State v. David Tracy

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.
2015 VT 111
No. 2014-055
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Essex Unit,
Criminal Division
David Tracy March Term, 2015
Robert R. Bent, J.
William H. Sorrell, Attorney General, and Sarah Katz, Assistant Attorney General, Montpelier,
for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Lauren
Migliaccio, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. ROBINSON, J. Defendant David Tracy was convicted of disorderly conduct by
“abusive . . . language,” 13 V.S.A. § 1026(a)(3), following a heated exchange with his daughter’s
basketball coach. The trial court, following a bench trial, concluded that defendant’s language
was not protected by the First Amendment to the United States Constitution because it
constituted “fighting words.” On appeal, defendant argues that the “abusive language” prong of
Vermont’s disorderly-conduct statute is overbroad and impermissibly chills a substantial amount
of constitutionally protected speech without serving a compelling state interest. He further
argues that, even if the statute is constitutional on its face, the speech for which he was convicted
in this case is constitutionally protected. We agree that the speech for which defendant was
convicted is beyond the reach of the abusive-language prong of the disorderly-conduct statute,
and reverse the conviction.
I.
A.
¶ 2. The evidence presented at trial, viewed in the light most favorable to the State’s
case unless the trial court made a specific finding, reflects the following. Defendant’s daughter
was one of fifteen girls on a junior high school girls’ basketball team. The basketball coach did
not play defendant’s daughter in the first two games of the season. Shortly after the end of the
second game, defendant approached the coach and the coach’s nineteen-year-old daughter in the
school parking lot. The coach and her daughter were sitting in their car preparing to leave. The
coach was in the driver’s seat, and the coach’s daughter was in the front passenger seat. The
coach had not yet started the car. It was dark outside, but the parking lot was brightly lit.
¶ 3. Defendant parked his car, approached the coach’s car, and tapped on the driver’s
window. Neither the coach nor the coach’s daughter recognized defendant. The coach rolled the
car window down about a quarter of the way and said “Hi, can I help you?” Defendant
introduced himself by name and as his daughter’s father, and said “I’d like to talk to you for a
minute.” The coach put the window the rest of the way down.
¶ 4. The coach and the coach’s daughter both testified that defendant was calm at the
start of the conversation, but that the exchange soon became heated and agitated. Defendant
began by saying that “he just wanted to know why [the coach] wouldn’t put his daughter in a
game.” During the next few minutes,1 defendant was agitated and used profanity. He kept
1
The coach testified that the exchange lasted “about four or five minutes,” though she
acknowledged that it could have been shorter. Following the trial, defendant requested a new
trial on the ground that the prosecution had only just turned over a video of the incident taken
from a surveillance camera mounted at the school. The trial court viewed the video in
connection with defendant’s motion, and noted that the video, which documents that the
altercation took a little over a minute, was not fully consistent with the coach’s recollection of
2
repeating, “Why can’t you put her in a game for one f’ing minute?” He asked what he could do
to get her in the game, called the coach “a bitch,” and asked her to get out of the car and explain
to his daughter why she was trying to damage her self-esteem.
¶ 5. The exchange came to an end when the coach told defendant that it was her job as
coach to do what was best for the team and not always what is best for individual wants, and that
defendant’s daughter was not ready to play in a game. Defendant said, “You are not the fucking
NBA,” and stood up and moved away from the car window.
¶ 6. The coach said, “This conversation is over . . . You can go to the school tomorrow
and file a complaint, but we’re done here.” The coach then rolled up her window.2 The
defendant had backed away from the coach’s car before this point. As he walked away,
defendant said, “This is fucking unbelievable,” and “You think this is over, this will never be
over.”3
¶ 7. For most of the confrontation, defendant was “in a squatting position, so his knees
were fully bent,” leaning forward with his hands in the car, but his head outside of the car near
the window. The faces of the coach and defendant were about twelve to fourteen inches away
from each other. The coach testified that “I wouldn’t say he was shouting but he certainly had a
the time involved. However, the trial court denied defendant’s motion, and the video is not in
evidence. Accordingly, we accept the coach’s testimony that the exchange lasted four or five
minutes or less.
2
The coach testified that: she did not roll up the window sooner because she was
worried that the window would catch defendant’s arms; she did not drive back because she was
afraid defendant would be injured by the car’s rearview mirror; and she did not pull forward
because a barrier was immediately in front of the car.
3
The coach and her daughter both testified that moments after defendant walked away
from the coach’s car, as the coach was beginning to back out, a white car, moving rapidly,
passed behind her, forcing her to pull forward. To the extent the State sought to prove that
defendant was driving this car, and drove at the coach’s car immediately following the
confrontation, the trial court made it clear in the hearing on defendant’s post-trial motion that
none of its decisions were based upon events involving the vehicles.
3
very elevated” tone, and that he was “very loud”; the coach’s daughter characterized it as
“yelling.”
¶ 8. The coach testified that as defendant spoke he made “a karate-chopping motion”
with his right hand at her clavicle.4 The coach testified that the force of the movement was
“quite light” at first, but became more forceful “as his voice kept rising and he became more
agitated and starting cussing.” For emphasis, while talking with the coach, defendant also
slammed the car with his left hand.
B.
¶ 9. The State initially charged defendant with two misdemeanor offenses: simple
assault by physical menace under 13 V.S.A. § 1023(a)(3) (“A person is guilty of simple assault if
he or she . . . attempts by physical menace to put another in fear of imminent serious bodily
injury”) and disorderly conduct under 13 V.S.A. § 1026(a)(3) (“A person is guilty of disorderly
conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly
creates a risk thereof . . . in a public place, uses abusive or obscene language”).5 After the close
of evidence in the bench trial, the court allowed the State to amend its charge to include an
alternative count of disorderly conduct under 13 V.S.A. § 1026(a)(1), alleging that defendant,
4
The coach also testified that defendant pulled at her coat, causing her fear. The trial
court found that “The whole idea of being grabbed and pulled through the window just
doesn’t . . . resonate with me. There . . . may have been some . . . pieces of it, but it just doesn’t
quite resonate to the degree that’s necessary for a criminal conviction.” At the hearing on the
post-trial motion, the trial court reiterated that it had “discounted pretty much the concept of
being pulled out of the car.” We thus do not assign significance to the State’s evidence as to this
alleged contact.
5
At the time of the charges and trial, this provision was at 13 V.S.A. § 1026(3). In 2013,
the Legislature added subsection (b) to § 1026 and re-lettered the statute accordingly. See 2013
(Adj. Sess.), No. 150, § 3 (approved May 27, 2014, effective July 1, 2014). No substantive
change was made to the sections here at issue. For clarity, we cite to the current version of the
statute.
4
with intent to cause public inconvenience or annoyance, or recklessly creating a risk thereof
“engaged in threatening behavior.”6
¶ 10. The trial court found defendant not guilty of the first count, charging that he
attempted by physical menace to put another in fear of imminent serious bodily injury. With
respect to the newly added charge that he engaged in threatening behavior, the court concluded
that the State had not proven beyond a reasonable doubt that defendant’s conduct was
threatening within the meaning of the statute. The court found defendant guilty of the “abusive
or obscene language” charge. The court explained that pursuant to State v. Read, 165 Vt. 141,
680 A.2d 944 (1996), in order to qualify as abusive language, words need to be “fighting words”
not subject to First Amendment protection. The court elaborated:
Fighting words typically are words which . . . are going to get
somebody’s juices up and create the risk of a response. . . . [The
language used] . . . in conjunction with the repeated tapping
increasing in intensity, the agitation could well fall within that
category. . . . You’ve got this sense of agitation . . .
This did turn into disorderly conduct, abusive. And the agitation
level coupled with the touching, coupled with the words, coupled
with the fact it was in a public place kind of lets the court conclude
that there was a risk of public inconvenience.
There was a risk that . . . the complaining witness was going to do
something. In fact, she talked about maybe trying to do something
like throw her car in reverse and hitting . . . the accelerator . . . and
she stayed because she was worried that she was going to injure
the defendant. I mean, that’s . . . descriptive of the things that
we’re trying to prevent through the disorderly-conduct statute.
We’re trying to . . . keep things from getting out of hand.
¶ 11. After it struck its initial verdict under 13 V.S.A. § 1026(a)(3), and after
considering and rejecting the newly amended charge of disorderly conduct by threatening
6
The trial court allowed this amendment following its initial verdict for defendant on the
assault count, and the State on the disorderly-conduct count. Over defendant’s objection, the
court struck its initial notice of verdict to consider the additional amended charge. The court
indicated that if defendant were convicted of disorderly conduct under both prongs (abusive
language and threatening behavior), the State would be allowed to proceed to sentencing on only
one of the two charges.
5
behavior, the court reaffirmed its verdict for the State on the charge of disorderly conduct by
abusive language. The court explained:
The Court reiterates its conclusion that this became fighting
words by the use of . . . epithets including . . . “bitch,” the tapping
on the . . . shoulder, the escalation of anxiety. It went over the line.
. . . When a parent is upset with a coach for not playing their child,
it’s a legitimate area of discourse between a parent and a coach.
It, however, has its time and place. A dark, even lighted, but an
evening parking lot in a car, you know, where you kind of get
somebody cornered and then with the emotions that come out
make this court conclude that we had, ultimately, disorderly
conduct. It . . . kept escalating . . . until it crossed the line and I
think that line was fighting words were being used.
¶ 12. Following defendant’s motion for a new trial, the trial court reaffirmed its verdict
without written opinion. Defendant appealed.
II.
¶ 13. On appeal, defendant makes two alternative arguments. First, defendant argues
that the “abusive language” prong of the disorderly-conduct statute impermissibly chills a
substantial amount of constitutionally protected speech and is facially overbroad. 7 He argues
(1) that the “abusive language” prong is a content-based restriction on speech without a
compelling state interest, and thus cannot survive strict scrutiny, and (2) that “fighting words” is
an inherently vague and now-obsolete doctrine. In the alternative, defendant argues that even if
we reject his facial challenge, the conviction must be overturned as unconstitutional as applied to
him because the language and conduct at issue did not constitute fighting words. He argues that
his expression here was constitutionally protected speech.
7
Defendant has not made a distinct argument under the free-expression clause of the
Vermont Constitution. See Vt. Const. ch. I, art. 13 (“[T]he people have a right to freedom of
speech.”). We thus do not address the application of state constitutional principles. See Read,
165 Vt. at 153-55, 680 A.2d at 951-52; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233
(1985).
6
¶ 14. We review de novo questions of law, including whether the statute is
constitutional (facially and as applied), and whether defendant’s statements constituted fighting
words. “[W]e are compelled to examine for ourselves the statements in issue and the
circumstances under which they are made to see whether or not they . . . are of a character which
the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth
Amendment, protect. . . . Because of this obligation, we cannot avoid making an independent
constitutional judgment on the facts of the case.” Connick v. Myers, 461 U.S. 138, 148 n.10
(1983) (quotations omitted); see also State v. Green Mountain Future, 2013 VT 87, ¶ 15, 194 Vt.
625, 86 A.3d 981 (stating, in free-speech case, that “[w]e review the trial court’s conclusions of
law, particularly its constitutional decisions, de novo.”). We accept the trial court’s findings of
fact unless clearly erroneous. State v. Rheaume, 2005 VT 106, ¶ 6, 179 Vt. 39, 889 A.2d 711.
A.
¶ 15. We begin with a consideration of the First Amendment case law of the Supreme
Court of the United States, which forms the backdrop for our own evolving construction of the
crime of disorderly conduct by “abusive . . . language.” The First Amendment provides that
“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. This
prohibition has been incorporated against the states by operation of the Fourteenth Amendment.
Thornhill v. Alabama, 310 U.S. 88, 95 (1940). The U.S. Supreme Court has consistently
interpreted the First Amendment to shield a broad and expansive array of speech. Of bedrock
importance is the principle that the First Amendment’s protections extend beyond expressions
“touching upon a matter of public concern.” Connick, 461 U.S. at 147 (“The First Amendment
does not protect speech and assembly only to the extent it can be characterized as political. . . .
We in no sense suggest that speech on private matters . . . carries so little social value . . . that the
7
State can prohibit and punish such expression” (quotation omitted)).8 Put differently, “as a
general matter, . . . government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.” Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564,
573 (2002) (quotation omitted).
¶ 16. Equally fundamental is the principle that “the Constitution protects expression . . .
without regard . . . to the truth, popularity, or social utility of the ideas and beliefs which are
offered.” NAACP v. Button, 371 U.S. 415, 444-45 (1963); Baumgartner v. United States, 322
U.S. 665, 673-74 (1944) (“One of the prerogatives of American citizenship is the right to
criticize . . . and that means not only informed and responsible criticism but the freedom to speak
foolishly and without moderation.”). Thus, “[c]ontent-based regulations are presumptively
invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
¶ 17. While the protections afforded by the First Amendment are broad, they “are not
absolute,” and the U.S. Supreme Court has “long recognized that the government may regulate
certain categories of expression consistent with the Constitution.” Virginia v. Black, 538 U.S.
343, 358 (2003). Certain “narrow and well-defined classes of expression” are seen to carry “so
little social value . . . that the State can prohibit and punish such expression.” Connick, 461 U.S.
at 147.9 In identifying classes of unprotected speech, the Court has “acknowledge[d] . . . the
inherent dangers of undertaking to regulate any form of expression” and has taken care to limit
8
It is true that “where matters of purely private significance are at issue, First
Amendment protections are often less rigorous.” Snyder v. Phelps, 562 U.S. 443, 452 (2011).
Still, the Supreme Court has defined “purely private significance” narrowly. See, e.g., Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761-63 (1985). “Speech deals with
matters of public concern when it can be fairly considered as relating to any matter of political,
social, or other concern to the community, or when it is a subject of legitimate news interest; that
is, a subject of general interest and of value and concern to the public.” Snyder, 562 U.S. at 453
(quotations omitted).
9
See also United States v. Stevens, 559 U.S. 460, 468 (2010) (“From 1791 to the
present, . . . the First Amendment has permitted restrictions upon the content of speech in a few
limited areas, and has never included a freedom to disregard these traditional limitations”
(quotation omitted)).
8
the nature of the class accordingly. Miller v. California, 413 U.S. 15, 23 (1973). “[N]ew
categories of unprotected speech may not be added to the list by a legislature that concludes
certain speech is too harmful to be tolerated.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729,
2734 (2011).
¶ 18. The recognized class of proscribable speech at issue here is “fighting words.”10
The fighting-words doctrine was first articulated in Chaplinsky v. New Hampshire, 315 U.S. 568
(1942). There, the defendant stood on a sidewalk and told an individual: “You are a God
damned racketeer” and “a damned Fascist,” and “the whole government of Rochester are
Fascists or agents of Fascists.” 315 U.S. at 569. The defendant was convicted of violating a
statute prohibiting (in relevant part) “address[ing] any offensive, derisive or annoying word to
any other person” in a public place. Id. The Court upheld the conviction, concluding that
“insulting or ‘fighting’ words”—“those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace”—are not constitutionally protected because “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. at 572. The Court found the statute to be “narrowly drawn
and limited to define and punish specific conduct lying within the domain of state power, the use
in a public place of words likely to cause a breach of the peace,” and that the defendant’s use of
epithets in his harangue were “likely to provoke the average person to retaliation, and thereby
cause a breach of the peace.” Id. at 573-74.
¶ 19. Since Chaplinsky, the U.S. Supreme Court has repeatedly emphasized the breadth
of the First Amendment’s protection for speech that is disruptive, insulting, inciting, and
10
Other classes of unprotected speech are “obscenity, defamation, fraud, incitement, . . .
speech integral to criminal conduct,” Stevens, 559 U.S. at 468 (citations omitted), and “true
threats,” statements “where the speaker means to communicate a serious expression of an intent
to commit an act of unlawful violence to a particular individual or group of individuals,” Black,
538 U.S. at 359.
9
inflammatory.11 In Terminiello v. Chicago, 337 U.S. 1, 2 (1949), the defendant gave a “vicious”
speech to eight hundred people in an auditorium, “criticiz[ing] various political and racial
groups” and condemning the thousand protestors who had gathered outside the hall in an “angry
and turbulent” crowd. The defendant was subsequently convicted under a disorderly-conduct
statute prohibiting activity that “stirs the public to anger, invites dispute, brings about a condition
of unrest, or creates a disturbance.” Id. at 3.
¶ 20. The Court reversed, concluding that “[a] conviction resting on any of those
grounds may not stand.” Id. at 5. The Court noted that “[s]peech is often provocative and
challenging,” and may “have profound unsettling effects.” Id. at 4. The provocative nature of
speech, the Court found, is the very reason it is constitutionally protected: the “function of free
speech under our system of government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger.” Id. For that reason, the Court concluded that “freedom of speech,
though not absolute, is nevertheless protected against censorship or punishment, unless shown
likely to produce a clear and present danger of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest.” Id. (citation omitted).12
11
The earliest case in this genus is arguably Cantwell v. Connecticut, which predated
Chaplinsky. In that case, a Jehovah’s Witnesses proselytizer entered a heavily Catholic urban
neighborhood, stopped two men on the street, got their permission to play a phonograph record,
and then played a record that attacked the religion and church of the two men, who were
Catholics. 310 U.S. 296, 301-03 (1940). “Both were incensed by the contents of the record and
were tempted to strike Cantwell unless he went away. On being told to be on his way he left their
presence.” Id. at 303. The Court reversed the disorderly conduct conviction. While
acknowledging that “the contents of the record” were highly inflammatory and “not unnaturally
aroused animosity,” the Court determined that the statute was not “narrowly drawn to define and
punish specific conduct as constituting a clear and present danger to a substantial interest of the
State” or “clear and present menace to public peace and order.” Id. at 311. The Court
emphasized the lack of any “assault or threatening of bodily harm,” “truculent bearing,”
“intentional discourtesy” or “epithets or personal abuse.” Id. at 310.
12
The Court distinguished Terminello in Feiner v. New York, 340 U.S. 315 (1951).
There, the defendant was convicted of disorderly conduct after delivering a loud, inflammatory,
10
¶ 21. In Cohen v. California, 403 U.S. 15 (1971), the Court reversed the conviction of a
defendant for disorderly conduct for walking through a courthouse corridor wearing a jacket
bearing the words “Fuck the Draft.” He was charged under a statute prohibiting the “disturb(ing)
the peace or quiet of any neighborhood or person, . . . by . . . offensive conduct.” Id. at 16. The
Court held that “the State may not, consistently with the First and Fourteenth Amendments,
make the simple public display here involved of this single four-letter expletive a criminal
offense.” Id. at 26. The Court rejected the State’s fighting-words argument because the use of
the word on Cohen’s jacket was “clearly not ‘directed to the person of the hearer,’ ” and “[n]o
individual actually or likely to be present could reasonably have regarded the words on
appellant’s jacket as a direct personal insult,” and thus the word was not “inherently likely to
provoke violent reaction.” Id. at 20.13 See also Hess v. Indiana, 414 U.S. 105, 107 (1973)
(demonstrator’s statement “We’ll take the fucking street again,” made while officers attempted
to clear street, could not amount to fighting words because statement was not directed at any
particular person or group of people).
¶ 22. The year after Cohen, in Gooding v. Wilson, 405 U.S. 518, 519-20 (1972), the
Court held a statute criminalizing the unprovoked use, in the presence of another, of
“opprobrious words or abusive language, tending to cause a breach of the peace,” to be facially
vague and overbroad. The Court explained that Chaplinsky excluded from the free-speech
racially charged sidewalk speech through a loudspeaker to a large crowd, in which the defendant
exhorted one race to “rise up in arms” against another. The crowd was ready to boil over into
fights between those for and those against the speaker, and the defendant refused police officers’
entreaties to cease. Id. at 316-18. The Court affirmed the conviction, concluding that while “[a]
State may not unduly suppress free communication of views . . . under the guise of conserving
desirable conditions,” the speaker had “undertake[n] incitement to riot.” Id. at 320-21. Given
the imminence of “greater disorder,” and the fact that defendant continued to speak after
repeated requests to stop, the Court concluded that “the interest of the community in maintaining
. . . public peace, order and authority” justified the conviction. Id.
13
Cohen also held that the power to constitutionally prohibit obscene expression extends
only to expression that is, “in some significant way, erotic.” 403 U.S. at 20.
11
protection of the First Amendment only those words that “have a direct tendency to cause acts of
violence by the person to whom, individually, the remark is addressed.” Id. at 523. Concluding
that the Georgia courts had failed to limit the statute’s reach to cases where there was a
“likelihood that the person addressed would make an immediate violent response,” the Court
struck down the Georgia statute. Id. at 528.
¶ 23. Two years later, in Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974), the
Court struck down as facially overbroad a city ordinance making it unlawful “to curse or revile
or to use obscene or opprobrious language toward or with reference to any member of the city
police while in the actual performance of his duty.” The Court concluded, “At the least, the
proscription of the use of ‘opprobrious language,’ embraces words that do not ‘by their very
utterance inflict injury or tend to incite an immediate breach of the peace.’ ” Id. at 133. Because
the Louisiana courts had not sufficiently narrowed the reach of the statute by interpretation, the
Court struck down the statute on its face. Id. at 134. In a concurring opinion in Lewis, Justice
Powell emphasized that “words may or may not be ‘fighting words,’ depending upon the
circumstances of their utterance,” and that “words may well . . . convey[] anger and frustration
without provoking a violent reaction from the [listener].”14 Id. at 135 (Powell, J., concurring).
¶ 24. Subsequently, the Court reiterated that only words that are likely to provoke the
average person to immediate retaliation qualify as “fighting words.” For example, in Texas v.
Johnson, 491 U.S. 397, 409 (1989), the Court struck down a statute prohibiting the desecration of
14
The courts have taken Cohen and its progeny, including Lewis, to mean that there are
no “per se” fighting words, and that courts must instead assess all the relevant circumstances to
determine whether the words were likely to result in an imminent violent response. See, e.g.,
Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (even if “the finger” is “properly considered
an obscene gesture,” “such a gesture alone cannot establish probable cause to believe a
disorderly conduct violation has occurred”); Sandul v. Larion, 119 F.3d 1250, 1256 (6th Cir.
1997) (it is clearly established “that the mere words and gesture ‘f—k you’ are constitutionally
protected speech.”); Downs v. State, 366 A.2d 41, 44 (Md. 1976) (same).
12
an American flag. The Court specifically rejected the State’s argument that “its interest in
preventing breaches of the peace” rendered the statute constitutional, stating that:
[W]e have not permitted the government to assume that every
expression of a provocative idea will incite a riot, but have instead
required careful consideration of the actual circumstances
surrounding such expression, asking whether the expression is
directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.
....
Nor does Johnson’s expressive conduct fall within that small
class of fighting words that are likely to provoke the average
person to retaliation, and thereby cause a breach of the peace. No
reasonable onlooker would have regarded Johnson’s generalized
expression of dissatisfaction with the policies of the Federal
Government as a direct personal insult or an invitation to exchange
fisticuffs.
Id. at 409 (quotations omitted).
¶ 25. The Court has held that, although “fighting words” may be proscribable, the State
may not restrict such speech on the basis of the message communicated using fighting words.
R.A.V., 505 U.S. at 391 (striking down ordinance prohibiting “fighting words” that insult or
provoke violence “on the basis of race, color, creed, religion or gender”).
¶ 26. Since R.A.V., the Court has continued to reaffirm that “fighting words” are a
category of unprotected speech, but has not actually applied the doctrine.15 In fact, in Snyder v.
15
See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (listing “so-called
‘fighting words’ ” in list of categories of expression historically subject to content-based
restriction); Entm’t Merchs. Ass’n, 131 S. Ct. at 2733 (including “fighting words” in list of
“well-defined and narrowly limited classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem”); Black, 538 U.S. at 359
(identifying fighting words—“those personally abusive epithets which, when addressed to the
ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent
reaction” as an example of speech proscribable under the First Amendment, and upholding
statute prohibiting cross-burning with intent to discriminate on other grounds); Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 774 (1994) (“Absent evidence that the protesters’
speech is independently proscribable (i.e., ‘fighting words’ or threats), or is so infused with
violence as to be indistinguishable from a threat of physical harm, this provision cannot stand.”
(citation omitted)).
13
Phelps, the Court held that although a fundamentalist church’s picketing of a soldier’s funeral
with highly inflammatory signs was “particularly hurtful” to the soldier’s father—and although
the demonstration’s “contribution to public discourse” was “negligible”—the inflammatory
picketing was protected free speech, and “cannot be restricted simply because it is upsetting or
arouses contempt,” or because it could fairly be termed “outrageous.” 562 U.S. at 455-60.
Despite the exceptionally provocative nature of the speech in question,16 the majority made no
reference to Chaplinsky or fighting words. Only the lone dissenter invoked Chaplinsky and the
fighting-words doctrine in arguing for affirmance of the trial court’s judgment for emotional
distress and intrusion upon seclusion. Id. at 465-66 (Alito, J., dissenting).
B.
¶ 27. Our own case law concerning the scope and constitutionality of Vermont’s
disorderly-conduct statute has developed in parallel with these Supreme Court precedents. As
written, the relevant section of the disorderly-conduct statute criminalizes the use of “abusive or
obscene language” in a public place if accompanied by an intent to cause public inconvenience
or recklessness with respect to that risk. 13 V.S.A. § 1026(a)(3). In State v. Read, this Court
narrowed the breadth of this prohibition to conform with First Amendment limitations. 165 Vt.
at 145-52, 680 A.2d at 946-51. In Read, the defendant was transported to the waiting area at a
hospital emergency room after being arrested for drunken driving. The defendant then became
“very uncooperative,” “aggressive,” “argumentative,” “insulting,” and “profane.” In front of the
arresting state trooper, patients, and hospital staff, the defendant loudly shouted, “You’re a
fucking piece of shit . . . You’re a fucking asshole . . . I want you to get out of my face. You’re
dead.” The defendant’s “arms were flexed and rigid, his fists were clenched, his teeth were
16
The signs stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is
Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,”
“Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You're Going to Hell,” and “God
Hates You.” Snyder, 562 U.S. at 448.
14
grinding, and his facial expression was rigidly set.” When the trooper attempted to calm the
defendant and warned him that he could face criminal charges for his behavior, the defendant
stated: “Go ahead, you fucking pig. You’re a stupid fucking pig.” Id. at 144, 680 A.2d at 946.
¶ 28. On appeal from the defendant’s conviction of disorderly conduct by “abusive
language,” we considered the defendant’s argument that the provision “is unconstitutionally
vague and overbroad, in violation of the First and Fourteenth Amendments to the United States
Constitution.” Id. at 145, 680 A.2d at 946-47. Because “the ‘abusive language’ provision
proscribes speech, rather than conduct,” we held that “it can withstand an attack upon its facial
constitutionality only if ‘it is not susceptible of application to speech, although vulgar or
offensive, that is [constitutionally] protected.’ ” Id. at 146, 680 A.2d at 947 (quoting Gooding,
405 U.S. at 520). We noted our obligation to construe statutes to avoid constitutional infirmities,
“where possible,” and stated that we “will not reach challenges based on facial
unconstitutionality if there is a readily apparent construction [that] suggests itself as a vehicle for
rehabilitating the statut[e].” Id. (quotations omitted). Consistent with this approach, we
considered the scope of the First Amendment’s protection of free speech and held “that the
‘abusive language’ provision . . . is properly construed as proscribing only ‘fighting words,’ ”
and can apply “only when a defendant’s spoken words, when directed to another person in a
public place, tend to incite an immediate breach of the peace,” as required by Chaplinsky.17 Id.
17
We subsequently followed the same logic in narrowing the reach of a different prong
of the disorderly-conduct statute in order to avoid constitutional infirmity. See State v. Colby,
2009 VT 28, ¶¶ 4-12, 185 Vt. 464, 972 A.2d 197 (construing prohibition against “disturb[ing]
any lawful assembly or meeting of persons” to prohibit only “substantial impairment of the
effective conduct of a meeting,” objectively viewed, such that “conduct that causes a lawful
meeting to terminate prematurely” or “numerous and sustained efforts to disrupt a meeting” was
prohibited, but mere heckling, booing, or harsh questioning was not); see also State v. Albarelli,
2011 VT 24, ¶¶ 9, 24, 189 Vt. 293, 19 A.3d 130 (concluding that defendant’s rant directed at
campaign volunteers in public space is insufficient to support conviction under “threatening
behavior” prong of disorderly conduct statute where defendant’s actions did not “convey any
intent to harm another person”).
15
at 148, 680 A.2d at 948 (quotation omitted).18 With the statute thus narrowed, we concluded that
the statute was properly applied to the defendant. We reasoned that the defendant’s “words,
standing alone,” might be “without consequence,” but that they constituted fighting words in the
context of an extended “tirade,” directed at an individual and “shouted by an obviously
intoxicated person in a hostile . . . confrontation . . . in front of a crowd of people,” while the
defendant was “flexing his arms, clenching his fists, and grinding his teeth.” Id. at 152, 680
A.2d at 950-51 (quotation omitted).
¶ 29. Two justices dissented, taking issue with the majority’s gloss on the statute as
well as its application to the facts of the case. Id. at 156-59, 680 A.2d at 953-55 (Morse, J.,
dissenting). The dissent argued that “the ‘fighting words’ doctrine has become an archaic relic,
which found its genesis in more chauvinistic times when it was considered bad form for a man to
back down from a fight.” Id. at 156, 680 A.2d at 953. The dissent noted that since Chaplinsky,
the U.S. Supreme Court has “never since used the ‘fighting words’ doctrine to uphold a
conviction.” Id. The dissent argued that “to expect a person to retaliate with his fists when
provoked by speech . . . runs counter to what the law should endorse.” Id. Moreover, on the
facts of the case, the dissent argued that the trial court misapplied the doctrine: “There is nothing
in this record or common sense to suggest that even an average person would have been so
provoked by defendant’s behavior that [he or she] would have physically attacked defendant.”
Id. at 157-58, 680 A.2d at 954.
¶ 30. In Long v. L’Esperance, we considered a civil suit against a police officer for
unlawful arrest brought by a plaintiff who had been arrested for disorderly conduct by “abusive
18
We acknowledged in Read that the U.S. Supreme Court, in Gooding, held that the
word “abusive” has “greater reach than ‘fighting’ words” and thus the similar disorderly-conduct
statute at issue there “ ‘swe[pt] too broadly’ by making it a crime ‘merely to speak words
offensive to some who hear them.’ ” Read, 165 Vt. at 148, 680 A.2d at 948 (quoting Gooding,
405 U.S. at 525, 527). We distinguished the Vermont statute “from the Georgia statute at issue
in Gooding,” however, “because the Vermont statute requires an explicit intent element.” Id.
16
or obscene language” after he told an police officer at a DUI roadblock that he was irritated to
have to wait “in this fucking traffic for so long.” 166 Vt. 566, 569, 701 A.2d 1048, 1051 (1997).
Even though the arrest took place before this Court had narrowed the reach of the abusive-
language prong of the disorderly-conduct statute in Read, we concluded that the comment was
protected by the First Amendment. Id. at 573-74, 701 A.2d at 1053-54. We recognized that it
could not be classified as obscene because it was not designed to appeal to prurient interest. Id.
at 573, 701 A.2d at 1053-54. Nor could it be considered “fighting words,” as it did not “inflict
injury or tend to incite an immediate breach of the peace.” Id. at 573, 701 A.2d at 1053
(quotation omitted).
¶ 31. Finally, in State v. Allcock, 2004 VT 52, 177 Vt. 467, 857 A.2d 287 (mem.), a
bare majority of this Court affirmed a conviction for disorderly conduct by abusive language on
the following record. Upon entering a food shelf, the defendant asked if she could be served by
someone other than a particular employee, explaining that she believed that the employee had
“crabs” and was sleeping with the defendant’s former husband. Id. ¶ 2. The defendant then said
that she did not want that employee “to do her fucking food shelf.” Id. Upon seeing the
employee herself, the defendant called the employee “a bitch”; told her “go fuck yourself”; and
made comments about the employee “g[iving] her husband crabs.” Id. ¶ 3. The defendant
picked up books off the bookshelf and threw them across a room “while continuously yelling
‘fuck you’ at [the manager] and calling her a ‘bitch.’ ” Id. The defendant also picked up a box
of bread and threw it into another room, while telling the manager “stick it up [your] ass” and
“fuck [your]self.” Id. Other people on the premises reacted to the incident by leaving the
building. Id. The employee who was the target of the invective recounted that she did not feel
threatened, but was embarrassed by being accused of transmitting a sexually transmitted disease.
Id. ¶ 4.
17
¶ 32. The majority upheld the conviction. Id. ¶¶ 6-8. The Court reiterated that the
nature of the words spoken, considered in light of the surrounding circumstances, and not the
subjective response of the actual addressee, guides the analysis of whether the words are
“fighting words” beyond the protection of the First Amendment. Id. ¶ 8 (citing Gilles v. State,
531 N.E.2d 220, 222 (Ind. Ct. App. 1988) (words are “fighting” when, “under an objective
standard, the words were stated as a personal insult to the hearer in language inherently likely to
provoke a violent reaction”) and Johnson v. Palange, 406 A.2d 360, 365 (R.I. 1979) (“Fighting
words are those which, under “objective test . . . would cause an average person to fight”)); see
also Read, 165 Vt. at 158, 680 A.2d at 954 (Morse, J., dissenting) (“[T]he [fighting-words]
doctrine is limited to words likely to immediately provoke the individual listener to whom they
are directed to start a fight. An objective standard is required to determine that issue.”).
Applying this standard, the majority concluded that the statements in question satisfied this test,
emphasizing that the defendant had “directed extremely vulgar and personally offensive insults”
at an employee and “hurled several items around the room in a fit of anger.” 2004 VT 52, ¶ 8.
¶ 33. The dissent took the majority to task for, among other things, relying in part on
the defendant’s conduct in hurling objects to uphold the conviction, when the statute that was
applied targets the use of language and the majority did not draw any connection between the
defendant’s hurling of objects and the likelihood that her conduct would incite a violent reaction.
Id. ¶ 14 (Dooley, J., dissenting).
¶ 34. This Court’s most recent engagement with the disorderly-conduct provision
criminalizing abusive statements came in State v. Sanville, 2011 VT 34, 189 Vt. 626, 22 A.3d
450 (mem.). There, we considered the revocation of a defendant’s probation following quarrels
with his landlord. The defendant at one point suggested that he was going to burn his rental
trailer down, and, on at least one occasion, said that he was going to “kick [landlord and her
husband’s] butts.” Id. ¶¶ 2-3. The trial court found that the defendant had violated a probation
18
condition prohibiting “[v]iolent or threatening behavior,” and we reversed. Id. ¶ 1. Considering
whether the disorderly-conduct statute could have applied to the defendant’s conduct, we
specifically rejected the State’s claim that the defendant’s acts could have given rise to a charge
of disorderly conduct for abusive or obscene language under 13 V.S.A. § 1026(a)(3), concluding
that the defendant’s “mouthing off” and “bluster”—however “obnoxious,” “disrespectful,” and
“angry”—were not “sufficient behavior to violate . . . that statute.” Id. ¶¶ 11-12.
C.
¶ 35. With the above history in mind, we note several important considerations that
inform our analysis of § 1026(a)(3), as construed by this Court. First, this provision is not
directed at violent, tumultuous, or threatening conduct. A separate prong of the disorderly-
conduct statute expressly targets these categories of behavior. See 13 V.S.A. § 1026(a)(1)
(prohibiting disorderly conduct by engaging in “violent, tumultuous, or threatening behavior”).
Moreover, this Court has construed § 1026(a)(3) as reaching only “fighting words,” a category of
speech that is not synonymous with threats or tumult. Like “fighting words,” statements that are
“true threats” enjoy minimal First Amendment protection. “True threats” are “those statements
where the speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359.
Such statements may be prohibited to “protect[] individuals from the fear of violence” and “from
the disruption that fear engenders,” in addition to protecting people “from the possibility that the
threatened violence will occur.” Id. at 360 (quotation omitted). See also State v. Miles, 2011 VT
6, ¶ 8, 189 Vt. 564, 15 A.3d 596 (mem.) (“[I]n determining whether statements are true threats of
physical violence unprotected by First Amendment, courts must examine speech in light of entire
factual context and consider several factors, including whether [an] objectively reasonable
person would view [the] message as [a] serious expression of intent to harm”) (citing Doe v.
Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 622-24 (8th Cir. 2002) (en banc)). By contrast,
19
as noted above, “fighting words” need not convey an intent to do harm, or instill fear in the
listener; instead, they are words that are likely to so provoke the average listener that an affray
will ensue. A given tirade may include both threats and fighting words, but a prosecution under
§ 1026(a)(3) cannot rest on the threatening character of a defendant’s words or behavior. Rather,
the words must meet the incitement requirement described above.19
¶ 36. Second, insofar as the reach of § 1026(a)(3) is constrained by the contours of the
category of “fighting words,” first expressly described by the U.S. Supreme Court in 1942, that
category must be understood in light of that Court’s evolving case law concerning the
Constitution’s commitment to protecting even vile, offensive, hurtful, and exceptionally insulting
speech. See, e.g., Snyder, 562 U.S. at 455-60 (statements such as “Thank God for Dead
Soldiers” on signs held by picketers at funeral of fallen soldier are protected speech under First
Amendment); Johnson, 491 U.S. at 409 (burning of American flag could not be reasonably
construed as “a direct personal insult or an invitation to exchange fisticuffs”); Terminiello, 337
U.S. at 4 (“[F]reedom of speech, though not absolute, is nevertheless protected against
censorship or punishment, unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience, annoyance, or unrest” (citation
omitted)).
¶ 37. Third, in this day and age, the notion that any set of words are so provocative that
they can reasonably be expected to lead an average listener to immediately respond with physical
violence is highly problematic. See Read, 165 Vt. at 156, 680 A.2d at 955 (Morse, J.,
dissenting). In a society in which children are admonished to “use your words” rather than
respond to anger and frustration by physically lashing out—and are taught the refrain, “Sticks
19
In this case, the trial court concluded that the evidence could support a charge of
disorderly conduct under the “threatening behavior” prong of the statute, but could not support a
conviction. Accordingly, the threatening character of defendant’s words and actions in this case
is not before us. The question before us focuses solely on the tendency of defendant’s words to
incite a violent reaction from an average person in the coach’s position.
20
and stones will break my bones, but words will never hurt me,” as an appropriate response to
taunts—the class of insults for which violence is a reasonably expected response, if it exists at
all, is necessarily exceedingly narrow. But see Gilles, 531 N.E.2d at 222-23 (holding that
preacher’s reference to crowd of festivalgoers, including four specific individuals within that
crowd, as “ ‘fuckers,’ ‘whores,’ ‘queers,’ and ‘AIDS people,’ ” and statement that people were
condemned to hell, were “inherently likely to provoke a violent reaction” because he used “terms
generally considered some of the most offensive in our culture . . . [to] place[] his listeners in
categories defined by sexual activity, sexual orientation, and sexually transmitted disease”).
¶ 38. For these reasons, if § 1026(a)(3) has any continuing force, it is necessarily
exceedingly narrow in scope. The use of foul language and vulgar insults is insufficient. A
likelihood of arousing animosity or inflaming anger is insufficient. The likelihood that the
listener will feel an impulse to respond angrily or even forcefully is insufficient. The provision
only reaches speech that, in the context in which it is uttered, is so inflammatory that it is akin to
dropping a match into a pool of gasoline.
III.
¶ 39. With these considerations in mind, even assuming that § 1026(a)(3) as narrowed
by this Court is constitutional, this is not a close case. Defendant’s expression was vulgar,
boorish, and just plain rude. His conduct could arguably have been viewed as threatening,
although, as noted above, that question is not before us. But his expression cannot be said to fall
in the exceedingly narrow category of statements that are reasonably expected to cause the
average listener to respond with violence. Defendant in this case asked emphatically, and
angrily, why the coach had not played his daughter in the basketball game. He called her a
“bitch” and laced his invective with a vulgar four-letter word. But he did not lob heinous
accusations against the coach, or taunt her to fight him. In fact, he uttered some of the offending
statements as he walked away—rendering them especially unlikely to incite an immediate
21
violent response. See In re Welfare of S.L.J., 263 N.W.2d 412, 419-20 (Minn. 1978) (suspect’s
yell of “fuck you pigs” at police officers while walking away after being released by officers was
not fighting words); Hershfield v. Commonwealth, 417 S.E.2d 876, 876-78 (Va. Ct. App. 1992)
(vulgar comment and hand gesture made by one neighbor in front yard to neighbor two houses
down was not fighting words where neighbors were separated by a fence, even though neighbor
could see and hear each other). We cannot conclude on this record that an average person in the
coach’s position would reasonably be expected to respond to defendant’s harangue with
violence. For that reason, defendant’s conviction of disorderly conduct by abusive language
cannot stand.
¶ 40. Because we conclude that, in light of evolving First Amendment case law,
defendant’s conviction cannot stand even under the general framework described in Read, we do
not address defendant’s call for us to overrule Read and strike down § 1026(a)(3) as
unconstitutional. We note, however, that for the reasons set forth above, the reach of that
subsection at this point is so narrow that it is unlikely to apply in any but the most extreme
circumstances.
Reversed.
FOR THE COURT:
Associate Justice
22