State v. Tracy, 14–055.

Citation130 A.3d 196
Decision Date28 August 2015
Docket NumberNo. 14–055.,14–055.
Parties STATE of Vermont v. David TRACY.
CourtUnited States State Supreme Court of Vermont

William H. Sorrell, Attorney General, and Sarah Katz, Assistant Attorney General, Montpelier, for PlaintiffAppellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Lauren Migliaccio, Law Clerk (on the Brief), Montpelier, for DefendantAppellant.



¶ 1. 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.


¶ 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 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 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.


¶ 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, 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 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.


¶ 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.

¶ 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, 150 n. 10, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (quotations omitted); see...

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17 cases
  • State v. Liebenguth
    • United States
    • Supreme Court of Connecticut
    • August 27, 2020
    ...racketeer or fascist, deemed fighting words in Chaplinsky , "would be unlikely to even raise an eyebrow today"); State v. Tracy , 200 Vt. 216, 237, 130 A.3d 196 (2015) ("in this day and age, the notion that any set of words are so provocative that they can reasonably be expected to lead an ......
  • State v. Blanchard
    • United States
    • United States State Supreme Court of Vermont
    • March 5, 2021
    ...activity); State v. Noll, 2018 VT 106, ¶¶ 28-29, 208 Vt. 474, 199 A.3d 1054 (same); cf. State v. Tracy, 2015 VT 111, ¶ 15, 200 Vt. 216, 130 A.3d 196 (analyzing "disorderly conduct by ‘abusive ... language’ " statute against "backdrop" of First Amendment case law from U.S. Supreme Court); St......
  • People ex rel. R.C.
    • United States
    • Court of Appeals of Colorado
    • November 17, 2016
    ...reasonably be expected to lead an average [person] to immediately respond with physical violence is highly problematic." State v. Tracy , 130 A.3d 196, 209 (Vt. 2015). The cases cited at the outset of the dissenting opinion make this very point: words alone, no matter how offensive or cruel......
  • State v. Schenk
    • United States
    • United States State Supreme Court of Vermont
    • May 4, 2018
    ...More recently, in State v. Tracy, we questioned the continued vitality of the fighting words exception. 2015 VT 111, ¶¶ 16-17, 200 Vt. 216, 130 A.3d 196. Thus, we further narrowed the reach of § 1026(a)(3):For these reasons, if § 1026(a)(3) has any continuing force, it is necessarily exceed......
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1 books & journal articles
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 No. 1, January 2022
    • January 1, 2022
    ...959, 965 (9th Cir. 2008). (276.) See supra Part B.5. (277.) Bey v. Rasawehr, 161 N.E.3d 529, 545-46 (Ohio 2020). (278.) State v. Tracy, 130 A.3d 196, 201 (Vt. 2015). The D.C. Court of Appeals has likewise vacated a speech-restrictive injunction on the grounds that "a communication does not ......

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