State v. Baccala

Summary

This is a concurring and dissenting opinion in State v. Baccala concerning whether profane and abusive language directed at a store manager constituted unprotected fighting words under the First Amendment and the Connecticut Constitution. The opinion argues that State v. Szymkiewicz controlled the federal constitutional analysis, that the defendant inadequately briefed her federal claim, and that the state constitution did not provide broader protection. The author would nevertheless reverse and remand for a new trial because the jury charge was insufficient on imminence.

Holdings

1. The Connecticut Constitution does not require that abusive speech directly challenge the listener to fight before it may be treated as fighting words. The proper standard is whether the speech is so abusive that it would provoke an ordinary person, as the recipient, to respond with immediate violence.
2. The evidence was sufficient, under the ordinary-person fighting-words standard, to sustain the conviction because the defendant used belligerent, personally directed, and extremely abusive language while gesticulating with her cane.
3. The jury instruction was constitutionally inadequate because it broadened the fighting-words standard beyond speech likely to provoke an ordinary person, as the recipient, to respond with immediate violence.
4. A possible implied waiver under State v. Kitchens does not preclude plain-error review of an unpreserved instructional claim.

Questions Presented

1. Whether the defendant's abusive language constituted unprotected fighting words under the First Amendment and the Connecticut Constitution.
2. Whether the Connecticut Constitution affords greater protection than the First Amendment for fighting words by requiring a direct challenge to fight.
3. Whether the evidence was sufficient to sustain the breach-of-peace conviction under the proper fighting-words standard.
4. Whether the jury instruction improperly broadened the fighting-words standard by referring to speech that could provoke retaliation, other wrongful conduct, or speech that merely portended violence.
5. Whether an unpreserved instructional claim could be reviewed under the plain-error doctrine despite a possible implied waiver under State v. Kitchens.

Disposition

reversed_and_remanded