State v. Baccala

Decision Date11 July 2017
Docket NumberSC 19717
Citation163 A.3d 1,326 Conn. 232
CourtConnecticut Supreme Court
Parties STATE of Connecticut v. Nina C. BACCALA

Damian K. Gunningsmith, with whom were John L. Cordani, Jr., and, on the brief, Martin B. Margulies, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Andrew R. Durham, assistant state's attorney, for the appellee (state).

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and D'Auria, Js.*

McDONALD, J.

The defendant, Nina C. Baccala, was convicted of breach of the peace in the second degree in violation of General Statutes § 53a–181(a)(5)1 solely on the basis of the words that she used to denigrate the manager of a supermarket in the course of a customer service dispute. Fundamentally, we are called upon to determine whether the defendant's speech is protected under the first amendment to the United States constitution or, rather, constitutes criminal conduct that a civilized and orderly society may punish through incarceration. The distinction has profound consequences in our constitutional republic. "If there is a bedrock principle underlying the [f]irst [a]mendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Texas v. Johnson , 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).

Only certain types of narrowly defined speech are not afforded the full protections of the first amendment, including "fighting words," i.e., those words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." (Internal quotation marks omitted.) Chaplinsky v. New Hampshire , 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). The broad language of Connecticut's breach of the peace statute; see footnote 1 of this opinion; has been limited accordingly. See State v. Indrisano , 228 Conn. 795, 812, 640 A.2d 986 (1994). Because the words spoken by the defendant were not likely to provoke a violent response under the circumstances in which they were uttered, they cannot be proscribed consistent with the first amendment. Accordingly, we reverse the judgment of the trial court.2

The jury reasonably could have found the following facts. On the evening of September 30, 2013, the defendant telephoned the Stop & Shop supermarket in Vernon to announce that she was coming to pick up a Western Union money transfer so they would not close the customer service desk before she arrived. The defendant spoke with Tara Freeman, an experienced assistant store manager who was in charge of the daily operations at the supermarket, which spanned approximately 65,000 square feet. Freeman informed the defendant that the customer service desk already had closed and that she was unable to access the computer that processed Western Union transactions. The defendant became belligerent, responded that she "really didn't give a shit," and called Freeman "[p]retty much every swear word you can think of" before the call was terminated.

Despite Freeman's statements to the contrary, the defendant believed that as long as she arrived at the supermarket before 10 p.m., she should be able to obtain the money transfer before the customer service desk closed. Accordingly, a few minutes after she telephoned, the defendant arrived at the supermarket, which was occupied by customers and employees. The defendant proceeded toward the customer service desk located in proximity to the registers for grocery check-out and began filling out a money transfer form, even though the lights at the desk were off. Freeman approached the defendant, a forty year old woman who used a cane due to a medical condition that caused severe swelling in her lower extremities, and asked her if she was the person who had called a few minutes earlier. Although the defendant denied that she had called, Freeman recognized her voice. After Freeman informed the defendant, as she had during the telephone call, that the customer service desk was closed, the defendant became angry and asked to speak with a manager. Freeman replied that she was the manager and pointed to her name tag and a photograph on the wall to confirm her status. Some employees, including the head of the cashier department, Sarah Luce, were standing nearby as this exchange took place.

The defendant proceeded to loudly call Freeman a "fat ugly bitch" and a "cunt,"3 and said "fuck you, you're not a manager," all while gesticulating with her cane.

Despite the defendant's crude and angry expressions directed at her, Freeman remained professional. She simply responded, "[h]ave a good night," which prompted the defendant to leave the supermarket.

Thereafter, the defendant was arrested and charged with breach of the peace in the second degree.4 Following a jury trial, the defendant was convicted of that charge and sentenced to twenty-five days incarceration. The defendant appealed, and we transferred the appeal to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–2.

On appeal, the defendant claims that the evidence was insufficient to support her conviction of breach of the peace in the second degree because the words she uttered to Freeman did not constitute fighting words. Although the defendant asserts that her speech is protected under the first amendment to the federal constitution, her principal argument is that we should construe article first, §§ 4 and 5, of the Connecticut constitution to provide greater free speech protection than the first amendment so as to limit the fighting words exception to express invitations to fight. We conclude that it is unnecessary to decide whether the state constitution would afford greater protection because the evidence was plainly insufficient to support the defendant's conviction under settled federal constitutional jurisprudence.5

This court has not considered the scope and application of the fighting words exception for more than two decades. See State v. Szymkiewicz , 237 Conn. 613, 678 A.2d 473 (1996). Accordingly, it is appropriate for us to consider the exception's roots and its scope in light of more recent jurisprudential and societal developments.

The fighting words exception was first articulated in the seminal case of Chaplinsky v. New Hampshire , supra, 315 U.S. at 568, 62 S.Ct. 766. After noting that the right of free speech is not absolute, the United States Supreme Court broadly observed: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment 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., at 571–72, 62 S.Ct. 766.

Unlike George Carlin's classic 1972 comedic monologue, "Seven Words You Can Never Say on Television,"6 it is well settled that there are no per se fighting words. See Downs v. State , 278 Md. 610, 615, 366 A.2d 41 (1976). Although certain language in Chaplinsky seemed to suggest that some words in and of themselves might be inherently likely to provoke the average person to violent retaliation, such as "God damned racketeer" and "damned Fascist"; (internal quotation marks omitted) Chaplinsky v. New Hampshire , supra, 315 U.S. at 569, 574, 62 S.Ct. 766 ; subsequent case law eschewed the broad implications of such a per se approach. See People v. Stephen , 153 Misc.2d 382, 387, 581 N.Y.S.2d 981 (1992) ("[w]hile the original Chaplinsky formulation of ‘fighting words' may have given some impression of establishing a category of words which could be proscribed regardless of the context in which they were used, developing [f]irst [a]mendment doctrine in the half century since Chaplinsky was decided has continually resorted to analyzing provocative expression contextually"); see also Texas v. Johnson , supra, 491 U.S. at 409, 109 S.Ct. 2533 ; Gooding v. Wilson , 405 U.S. 518, 525, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) ; Cohen v. California , 403 U.S. 15, 20, 23, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) ; L. Tribe, American Constitutional Law (2d Ed. 1988) § 12–10, pp. 850–51. Rather, "words may or may not be ‘fighting words,’ depending upon the circumstances of their utterance."

Lewis v. New Orleans , 415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (Powell, J., concurring); see R.A.V. v. St. Paul , 505 U.S. 377, 432, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (Stevens, J., concurring) ("[w]hether words are fighting words is determined in part by their context"); Hammond v. Adkisson , 536 F.2d 237, 239 (8th Cir. 1976) (first amendment requires "determination that the words were used ‘under such circumstances' that they were likely to arouse to immediate and violent anger the person to whom the words were addressed" [emphasis omitted] ); State v. Szymkiewicz , supra, 237 Conn. at 620, 678 A.2d 473 (considering both "the words used by the defendant" and "the circumstances in which they were used"); State v. Hoskins , 35 Conn.Supp. 587, 591, 401 A.2d 619 (1978) ("The ‘fighting words' concept has two aspects. One involves the quality of the words themselves. The other concerns the circumstances under which the words are used.").

This context based view is a logical reflection of the way the meaning and impact of words change over time. See R.I.T. v. State , 675 So.2d 97, 99 (Ala. Crim. App. 1995) ; People v. Stephen , supra, 153 Misc.2d at 387, 581 N.Y.S.2d 981 ; State v. Harrington , 67 Or.App. 608, 613 n.5, 680 P.2d 666, cert. denied, 297 Or. 547, 685 P.2d 998 (1984) ; see also Towne v. Eisner , 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918) ("[a] word is not a crystal, transparent and unchanged, it is the skin of a living...

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