Free Speech

Fighting Words in the Connecticut Supreme Court

Three interesting opinions: a sound majority, a plausible concurrence, and another concurrence focused on "hate speech" that I think is unsound.

|The Volokh Conspiracy |

The Connecticut Supreme Court has had some interesting debates in past years about the First Amendment "fighting words" exception (e.g., State v. Baccala (Conn. 2017)and State v. Parnoff (Conn. 2018)). Today's State v. Liebenguth unsurprisingly holds that saying "fucking niggers" to a black person—apparently referring to that person—is punishable fighting words, even when the words don't lead to a fight, and when they are said to a government enforcement official (but perhaps not when they are said to a police officer).

Michael McCargo, a New Canaan parking enforcement officer, had put a $15 ticket to David Liebenguth; Liebenguth then came up to McCargo (perhaps in part because McCargo's vehicle was still blocking Liebenguth's car).

"… McCargo testified that the defendant's demeanor then 'escalated,' with the defendant [having said] that the parking authority was '[fucking] [un]believable' and [having told] McCargo that he had given him a parking ticket 'because my car is white…. [N]o, [you gave] me a ticket because I'm white.' As the defendant, who is white, spoke with McCargo, who is African-American, he 'flared' his hands and added special emphasis to the profanity he uttered. Even so, according to McCargo, the defendant always remained a 'respectable' distance from him. Finally, as the defendant was walking away from McCargo toward his own vehicle, he spoke the words, 'remember Ferguson.'"

McCargo also testified that, "[a]fter both men had returned to and reentered their vehicles, McCargo, whose window was rolled down … thought he heard the defendant say the words, 'fucking niggers' [twice]. This caused him to believe that the defendant's prior comment about Ferguson had been made in reference to the then recent [and highly publicized] shooting of an African-American man by a white police officer in Ferguson, Missouri [on August 9, 2014, approximately three weeks earlier]. [McCargo] thus believed that the [defendant's reference to Ferguson was a 'threat'] meant to imply that what had happened in Ferguson 'was going to happen' to him."

The court concluded that this was indeed fighting words—face-to-face insults that had a tendency to lead to a fight. The strongest argument for defendant, I think, relied on the Baccala precedent; here is what the court said in response:

[T]he relevant facts of Baccala … are as follows. "On the evening of September 30, 2013, the defendant [Nina C. Baccala] 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…. [Baccala] spoke with Tara Freeman, an experienced assistant store manager … [who] informed [Baccala] that the customer service desk already had closed… [Baccala] became belligerent, responded that she 'really didn't give a shit,' and called Freeman '[p]retty much every swear word you can think of' before the call was terminated….

"… [A] few minutes after she telephoned, [Baccala] arrived at the supermarket, which was occupied by customers and employees…. [After some further disagreement,] '[Baccala] proceeded to loudly call Freeman a 'fat ugly bitch' and a 'cunt,' and said 'fuck you, you're not a manager,' all while gesticulating with her cane…. Freeman remained professional. She simply responded, '[h]ave a good night,' which prompted [Baccala] to leave the supermarket.' …"

We began our analysis of Baccala's claim with the observation that the language she used was both extremely offensive and intentionally demeaning.  We nevertheless concluded that her utterances did not rise to the level of fighting words because, under the circumstances, they were not likely to trigger an immediate violent response by the average person in Freeman's position.  In reaching this conclusion, we relied primarily on four considerations relative to the circumstances of the encounter.

First, the verbal assault that Baccala launched against Freeman on the telephone placed Freeman on notice of the possibility that Baccala would resort to similar language when she arrived at the supermarket a few minutes later.  Second, as a person in an "authoritative [position] of management and control," Freeman would be expected to diffuse such a hostile situation by "model[ing] appropriate, responsive behavior, aimed at de-escalating the situation," both for the sake of other customers and store personnel alike.  Third, as a store manager, Freeman had a measure of control over the premises insofar as she could demand that Baccala leave if she became abusive, threaten to have Baccala arrested for trespassing if she didn't leave, and follow through on that threat if necessary.  Fourth, there was no reason to think that Freeman's professional and restrained response to Baccala's offensive harangue was atypical of the manner in which an average person in Freeman's position would have responded to the same provocation under the same circumstances.

In the present case, the first three of the foregoing factors support the conclusion that the defendant's utterances were, in fact, fighting words. In contrast to the notice Freeman had received with respect to the likelihood of an angry and offensive, face-to-face outburst by Baccala, McCargo had no forewarning of the verbal abuse that the defendant inflicted on him. Unlike Freeman, McCargo was not acting in a supervisory capacity with respect to the safety and well-being of others. Nor did he have any degree of control over the area in which his encounter with the defendant took place.

Only the fourth factor we considered in Baccala—the fact that Freeman did not resort to violence in responding to the verbal provocation she confronted—militates against a finding that the average person in the same situation as McCargo, who also refrained from any physical retaliation, likely would have had an immediate violent response to the defendant's verbal attack. In Baccala, however, our conclusion that the response of the average supermarket manager in Freeman's situation probably would be no different from Freeman's necessarily was predicated on the existence of the first three factors discussed—none of which is present here. Moreover, in Baccala, we expressly acknowledged that we might have reached a different conclusion if Baccala had directed the same language at Freeman after Freeman had completed work and left the supermarket.  Notably, that situation—in which Freeman would not have been acting in a managerial or supervisory capacity, had no real control over the relevant premises, and was more or less alone with Baccala—is much more like the circumstances McCargo found himself in when he was accosted by the defendant.

Finally, we agree with the observation that "[r]acial insults, relying as they do on the unalterable fact of the victim's race and on the history of slavery and race discrimination in this country, have an even greater potential for harm than other insults." R. Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," 17 Harv. C.R.-C.L. L. Rev. 133, 143 (1982); see id., 135–36 (explaining that such insult "injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status, and personhood"); see also Matusick v. Erie County Water Authority, 757 F.3d 31, 38 n.3 (2d Cir. 2014) (observing that word "nigger" has "unique … power to offend, insult, and belittle"); Toussaint v. Brigham & Women's Hospital, Inc., 166 F. Supp. 3d 110, 116 n.4 (D. Mass. 2015) ("[t]he word 'nigger' has unique meaning that makes its use particularly egregious"). In light of the uniquely injurious and provocative nature of the term, we also agree that its use is all the more likely to engender the kind of violent reaction that distinguishes fighting words from the vast majority of words that, though also offensive and provocative, are nevertheless constitutionally protected.

And I think this makes sense: In determining whether a word is "fighting words," courts have to consider whether the word is indeed likely to start a fight when used as a face-to-face insult—and the past of the word, as it affects present reactions to it, is surely relevant to that evaluation. I don't think the court was trying to distinguish Baccala on this score; even taking into account the statistical reality that women are in general less likely than men to act violently, I think calling a woman a "cunt" may well lead to violence, and the court stressed that "in Baccala, we expressly acknowledged that we might have reached a different conclusion if Baccala had directed the same language at Freeman after Freeman had completed work and left the supermarket."

The court also rejected the argument that words said to McCargo, as a public official, can't be fighting words:

[T]he defendant argues that "a public official [such as McCargo] is expected to exercise a greater degree of self-restraint in the face of provocation than is a civilian." To support this assertion, however, the defendant cites to cases involving offensive language directed at police officers … [e.g.,] "[t]hat's fucked up, those pigs can't do that[.]" [The court in that case] went on to explain that, "[a]long with good judgment, intelligence, alertness, and courage, the job of police officers requires a thick skin. Theirs is not a job for people whose feelings are easily hurt."

Although we agree that police officers generally are expected to exercise greater restraint than the average citizen when confronted with offensive language or unruly conduct, McCargo was not a police officer, and his duties cannot fairly be characterized as similar to those of a police officer. Additionally, McCargo's testimony concerning his five years of experience as a parking enforcement officer—testimony in which he explained that he never before had been on the receiving end of such hostile or offensive language or had ever reported a prior incident to the police—suggests that the abuse McCargo endured during his encounter with the defendant well exceeded that which someone in his position reasonably might be expected to face. Consequently, although we do agree with the Appellate Court that McCargo, like any parking enforcement official, undoubtedly was aware that some members of the public might well express frustration and even anger upon receiving a ticket, we disagree that the average African-American parking official would have been prepared for and responded peaceably to the kind of racial slurs, threatening innuendo, and aggressive behavior with which McCargo was confronted.

Justice Maria Araujo Kahn joined the majority, but also wrote separately to say that (1) she thinks the fighting words exception should be rejected, but (2) given its existence, these words qualify. Here's part of her criticism of the exception:

The ultimate inquiry of the fighting words exception is whether a speaker's words would reasonably result in a violent reaction by its intended recipient. Considering the stereotypes associated with immutable characteristics of the addressee, however, produces discriminatory results "because its application depends on assumptions about how likely a listener is to respond violently to speech." W. Reilly, "Fighting the Fighting Words Standard: A Call for Its Destruction," 52 Rutgers L. Rev. 947, 948 (2000). This approach essentially requires courts to promulgate stereotypes on the basis of race, gender, age, disability, ethnicity, and sexual orientation, among others, and has led to much of the scholarly criticism of the fighting words exception.

I will refrain from enumerating a laundry list of a stereotypes related to violent responses from which flow myriad discriminatory results, but I illustrate one example of a common refrain in society and courts: women are less likely than men to react to offensive situations with physical violence. Allowing such a stereotype into the analysis of whether a reasonable person in the addressee's circumstances is likely to respond to words with violence creates a situation in which "almost nothing one could say to a woman would be proscribed by the fighting words doctrine …."

The overarching result is that groups of people that, for example, are stereotyped as docile due to their gender or ethnicity, or who have physical limitations due to their age or disability that prevent them from responding violently—the precise groups that face persistent discrimination—must endure a higher level of offensive speech before being afforded legal remedies that comport with our constitution. From the speaker's perspective, such a result allows him or her to more readily and viciously verbally assault certain oppressed groups without fear of criminal prosecution….

Justice Steven D. Ecker also joined, but suggested that (1) the fighting words exception should generally be rejected, but (2) perhaps should be replaced by an exception focused on

speech communicated publicly to an addressee, in a face-to-face encounter, using words or images that demean the addressee on the basis of his or her race, color, national origin, ethnicity, religion, gender, sexual orientation, disability, or like trait, and under circumstances indicating that the speaker intends thereby to cause the addressee severe psychic pain.

I think any such proposed exception would violate the principle of R.A.V. v. City of St. Paul; that case held that the government may not target bigoted fighting words for special punishment (though it may punish fighting words generally)—it's hard to see how that's consistent with a rule saying that the government must target only bigoted fighting words, if it wants to punish any such words. But perhaps Justice Ecker's tentative proposal is implicitly calling for reversing R.A.V. on this score; and in any event, it is only one Justice's opinion, not joined by another member of the court. (My personal view is that the shift Justice Ecker describes would improperly target certain words for punishment precisely because of the bigoted viewpoint they express, even when that's a means for narrowing the existing fighting words exception.)

Incidentally, for those interested in the debate about whether it's improper even to mention "nigger" (and perhaps other epithets) in discussion of the facts of cases, note that the three opinions in this case mentioned the word an aggregate of 52 times—even while condemning the defendant for using the word as an insult—and the Justices also said the word 6 times in oral argument. I agree with the Justices on this score; I think that when judges (or law professors or students or others) are discussing the facts of a case, they ought to discuss them candidly, and without expurgation.

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  1. Hate speech is free speech, SCOTUS settle that a long time ago … we the people hold the freedom to hate!!!

  2. Once a court quotes “words that wound”, I say bullshite.

    People writing tickets are police officers — and this is bullshite.

    1. And I’d argue “remember Ferguson was a warning to authority figures as to mass protest, i.e. the White cOp who no longer is a COP.

    2. Yeah, the assertion that a “parking enforcement officer” is not a cop was the weakest part of that decision.

      Grow a thicker skin or find another line of work. Don’t expect people to like you when you’re the government’s bully.

  3. THE VOLOKH CONSPIRACY

    This blog has operated for
    0 (ZERO) DAYS
    without using a vile racial slur
    and for
    489 DAYS
    without engaging in
    viewpoint-driven censorship.

    1. Commentor RAK has gone
      0 (ZERO) DAYS
      without copy-pasting an irrelevant, off-topic and (worst) boring rant.

  4. Words only have the value we give them. Why is nigger acceptable amongst negroes but forbidden to whites? When I have been called a Spic I frankly get a little confused. My family comes from the Galician-Basque part of NW Spain. What is a spic anyway? Beats me. I do however know that I am a first generation American and God help anyone who tries to besmirch, cheapen or belittle that.

    1. ‘spic is American slang for HISPANIC, which comes from HISPANOLA, read up on the history of the Spanish Empire, the part that is now owned by USA.

      1. Not to go down a wormhole, but this is completely wrong.

        “Spic” is a slur derived from the way Puerto Rican immigrants pronounced the word “speak” when speaking English.

  5. Arthur Kirkland’s comment seems to be pretty telling: His view appears to be that there’s something wrong in a legal news and opinion source even quoting, in writing, passages from a court decision that includes the word “nigger.” (There are over 10,000 such court decisions, just focusing on Westlaw-available material.) Somehow, in his mind (and in others’), there is an obligation for people writing about law to expurgate material that judges believe is properly included in their opinions, and that lawyers believe is properly included in their briefs.

    Is such expurgation — and telling students that they are entitled to such expurgation — really the best way to educate future lawyers? Or for that matter to enlighten readers of a law blog? The answer, in my view, is pretty clearly no; but obviously there are some people who are trying to demand precisely this sort of expurgation.

    So long as any word appears in court documents (opinions, briefs, indictments, transcripts) and I’m writing a post about the relevant portion of those court documents, you will see that word in this blog, whether it’s a “vile racial slur” or anything else. (One of the reasons we left the Washington Post was precisely my insistence on “the right to accurately and completely quote material from cases and controversies, including when the material contains vulgar words”; the Post’s immediate insistence, which we couldn’t go along with, was on our expurgating vulgarities, but the principle I describe applies equally to slurs.)

    1. Professor, I think poor Artie is more butt-hurt about being ‘censored’.

      All your other points are right. It was said to me this way: We must see things as they actually are, rather than what we wish them to be.

    2. The rationale for the prohibition of certain language was supplied by Herbert Marcuse. In societies where “the economic and political process is subjected to a ubiquitous and effective administration in accordance with the predominant interests,” individuals have been systematically divested of their capacity to think as rational, autonomous individuals.

      “The efforts to counteract this dehumanization,” Marcuse explained, “must begin at the place of entrance, there where the false consciousness takes form (or rather: is systematically formed—it must begin with stopping the words and images which feed this consciousness).” To be liberated, individuals “would have to get information slanted in the opposite direction.” The withdrawal of tolerance would have to be aimed at ideas, groups, and movements “which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, medical care, etc.”

      Hence, there can be no toleration of thoughts or words that impede the effort to counteract the “false consciousness.” In other words, no tolerance for speech that interferes with people becoming “woke.” Until then, they have diminished capacity to think rationally.

      It’s interesting to see the Google Books Ngram Viewer graph showing the appearance of the word “nigger” in English books since 1800. There is a curious rise from 1983 to 2019. Switching to other types of English is also interesting.

    3. I have said this before, but I hate the word and would personally do everything I could to avoid saying it. (Although even then there are situations where I could imagine saying it- if I were in F. Lee Bailey’s situation and cross-examining a witness who said it, I would definitely have to say it.)

      But I think it’s a defensible pedagogical and journalistic choice to use the term, especially when talking about fighting words. The shocking experience of reading the word can make one appreciate why it might be “fighting words”.

    4. Tell us something we already don’t know.

      Don’t even bother with him.

  6. The Connecticut Court is part of a long game to create hate speech and criminalize it … part of the destruction of the First Amendment plan, brought to you by those who know more than you and have plans for you … now shut up and get in the boxcar.

    1. They’re serious about the boxcar, too.

  7. One man’s trash talk is another man’s…crime?

    If one person insults another to the point of instigating a physical confrontation, then the person hurling the insults ought not be able to claim the other threw the first punch. Aside from that, the fighting words doctrine ought to be reined in as much as able. Otherwise we are coming very close to criminalizing hate speech.

    Why should it matter the nature of the insult be it based on race, creed, ethnicity… or like trait? What ought to matter is whether the words are meant to incite a fight/disturbance of the peace. What will enrage one person may not elicit even mild anger in another. The good trash talker knows what will upset his target, which may have nothing to do with the immutable traits of the person being set upon verbally.

    The idea that one can say X to a policeman but not to someone else, because the policeman is expected to have more self control, overlooks that the insult was calculated to initiate a physical confrontation. The intent of the person throwing the insult is the same. I will have more faith in the reasonings of the courts when they allow persons to insult judges to their faces. Surely Judges, with their ivy league educations and black robes , should have far thicker skins than mere policemen, Order in the court, but disorder in the streets.

    The justices would have us believe that it is OK to torment a chained dog because the chained dog cannot reach his tormentor, and so there can be no confrontation. But it is not OK to torment the very same dog in very same way after the chain is removed. That is what seemingly passes for deep thought, but common sense tells us that if you torment a dog and get bit, it is your own damned fault.

    1. Your discussion is circular. Of great legal importance is now the script to Blazing Saddles must be re-written as it is criminal speech in Connecticut.

      Hurting the tender feelings of state or municipal employees is not of concern to the First Amendment. It is just a tactic to overturn the First Amendment … the true purpose behind the ruling. Connecticut is a dangerous place, the ruling elite have an agenda not based on the Constitution.

    2. Your dog analogy is strange, like totally off point.

      1. Pavel,
        “Moreover, in Baccala, we expressly acknowledged that we might have reached a different conclusion if Baccala had directed the same language at Freeman after Freeman had completed work and left the supermarket.”

        The store manager is supposedly constrained (by jeopardizing her employment if she responds to insults?) while at her place of employment, but outside of work the same insults might be fighting words.

        So if the store manager while on duty had kicked the crap out of then person hurling insults, the store manager could not claim that the person hurling the insults was the instigator? But if same insults were hurled outside of work the store manager could make that claim?

        1. Mike,
          You need to brush up on your customer service skills in the consumer marketplace. Customer is always right. Customers are the sole source of revenue in a retail environment. Customers are to be cultivated for repeat business to enhance the stability of the revenue stream. New customers are hard to come by and cost money to recruit.

          If a customer is having a bad day, so be it. Upper management held no cause to terminate the ranting lady as a customer or abandon the future revenue stream from her, it would fail the fiduciary obligation of management to the Board and shareholders. The drivel in Baccala is drivel.

          You have to stop and see what the underlying agenda of the Connecticut Judiciary really is about. The objective is to defeat the First, Second, Fourth, Fifth, Sixth Amendments.

  8. So, someone in a Uniform resembling a Police Officer AND performing one of their many daily functions; is now, a private thin-skinned citizen? He admitted that the ‘threat’ was almost inaudible. He also admitted, he was blocking in the mans vehicle. First time he was cussed out in 5 years? LOL

    1. Fucking nigger seems to be used, within the context of the recounted interaction per McCargo, as simply verbal intensifiers. Clearly not literal(no coitus implied). Nor as exclamatory intensifiers, does it rise to a ‘yo mama’.
      Even Trayvon Martin got a pass on ‘creepy-ass cracker’ as having uttered fighting words.
      Maybe defendant could argue that the phrase was factually correct; wouldn’t that be an exception to the fighting words exception?

      1. Gasman,

        Connecticut gestapo have arrested people charging with making ‘threats’ for saying “I am going to fuck you up”. Yep, Gestapo will tell you what you said. The entire state criminal justice system is operating from the office memo designed to shred the First Amendment.

        1. Um, that is a threat. Whether it’s unprotected depends on the context in which it is said, but it is undisputedly a threat.

  9. I mean, yes, introducing a hate exception would violate settled precedent, but so would getting rid of the fighting words exception. The judges are suggesting a change in overarching precedent, it’s kind of silly to criticize their proposal for upsetting precedent when that’s what they want to do.

    On the merits, I think it’s long-time for the fighting words exception to go. It’s basis is just silly – it wouldn’t have been legal for the person to whom the words were spoken to haul back and sock the other guy, so why could it ever be reasonably expected to cause that result? And anyway who cares if it would? If your speech is likely to get you socked, that’s probably enough consequence/disincentive for it in the first place, it doesn’t need government involvement.

    Almost certainly the initial case – just calling a cop a communist, right? – would never fly as fighting words these days anyway.

    1. Would you also advocate to get rid of inciting riot?
      If not, why not?

      1. I’d suggest we get rid of the crime called “inciting riot” and use the freed up resources to enforce the laws against actual rioting.

  10. In this context, where the words were spoken while the men were in their vehicles, were the words truly likely to provoke a violent response? What would that likely response have been?

    The Court supposes that “In such circumstances, it would have been easy enough for McCargo to exit his vehicle and to charge after the defendant, or to ram the defendant’s vehicle with his own, or to pursue the defendant out of the parking lot
    in his own vehicle.” But I don’t think any of those were likely, and the Court doesn’t explain why it was a likely response. And I don’t agree that following someone is violent–possibly harassing, but not violent.

    This was a very important part of Judge Sheldon’s opinion in the CT Appellate Court and I think he was right.

    1. Mario,

      Criminal conviction on something that might have happened, but did not?

      Wow, you are going to be running up the ramp, pushing people out of the way to get in the boxcar.

  11. Isn’t “words would reasonably result in a violent reaction” an oxymoron? We’d still punish any resulting violence, so we don’t consider it a reasonable reaction.

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