphasis in original;
internal quotation marks omitted.) Id. In so doing, this court also noted that
‘‘[a] broader proposal which prohibited the molestation of any person for
his opinions on any subject whatsoever was considered at the convention
but rejected.’’ Id., 64 n.9.
14
The defendant claims that fighting words did not fall within the ambit
of the extant statutory offenses implicating pure speech at the time of the
ratification of the constitution. In her brief, the defendant adumbrates the
following closely related statutory offenses: (1) ‘‘An Act to prevent the
practice of Duelling’’; Public Statute Laws of the State of Connecticut (1808)
tit. LIII, § 1, p. 241; (2) ‘‘An Act against breaking the Peace’’; Public Statute
Laws of the State of Connecticut (1808) tit. CXXV, § 1, p. 545; and (3) ‘‘An
Act against profane Swearing and Cursing’’; Public Statute Laws of the State
of Connecticut (1808) tit. CLVI, § 1, p. 639.
The provision against dueling punished challenging another person to
fight with a dangerous weapon. Public Statute Laws of the State of Connecti-
cut (1808) tit. LIII, § 1, p. 241. The provision against profane swearing and
cursing proscribed imprecation of future divine vengeance against another
person. Public Statute Laws of the State of Connecticut (1808) tit. CLVI,
§ 1, p. 639; see also Holcomb v. Cornish, 8 Conn. 375, 380 (1831).
‘‘An Act against breaking the Peace,’’ which the most analogous statute
to § 53a-181 (a) (5), made it a crime to ‘‘disturb, or break the peace, by
tumultuous and offensive carriages, [threatening], traducing, quarrelling,
challenging, assaulting, beating, or striking another person . . . .’’ Public
Statute Laws of the State of Connecticut (1808) tit. CXXV, § 1, p. 545.
According to the defendant, the dictionary definitions of these key words
that comprise the statutory language reveal that only violent conduct or
defamation would have been sufficient to make out a violation.
15
The state notes that the Ludlow Code of 1650 recognized liberties, but
only of ‘‘[every] man in his place and proportion . . . .’’ 1 Colonial Records
of Connecticut 1636-1665, p. 509. The state also cites Chief Justice Zephaniah
Swift’s statement with respect to the qualified nature of individual liberty
that human nature cannot ‘‘bear total servitude, or total liberty.’’ (Emphasis
omitted.) 1 Z. Swift, A System of the Laws of the State of Connecticut (1795)
p. 31.
16
Although Avery postdates ratification of the constitution by ten years,
this court has previously acknowledged that it is appropriate to look to case
law in close temporal proximity to 1818 to better understand the original
intent of the constitutional framers. State v. Joyner, 225 Conn. 450, 462, 625
A.2d 791 (1993); see also State v. Lamme, 216 Conn. 172, 180–81, 579 A.2d
484 (1990) (relying on case from 1837 for guidance).
17
The preface to volume I of Swift’s Digest of 1823 notes that the principles
cited therein were ‘‘the most important principles of the common law applica-
ble in this [s]tate . . . .’’ The relevant theory of criminal liability was listed
under the heading ‘‘of Breach of the Peace’’ and further classified under
the subheading ‘‘of Libel.’’ 2 Z. Swift, A Digest of the Laws of the State of
Connecticut (1823) pp. 337, 340. Swift does state at the beginning of the
subpart on the subject of libel that while ‘‘the common law on this subject
is in force here,’’ prosecutions for libel had not been brought in the state.
Id., p. 340. In Avery, this court controverted Swift’s observation regarding
the lack of libel prosecutions, pointing to prosecutions in 1806 and 1818.
State v. Avery, supra, 7 Conn. 269–70.
18
In 1865, the General Assembly passed a law making the use of abusive
language a statutory offense. Public Acts 1865, Chap. LXXXVI, pp. 80–81.
The underlying rationale for the statute was that ‘‘in the exercise of a
malicious ingenuity one person could insult another, injure his character,
wound his feelings, and provoke him to violence, in a mode against which
there existed no precise and adequate provision of law . . . .’’ (Emphasis
added.) State v. Warner, 34 Conn. 276, 278–79 (1867).
19
The defendant is incorrect that, because of the absence of appellate
case law discussing the scope of the fighting words doctrine under the
Connecticut constitution, this court simply writes on a blank slate, unguided
by state appellate precedents. First, the absence of case law on the matter
strongly suggests that this factor does not support the defendant’s position.
See State v. Skok, 318 Conn. 699, 709, 122 A.3d 608 (2015) (‘‘because Connecti-
cut courts have not yet considered whether article first, § 7, [of the Connecti-
cut constitution] provides greater protection than the federal constitution
with respect to recording telephone conversations with only one party’s
consent, the second Geisler factor also does not support the defendant’s
claim’’). Second, in Trusz v. UBS Realty Investors, LLC, supra, 319 Conn.
195–97, this court looked to appellate precedents not for controlling author-
ity on the precise legal issue at hand; rather, it looked to appellate authority
for broader principles that underpin this state’s expressive rights jurispru-
dence to inform the analysis. In Trusz, this court looked to State v. Linares,
supra, 232 Conn. 386, for the state constitutional expressive rights principle
of favoring flexible, case-by-case analytic frameworks over rigid, categorical
tests. See Trusz v. UBS Realty Investors, LLC, supra, 195. Additionally, this
court looked to the Appellate Court decision in State v. DeFusco, 27 Conn.
App. 248, 256, 606 A.2d 1 (1992), aff’d, 224 Conn. 627, 620 A.2d 746 (1993),
for the broad proposition that the Connecticut constitution has tended to
preserve civil liberty protections previously afforded by the federal constitu-
tion, but from which the United States Supreme Court has retreated. See
Trusz v. UBS Realty Investors, LLC, supra, 196–97.
20
The state also points out that the Appellate Court has incorporated the
fighting words doctrine into the expressive rights provisions of the state
constitution. See State v. Caracoglia, supra, 78 Conn. App. 110. In Caracog-
lia, the court held that that § 53a-181 (a) was not facially overbroad under
the state constitution. Id., 110–11. In that case, however, the defendant did
not appear to advance the theory that the Connecticut constitution afforded
broader protection relative to fighting words than the federal constitution.
Id. Accordingly, I conclude that case adds little to the analysis of the scope
of the fighting words doctrine.
21
See Connick v. Myers, supra, 461 U.S. 142 (in determining scope of
public employee’s right to free speech in workplace, court must seek ‘‘a
balance between the interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the [s]tate, as an employer,
in promoting the efficiency of the public services it performs through its
employees’’ [internal quotation marks omitted]); Pickering v. Board of Edu-
cation, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (same).
22
The standard adopted in Trusz is, at least arguably, not quite as permis-
sive as the Connick/Pickering test. The test adopted in Trusz allows an
employee to prevail only if ‘‘he speaks on a matter of unusual importance
and satisfies high standards of responsibility in the way he does it.’’ (Internal
quotation marks omitted.) Trusz v. UBS Realty Investors, LLC, supra, 319
Conn. 204; but see id., 204 n.19 (discussing whether the test adopted was
actually a modification of the Pickering test).
23
The statute at issue in Sinchuk was entitled ‘‘An Act Concerning Sedi-
tion,’’ and, on its face, appeared ‘‘to penalize three classes of publications:
(1) disloyal, scurrilous or abusive matter concerning the form of government
of the United States, its military forces, flag or uniform; (2) any matter
intended to bring them into contempt; (3) or which creates or fosters opposi-
tion to organized government.’’ (Internal quotation marks omitted.) State v.
Sinchuk, supra, 96 Conn. 607.
24
Indeed, in Winters v. New York, 333 U.S. 507, 520, 68 S. Ct. 665, 92 L.
Ed. 840 (1948), the United States Supreme Court invalidated a New York
statute similar to that at issue in McKee on the basis of vagueness. The
court noted that the statute at issue in McKee was determined by this court
to be in conformity with state constitutional expressive rights provisions,
but that the law was not challenged under the United States constitution.
Id., 512. The narrow holdings of Pape and Sinchuk are likewise dubious in
light of Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430
(1969), and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11
L. Ed. 2d 686 (1964).
25
To the contrary, these cases provide highly relevant insight into the
expressive rights principles that animate this state’s more modern state
constitutional expressive rights jurisprudence. Indeed, in State v. Linares,
supra, 232 Conn. 382, this court favorably cited State v. McKee, supra,
73 Conn. 28–29, for its insight into the importance of free expression in
democratic society.
26
Article first, § 8, of the Oregon constitution provides: ‘‘No law shall be
passed restraining the free expression of opinion, or restricting the right to
speak, write, or print freely on any subject whatever; but every person shall
be responsible for the abuse of this right.’’
27
The defendant cited the fact that in early Vermont ‘‘the language of
profanity was the common dialect’’ and that the state reelected an incarcer-
ated congressman who was convicted under the Sedition Act of 1798. (Inter-
nal quotation marks omitted.) State v. Read, supra, 165 Vt. 154.
28
That statement provided in relevant part as follows: ‘‘ ‘In your . . .
resolution you . . . severely reprehend the act of [c]ongress commonly
called ‘‘the [s]edition bill.’’ If we possessed the power you assumed, to
censure the acts of the [g]eneral [g]overnment, we could not consistently
construe the [s]edition bill unconstitutional; because our own constitution
guards the freedom of speech and the press in terms as explicit as that of
the United States, yet long before the existence of the [f]ederal [c]onstitution,
we enacted laws which are still in force against sedition, inflicting severer
penalties than this act of [c]ongress. And although the freedom of speech
and of the press are declared unalienable in our bill of rights, yet the railer
against the civil magistrate, and the blasphemer of his [m]aker, are exposed
to grievous punishment. And no one has been heard to complain that these
laws infringe our state [c]onstitution.’ ’’ (Emphasis omitted.) State v. Read,
supra, 165 Vt. 155.
29
I discuss Cantwell v. Connecticut, supra, 310 U.S. 296, under the federal
precedent prong because it is an important foundation of the federal fighting
words doctrine. Additionally, the defendants in that case did not make a
constitutional claim with respect to the relevant charge, they made a suffi-
ciency of the evidence claim. State v. Cantwell, 126 Conn. 1, 5–6, 8 A.2d
533 (1939), rev’d, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). Accord-
ingly, with respect to this state’s constitutional expressive rights jurispru-
dence, this case is of little value and does not fit as well with the cases
directly implicating state constitutional principles.
30
The defendants in that case did not challenge the breach of the peace
conviction on state constitutional grounds. See footnote 29 of this concurring
and dissenting opinion. The absence of even a constitutional argument with
respect to that conviction is particularly noteworthy given the fact that,
though not relevant to this discussion, the defendants in that case challenged
their conviction of solicitation without a permit on state constitutional
expressive rights grounds. See State v. Cantwell, supra, 126 Conn. 4–5.
31
Specifically, this court found sufficient evidence to support the breach
of peace conviction against one of the defendants, Jessie Cantwell. State v.
Cantwell, supra, 126 Conn. 6–8. This conclusion was based on the following
facts: ‘‘Jesse Cantwell stopped John Ganley and John Cafferty, both of whom
are Catholics, and receiv[ed] permission [to play a] phonograph record . . .
which attacked that religion and church. On hearing it, Ganley felt like
hitting Cantwell and told him to take his bag and victrola and be on his
way. If he had remained he might have received physical violence. Cafferty’s
mental reaction was to put Jesse [Cantwell] off the street and he warned
him that he had better get off before something happened to him.’’ State v.
Cantwell, supra, 126 Conn. 6.
32
The court overturned the breach of peace conviction of the other two
defendants because the record revealed only that they had been engaged
in simple canvassing. State v. Cantwell, supra, 126 Conn. 7–8.
33
The defendant in Chaplinsky was convicted under a statute providing
as follows: ‘‘No person shall address any offensive, derisive or annoying
word to any other person who is lawfully in any street or other public place,
nor call him by any offensive or derisive name, nor make any noise or
exclamation in his presence and hearing with intent to deride, offend or
annoy him, or to prevent him from pursuing his lawful business or occupa-
tion.’’ (Internal quotation marks omitted.) Chaplinsky v. New Hampshire,
supra, 315 U.S. 569.
34
Additionally, a defendant is protected from punishment for negligently
using fighting words by virtue of the fact that the breach of the peace statute
has a scienter requirement.
35
The defendant has also suggested that the standard should be a more
subjective one, looking at the circumstances of the recipient of the abusive
language. The United States Supreme Court has observed that the fighting
words doctrine may require a narrower scope in cases involving police
officers because, in light of their training and experience, they may be
expected to exercise a higher degree of restraint. Houston v. Hill, supra,
482 U.S. 462; Lewis v. New Orleans, supra, 415 U.S. 135 (Powell, J., concur-
ring); see also Model Penal Code § 250.1, Comment 4 (c) (Tent. Draft No.
13, 1960). Indeed, this court has placed such a judicial gloss on § 53a-181
(a) (3). See State v. DeLoreto, supra, 265 Conn. 168–69. I conclude that it
would not be appropriate to implement a more subjective test. The flaw in
such a standard is twofold: (1) it invites the speaker to make value judgments
about the proclivity for violence of the individuals involved, and (2) creates
corresponding asymmetry in expressive liberty. The first flaw is that it invites
the fact finder to make judgments about the circumstances of the individuals
involved and the general likelihood that the recipient would respond vio-
lently, which invites judgments about the violent tendencies based on traits
such as profession, size, age, physical capability, or even gender and race.
Second, the asymmetry in expressive liberty is created by virtue of the fact
that abusive language against those less likely to respond violently such as
the feeble would be protected, whereas abusive language directed against
a strong, chauvinistic person would not be protected. See T. Shea, ‘‘ ‘Don’t
Bother to Smile When You Call Me That’—Fighting Words and the First
Amendment,’’ 63 Ky. L.J. 1, 22 (1975); see also K. Greenawalt, supra, 42
Rutgers L. Rev. 297–98. Additionally, a more subjective inquiry would convert
the rule from one predicated on a community standard to one that measures
free speech protection by the individualized violent proclivities of the recipi-
ent of the abusive language, and the touchstone would be whether the
recipient did, in fact, respond with violence.
36
Even though I would reverse the judgment of the trial court on the basis
of instructional impropriety; see part IV of this concurring and dissenting
opinion; I ‘‘must address a defendant’s insufficiency of the evidence claim,
if the claim is properly briefed and the record is adequate for the court’s
review, because resolution of the claim may be dispositive of the case and
a retrial may be a wasted endeavor.’’ (Internal quotation marks omitted.)
State v. Padua, 273 Conn. 138, 179, 869 A.2d 192 (2005).
37
The defendant also urges this court to overrule the implied waiver
rule set forth in Kitchens, incorporating by reference the arguments of the
defendant in State v. Herring, 323 Conn. 526, 147 A.3d 653 (2016). We
recently considered the implied waiver rule’s continuing vitality in State v.
Bellamy, 323 Conn. 400, 402–403, 147 A.3d 655 (2016). For the reasons set
forth therein, I would reject the defendant’s request to overrule Kitchens.
38
The United States Supreme Court concluded that state appellate author-
ity construing the relevant breach of peace statute was unconstitutional
where it was construed as follows: ‘‘[W]ords of description, indicating the
kind or character of opprobrious or abusive language that is penalized, and
the use of language of this character is a violation of the statute, even though
it be addressed to one who, on account of circumstances or by virtue of
the obligations of office, cannot actually then and there resent the same by
a breach of the peace . . . .
‘‘Suppose that one, at a safe distance and out of hearing of any other than
the person to whom he spoke, addressed such language to one locked in
a prison cell or on the opposite bank of an impassable torrent, and hence
without power to respond immediately to such verbal insults by physical
retaliation, could it be reasonably contended that, because no breach of the
peace could then follow, the statute would not be violated? . . .
‘‘[T]hough, on account of circumstances or obligations imposed by office,
one may not be able at the time to assault and beat another on account of
such language, it might still tend to cause a breach of the peace at some
future time, when the person to whom it was addressed might be no longer
hampered by physical inability, present conditions, or official position.’’
(Internal quotation marks omitted.) Gooding v. Wilson, supra, 405 U.S. 526,
quoting Elmore v. State, 15 Ga. App. 461, 461–63, 83 S.E. 799 (1914).
39
The state does not dispute the contours of the federal fighting words
doctrine or the substance of the judicial gloss placed on § 53a-181 (a) (5).
40
Portend is defined as follows: (1) ‘‘to give an omen or anticipatory sign
of,’’ and (2) ‘‘indicate, signify.’’ Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2003). In other words, the language could be an anticipatory sign
or indicate violence from the speaker or others at any time, but not necessar-
ily an immediate violent response from the recipient of the abusive language.
41
The instruction also fails to expressly state that the speech must provoke
a violent response from the person to whom the abusive language was
directed.