Stamford Judicial District Courthouse, Stamford, CT

Case Number: (SC 19717)

Judge: Andrew J. McDonald

Court: Stamford Judicial District Courthouse

Plaintiff's Attorney:

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

Defendant's Attorney:

Damian K. Gunningsmith

John L. Cordani Jr.

Description: Substitute information charging the defendant with two counts of the crime of threatening in the second degree and one count of the crime of breach of the peace in the second degree, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, and tried to the jury before Graham, J.; verdict and judgment of guilty of breach of the peace in the second degree, from which the defendant appealed. Reversed; judgment directed. Damian K. Gunningsmith, with whom were John L. Cordani, Jr., and, onthe 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).
Opinion 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 underthefirstamendmenttotheUnitedStatesconstitution 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 notaffordedthefullprotectionsofthefirstamendment, including ‘‘fighting words,’’ i.e., those words that ‘‘have adirecttendencytocauseactsofviolencebytheperson towhom,individually,theremarkisaddressed.’’(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 operationsatthesupermarket,whichspannedapproximately65,000squarefeet.Freemaninformedthedefendant 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 defendantproceededtowardthecustomerservicedesk located in proximity to the registers for grocery checkout and began filling out a money transfer form, even though the lights at the desk were off. Freeman approachedthedefendant,afortyyearoldwomanwho 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 informedthedefendant,asshehadduringthetelephone 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 ‘‘fatuglybitch’’anda‘‘cunt,’’3 andsaid‘‘fuckyou,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 withbreachof thepeaceinthe seconddegree.4 Following a jury trial, the defendant was convicted of that chargeandsentencedtotwenty-fivedaysincarceration. 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 wordsexceptiontoexpressinvitationstofight.Weconclude 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 toconsidertheexception’srootsanditsscopeinlightof morerecentjurisprudentialandsocietaldevelopments. The fighting words exception was first articulated in the seminal case of Chaplinsky v. New Hampshire, supra, 315 U.S. 568. After noting that the right of free speechisnotabsolute,theUnitedStatesSupremeCourt 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 andobscene,theprofane,thelibelous,andtheinsulting or‘fighting’words—thosewhichbytheirveryutterance inflict injury or tend to incite an immediate breach of the peace.’’ (Footnote omitted.) Id., 571–72. 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 seemedtosuggestthatsomewordsinandofthemselves mightbeinherentlylikelytoprovoketheaverageperson to violent retaliation, such as ‘‘God damned racketeer’’ and ‘‘damned Fascist’’; (internal quotation marks omitted) Chaplinsky v. New Hampshire, supra, 315 U.S. 569, 574; 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]mendmentdoctrineinthehalfcentury since Chaplinsky was decided has continually resorted to analyzing provocative expression contextually’’); see also Texas v. Johnson, supra, 491 U.S. 409; 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, 94S.Ct.970,39L.Ed.2d214(1974)(Powell,J.,concurring);seeR.A.V.v.St.Paul,505U.S.377,432,112S.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’thattheywerelikely toarousetoimmediate and violent anger the person to whom the words wereaddressed’’[emphasisomitted]);Statev.Szymkiewicz, supra, 237 Conn. 620 (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 387; 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, 62L.Ed.372(1918)(‘‘[a]wordisnotacrystal,transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used’’). While calling someone a racketeer or a fascist might naturally have invoked a violent response in the 1940s when Chaplinsky was decided, those same words wouldbeunlikelytoevenraiseaneyebrowtoday.Since that time, public discourse has become more coarse. ‘‘[I]n this day and age, the notion that any set of words aresoprovocativethattheycanreasonablybeexpected toleadanaveragelistenertoimmediatelyrespondwith physical violence is highly problematic.’’ (Emphasis in original.) State v. Tracy, 200 Vt. 216, 237, 130 A.3d 196 (2015); accord People in the Interest of R.C., Docket No.14CA2210,2016WL6803065,*4(Colo.App.November 17, 2016). We need not, however, consider the continued vitality of the fighting words exception in the present case because a contextual examination of the circumstances surrounding the defendant’s remarks inexorably leads to the conclusion that they were not likelytoprovokeaviolentresponseand,therefore,were not criminal in nature or form. A proper contextual analysis requires consideration of the actual circumstances as perceived by a reasonablespeakerandaddresseetodeterminewhetherthere was a likelihood of violent retaliation. See Texas v. Johnson, supra, 491 U.S. 409; Lewis v. New Orleans, supra, 415 U.S. 135 (Powell, J., concurring); Gooding v. Wilson, supra, 405 U.S. 528; Cohen v. California, supra, 403 U.S. 20, 23. This necessarily includes a consideration of a host of factors. Forexample,themannerandcircumstancesinwhich the words were spoken bears on whether they were likely to incite a violent reaction. Even the court in Chaplinsky acknowledged that words which are otherwise profane, obscene, or threatening might not be deemed fighting words if said with a ‘‘ ‘disarming smile.’ ’’Chaplinskyv.NewHampshire,supra,315U.S. 573;seealsoLamarv.Banks,684F.2d714,718–20(11th Cir. 1982) (remanding for evidentiary hearing because there was no factual record as to circumstances in which alleged fighting words were made, noting that ‘‘the tone of voice may have been jocular rather than
hostile, and we do not know . . . what the rest of the conversation was like’’); State v. Harrington, supra, 67 Or. App. 613 n.5 (‘‘Forms of expression vary so much intheircontextsandinflectionsthatonecannotspecify particular words or phrases as being always fighting. What is gross insult in one setting is crude humor in another.’’[Internalquotationmarksomitted.]).Thesituation under which the words are uttered also impacts the likelihood of a violent response. See, e.g., Klen v. Loveland, 661 F.3d 498, 510 (10th Cir. 2011) (considering that words were spoken in context of plaintiffs’ attempts to obtain building permit and that city employee addressees ‘‘did not consider the . . . behavior particularly shocking or memorable, given the rough-and-tumble world of the construction trade’’); People v. Prisinzano, 170 Misc. 2d 525, 531–32, 648 N.Y.S.2d 267 (1996) (considering that words were spoken by union worker to several replacement workers during course of labor dispute); Seattle v. Camby, 104 Wn. 2d 49, 54, 701 P.2d 499 (1985) (en banc) (‘‘Looking at the actual situation presented in this case, we find anintoxicateddefendantbeingescortedoutofarestaurantbyamildmannered,unarouseddoorman-hostwith a police officer present. Given the specific context in which the words were spoken, it was not plainly likely that a breach of the peace would occur.’’). Thus, whetherthewordswereprecededbyahostileexchange oraccompaniedbyaggressivebehaviorwillbearonthe likelihoodofsuchareaction.SeeStatev.Szymkiewicz, supra, 237 Conn. 615–16; Landrum v. Sarratt, 352 S.C. 139, 143, 572 S.E.2d 476 (App. 2002); see also State v. James M., 111 N.M. 473, 476, 806 P.2d 1063 (App. 1990) (noting that fighting words were uttered during course of hostile argument), cert. denied, 111 N.M. 529, 807 P.2d 227 (1991); In re S.J.N-K., 647 N.W.2d 707, 709 (S.D. 2002) (noting that fighting words were uttered in course of speaker’s vehicle tailgating addressee’s vehicle as latter drove away from scene). Aproperexaminationofcontextalsoconsidersthose personal attributes of the speaker and the addressee thatarereasonablyapparentbecausetheyarenecessarily a part of the objective situation in which the speech was made. See In re Nickolas S., 226 Ariz. 182, 188, 245 P.3d 446 (2011); State v. John W., 418 A.2d 1097, 1104 (Me. 1980); Seattle v. Camby, supra, 104 Wn. 2d 54. Courts have, for example, considered the age, gender, race, and status of the speaker. See, e.g., Lewis v. New Orleans, supra, 415 U.S. 135 (Powell, J., concurring) (‘‘[i]t is unlikely . . . that the words said to have been used . . . would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they wereuttered’’); Hammond v.Adkisson,supra,536F.2d 240 (‘‘the trier of fact might well conclude . . . that therewasnolikelihoodthata[nineteenyearold]young woman’swordswouldprovokeaviolentresponsefrom
the particular officer involved’’); In re Nickolas S., supra, 188 (determining there was no likelihood of violent response when student addressed coarse remark to teacher in classroom); In re Spivey, 345 N.C. 404, 414–15, 480 S.E.2d 693 (1997) (holding that racial slur directed at African-American man by white man will cause ‘‘hurt and anger’’ and ‘‘often provoke him to confront the white man and retaliate’’). Indeed, common sense would seem to suggest that social conventions, as well as special legal protections, could temper the likelihood of a violent response when the words are uttered by someone less capable of protecting themselves, such as a child, a frail elderly person, or a seriously disabled person.7 Although the United States Supreme Court has observedthatthespeechmustbeofsuchanaturethatit is ‘‘likely to provoke the average person to retaliation’’; (emphasis added; internal quotation marks omitted) Texas v. Johnson, supra, 491 U.S. 409; when there are objectivelyapparent characteristicsthatwould bearon the likelihood of such a response, many courts have considered the average person with those characteristics. Thus, courts also have taken into account the addressee’s age, gender, and race. See, e.g., Bethel v. Mobile, Docket No. 10-0009-CG-N, 2011 WL 1298130, *7 (S.D. Ala. April 5, 2011) (‘‘[t]here can be little doubt thatrepeatedlycallinga[thirteenyearold]girla‘whore’ and a ‘slut’ in the presence of the girl’s mother serves no purpose other than to provoke a confrontation’’); In re John M., 201 Ariz. 424, 428, 36 P.3d 772 (App. 2001) (holding that racial slurs were ‘‘likely to provoke aviolentreactionwhenaddressedtoanordinarycitizen of African-American descent’’); Svedberg v. Stamness, 525 N.W.2d 678, 684 (N.D. 1994) (observing that ‘‘it is proper to consider the age of the addressee when determining the contextual setting’’ and that ‘‘[n]o one would argue that a different reaction is likely if a [thirteen year old] boy and a [seventy-five year old] man are confronted with identical fighting words’’); see also People in the Interest of R.C., supra, 2016 WL 6803065, *7(concludingthat‘‘the averageperson—evenanaverage [fourteen year old]—would not be expected to fly intoaviolentrageuponbeingshownaphotoofhimself with a penis drawn over it’’). Similarly, because the fighting words exception is concerned with the likelihood of violent retaliation, it properly distinguishes between the average citizen and those addressees who are in a position that carries with it an expectation of exercising a greater degree of restraint. In Lewis v. New Orleans, supra, 415 U.S. 135, Justice Powell, in concurrence, suggested that ‘‘a properlytrained[police]officermayreasonablybeexpected toexerciseahigherdegreeofrestraintthantheaverage citizen, and thus be less likely to respond belligerently to fighting words.’’ (Internal quotation marks omitted.) The Supreme Court later recognized the legitimacy of
this principle, observing that the fighting words exception ‘‘might require a narrower application in cases involving words addressed to a police officer’’ for the reason articulated by Justice Powell.8 Houston v. Hill, 482 U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). The Supreme Court did not have occasion to formally adopt the narrower standard in either Lewis orHillbecausethosecasesturnedonfacialchallenges, not as applied challenges that would require analyzing the speaker and the police officer addressee. Nevertheless, a majority of courts, including ours, hold police officers to a higher standard than ordinary citizens when determining the likelihood of a violent response bytheaddressee.See,e.g., Statev.Williams,205Conn. 456, 474 n.7, 534 A.2d 230 (1987); State v. Nelson, 38 Conn. Supp. 349, 354, 448 A.2d 214 (1982); Harbin v. State,358 So.2d856,857 (Fla.App.1978); State v. John W., supra, 418 A.2d 1104. The Supreme Court has not weighed in on the question of whether positions other than police officers could carry a greater expectation of restraint than the ordinarycitizen.Indeed,sinceTexas v. Johnson,supra, 491U.S.409,theSupremeCourthasnotconsideredthe fighting words exception as applied to any addressee in more than twenty-five years. Nevertheless, several courtshaveconsideredaspartofthecontextualinquiry whether the addressee’s position would reasonably be expectedtocausehimorhertoexerciseahigherdegree of restraint than the ordinary citizen under the circumstances. See, e.g., In re Nickolas S., supra, 226 Ariz. 188 (‘‘we do not believe that [the student’s] insults would likely have provoked an ordinary teacher to ‘exchange fisticuffs’ with the student or to otherwise react violently’’); In re Louise C., 197 Ariz. 84, 86, 3 P.3d 1004 (App.1999)(juvenile’sderogatorylanguagetoprincipal did not constitute fighting words because ‘‘[it] was not likely to provoke an ordinary citizen to a violent reaction, and it was less likely to provoke such a response from a school official’’); State v. Tracy, supra, 200 Vt. 238 n.19 (determining that ‘‘average person in the coach’s position would [not] reasonably be expected torespondto[the]defendant’sharanguewithviolence’’ wheredefendantwasparentofplayeroncoach’sjunior high school girls’ basketball team); but see People v. Stephen, supra, 153 Misc. 2d 390 (distinguishing earlier fighting words case involving defendant commenting to both police officer and private security guard, latter being ‘‘a civilian from whom [the remarks] might conceivably have evoked a retaliatory response’’). In sum, these cases affirm the fundamental principle that there are no per se fighting words; rather, courts must determine on a case-by-case basis all of the circumstances relevant to whether a reasonable person inthepositionoftheactualaddresseewouldhavebeen likelytorespondwithviolence.Thisprincipleisconsistentwiththecontextualapproachtakenwhenconsider
ing other categories of speech deemed to fall outside the scope of first amendment protection, such as true threats and incitement. See, e.g., State v. Krijger, 313 Conn. 434, 450, 97 A.3d 946 (2014) (‘‘In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a [true] threat is governed by an objective standard—whether a reasonable person would foresee that the statement wouldbeinterpretedbythosetowhomthemakercommunicates the statement as a serious expression of intent to harm or assault. . . . [A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.’’ [Internal quotation marks omitted.]); id., 453–54 (‘‘[a]n important factor to be considered in determining whether a facially ambiguous statement constitutes a true threat is the prior relationship betweentheparties’’);In reS.W.,45A.3d151,157(D.C. 2012) (‘‘[A] determination of what a defendant actually said is just the beginning of a threats analysis. Even whenwordsarethreateningontheirface,carefulattention must be paid to the context in which those statements are made to determine if the words may be objectively perceived as threatening.’’); see also Texas v. Johnson,supra, 491U.S. 409(in consideringwhether public burning of American flag constituted unprotected incitement, Supreme Court observed that ‘‘we havenotpermittedthegovernmenttoassumethatevery 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’’ [emphasis added; internal quotation marks omitted]). We are mindful that, despite the substantial body of case law underscoring the significance of the actual circumstances in determining whether the words spoken fall within the narrow fighting words exception, a few courts remain reluctant to take into account the circumstances of the addressee, e.g., occupation, in considering whether he or she is more or less likely to respond with immediate violence. See, e.g., State v. Robinson,319Mont.82,87,82P.3d27(2003)(declining to apply heightened standard to police officers); State v. Matthews, 111 A.3d 390, 401 n.12 (R.I. 2015) (same). The rationale behind ignoring these characteristics of theaddresseeisthatsuchastandardwouldbeinconsistent with applying an objective standard contemplating an average addressee. This position is flawed in several respects. First,thesecourtsmisapprehendtheobjectiveaspect of the fighting words standard. The ‘‘ ‘average addressee’ ’’ element ‘‘was designed to safeguard against the suppression of speech which might only provoke a particularly violent or sensitive listener’’
because ‘‘[a] test which turned upon the response of the actual addressee would run the risk of impinging upon the free speech rights of the speaker who could then be silenced based upon the particular sensitivities of each individual addressee.’’ People v. Prisinzano, supra, 170 Misc. 2d 529. Accordingly, it is not inconsistent with the application of an objective standard to consider the entire factual context in which the words were uttered because ‘‘[i]t is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the Chaplinsky test . . . .’’9 Lamar v. Banks, supra, 684 F.2d 718; see also S. Gard, ‘‘Fighting WordsasFreeSpeech,’’58Wash.U.L.Q.531,558(1980) (‘‘[I]t is certainly consistent with an objective [fighting words] test to apply a more specific standard of ‘the ordinaryreasonablepoliceofficer’inappropriatesituations.Indeed,theadoptionofastandardoftheordinary reasonable professional has never been deemed inconsistent with an objective standard of liability.’’ [Footnote omitted.]); cf. State v. Krijger, supra, 313 Conn. 450 (describing ‘‘objective’’ standard for analyzing true threatsconsidering‘‘theirentirefactualcontext,includingthesurroundingeventsandreactionofthelisteners’’ [internal quotation marks omitted]). Second, it is precisely this consideration of the specific context in which the words were uttered and the likelihood of actual violence, not an ‘‘undifferentiated fearorapprehensionofdisturbance,’’thatisrequiredby the United States Supreme Court’s decisions following Chaplinsky.(Internalquotationmarksomitted.)Cohen v. California, supra, 403 U.S. 23; see also Gooding v. Wilson, supra, 405 U.S. 528 (declaring statute facially overbroad because, as construed, it was applicable ‘‘to utterances where there was no likelihood that the person addressed would make an immediate violent response’’). Because the fighting words exception is concernedonlywithpreventingthelikelihoodofactual violence, an approach ignoring the circumstances of the addressee is antithetical and simply unworkable. For example, applying such an approach in this case wouldrequireustoengageinthefollowinglegalfiction: although Freeman was insulted on the basis of her gender, appearance, and apparent suitability for her position as a store manager, the fact finder would be required to assess how some hypothetical ‘‘ordinary’’ addresseewithnoapparentgender,appearance,orprofession would likely respond. See F. Kobel, ‘‘The Fighting Words Doctrine—Is There a Clear and Present Danger to the Standard?,’’ 84 Dick. L. Rev. 75, 94 (1979) (describing average addressee standard, which emphasizes words themselves, as ‘‘an attractive one because ofitsequitableovertones,’’butnevertheless‘‘inherently faulty’’ because ‘‘[a]bsent from the standard is criteria by which to judge what is average’’). Finally, as alluded to previously in this opinion, the fightingwordsexceptionisnotconcernedwithcreating
symmetrical free speech rights by way of establishing a uniform set of words that are constitutionally proscribed. See Cohen v. California, supra, 403 U.S. 22–23 (rejecting as ‘‘untenable’’ idea that ‘‘[s]tates, acting as guardians ofpublic morality,may properlyremove [an] offensive word from the public vocabulary’’). Rather, because the fighting words exception is intended only to prevent the likelihood of an actual violent response, it is an unfortunate but necessary consequence that we are required to differentiate between addressees who aremoreorlesslikelytorespondviolentlyandspeakers who are more or less likely to elicit such a response. See Conkle v. State, 677 So. 2d 1211, 1217 (Ala. Crim. App. 1995) (‘‘[P]resumably, statements made to classes of victims who may not be perceived as persons who would likely respond with physical retaliation . . . may seem to require a higher level of ‘low speech’ to constitute ‘fighting words.’ However, this possible discrimination as to victims is explainable in that the purpose . . . is to ensure public safety and public order.’’); A.Wertheimer,note,‘‘TheFirstAmendmentDistinction between Conduct and Content: A Conceptual Framework for Understanding Fighting Words Jurisprudence,’’63FordhamL.Rev.793,815–16(1994)(applying standard of reasonable person in position of actual addressee‘‘isconsistentwiththeideathatwordsthemselves are innocent until exploited in circumstances where particular addressees are likely to retaliate’’); note, ‘‘The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment,’’ 106 Harv. L. Rev.1129,1136(1993)(‘‘[b]ecausethe[Supreme]Court is concerned with the likelihood that speech will actually produce violent consequences, it logically distinguishesbetweenaddresseeswhoaremoreorlessprone to respond with violence’’). Accordingly, a proper contextual analysis requires considerationoftheactualcircumstances,asperceived by both a reasonable speaker and addressee, to determine whether there was a likelihood of violent retaliation. This necessarily includes the manner in which the words were uttered, by whom and to whom the words were uttered, and any other attendant circumstances thatwereobjectivelyapparentandbearonthequestion of whether a violent response was likely. Indeed, one matter on which both parties agree is that our inquiry must focus on the perspective of an average store manager in Freeman’s position. With this framework in place to guide a proper, contextual analysis, we turn to the issue in the present case. In considering the defendant’s challenge to the sufficiency of the evidence to support her conviction of breachofthepeaceintheseconddegreeinaccordance with her first amendment rights, we apply a two part test.First,asreflectedinthepreviousrecitationoffacts, we construe the evidence in the light most favorable to sustainingthe verdict.See State v. Cook,287Conn. 237,
254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). Second, we determine whether the trier of fact could have concluded from thosefacts andreasonableinferences drawntherefrom that the cumulative force of the evidence established guilt beyond a reasonable doubt. See id. Accordingly, to establish the defendant’s violation of § 53a-181 (a) (5);seefootnote1ofthisopinion;inlightofitsconstitutional gloss, the state was required to prove beyond a reasonabledoubtthatthedefendant’swordswerelikely to provoke an imminent violent response from an average store manager in Freeman’s position. Cf. State v. Krijger,supra,313Conn.448(‘‘[t]oestablishthedefendant’s violation of [General Statutes (Rev. to 2007)] §§ 53a-62 [a] [3] and 53a-181 [a] [3] on the basis of his statements to [the town attorney], the state was requiredtoprovebeyondareasonabledoubtthatthose statements represented a true threat’’). ‘‘In cases where [the line between speech unconditionally guaranteed and speech which may be legitimately regulated] must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see’’ if they are consistent with the first amendment. (Internal quotation marks omitted.) State v. DeLoreto, 265 Conn. 145, 153, 827 A.2d 671 (2003); see also DiMartino v. Richens, 263 Conn. 639, 661, 822 A.2d 205 (2003) (‘‘inquiry into the protected status of . . . speech is one of law, not fact’’ [internal quotation marks omitted]).Weundertakeanindependentexaminationofthe record as a whole to ensure ‘‘that the judgment does not constitute a forbidden intrusion on the field of free expression.’’ (Internal quotation marks omitted.) State v. DeLoreto, supra, 153. At the outset of that examination, we must acknowledge that the words and phrases used by the defendant—‘‘fat ugly bitch,’’ ‘‘cunt,’’ and ‘‘fuck you, you’re not a manager’’—were extremely offensive and meant to personally demean Freeman.The defendant invoked one or more of the most vulgar terms known in our lexicon to refer to Freeman’s gender. Nevertheless, ‘‘[t]he question in this case is not whether the defendant’s words were reprehensible, which they clearly were; or cruel, which they just as assuredly were; or whether they were calculated to cause psychic harm, whichtheyunquestionablywere;butwhethertheywere criminal.’’ (Emphasis in original.) State v. Krijger, 130 Conn. App. 470, 485, 24 A.3d 42 (2011) (Lavine, J., dissenting), rev’d, 313 Conn. 434, 97 A.3d 946 (2014) (adopting Appellate Court dissent’s position). Uttering a cruel or offensive word is not a crime unless it would tend to provoke a reasonable person in the addressee’s position to immediately retaliate with violence under the circumstances. See People in the Interest of R.C., supra, 2016 WL 6803065, *6–7 (concluding that mere utterance of ‘‘ ‘cocksucker,’ ’’ although vulgar and pro
fane, did not constitute fighting words). Given the context of the defendant’s remarks, we cannot conclude that the insults were ‘‘akin to dropping a match into a pool of gasoline.’’ State v. Tracy, supra, 200 Vt. 237. Several factors bear on our conclusion that the state did not prove beyond a reasonable doubt that Freeman was likely to retaliate with violence. We begin with the fact that the confrontation in the supermarket did not happen in a vacuum; it was preceded by a telephone call in which the defendant was belligerent and used many of the ‘‘swear word[s]’’ that she would later say to Freeman in person. After the defendant arrived at thesupermarketafewminuteslater,Freemancorrectly surmised that she was the woman who had just called. Consequently, when Freeman approached the defendanttoreiterateamessagethatsheknewthedefendant did not want to hear, Freeman reasonably would have been aware of the possibility that a similar barrage of insults,howeverunwarranted,wouldbedirectedather. Freeman’s position of authority at the supermarket, however, placed her in a role in which she had to approach the defendant. In addition, as the store manager on duty, Freeman was charged with handling customer service matters. The defendant’s angry words were an obvious expression of frustration at not being able to obtain services to which she thought she was entitled. Store managers are routinely confronted by disappointed, frustrated customers who express themselves in angry terms, although not always as crude as those used by the defendant.Peopleinauthoritativepositionsofmanagement and control are expected to diffuse hostile situations, if not for the sake of the store’s relationship with that particular customer, then for the sake of other customers milling about the store. Indeed, as the manager in charge of a large supermarket, Freeman would beexpectedtomodelappropriate,responsivebehavior, aimed at de-escalating the situation, for her subordinates,atleastoneofwhomwasobservingtheexchange. Significantly, as a store manager, Freeman would have had a degree of control over the premises where theconfrontationtookplace.Anaveragestoremanager would know as she approached the defendant that, if the defendant became abusive, the manager could demandthatthedefendantleavethepremises,threaten to have her arrested for trespassing if she failed to comply, and make good on that threat if the defendant still refused to leave. With such lawful self-help tools at her disposal and the expectations attendant to her position, it does not appear reasonably likely that Freemanwasatriskoflosingcontrolovertheconfrontation. We recognize that a different conclusion might be warranted if the defendant directed the same words at Freeman after Freeman ended her work day and left the supermarket, depending on the circumstances pre
sented. Given the totality of the circumstances in the present case, however, it would be unlikely for an on duty store manager in Freeman’s position to respond in kind to the defendant’s angry diatribe with similar expletives. It would be considerably more unlikely for a person in Freeman’s position, in the circumstances presented, to respond with a physical act of violence. Indeed, in keeping with the expectations attendant to herpositionandthecircumstances withwhichshewas confronted, Freeman did not respond with profanity, muchlesswithviolence,towardthedefendant.Instead, sheterminatedtheconversationbeforeitcouldescalate further with the simple words, ‘‘Have a good night.’’ Although the reaction of the addressee is not dispositive; see Lamar v. Banks, supra, 684 F.2d 718–19; it is probative of the likelihood of a violent reaction. See Klen v. Loveland, supra, 661 F.3d 510 (‘‘[t]he reaction of actual hearers of the words constitutes significant probativeevidenceconcerningwhetherthespeechwas inherently likely to cause a violent reaction’’); Seattle v. Camby, supra, 104 Wn. 2d 54 (‘‘the addressee’s reaction or failure to react is not the sole criteria, but is a factortobeconsideredinevaluatingtheactualsituation in which the words were spoken’’). There is no reason tobelievethatFreeman’sreactionwasuncharacteristic of a reasonable professional in a like situation. Therefore, on the basis of our independent review of the record, we cannot conclude that an average store manager in Freeman’s position would have responded to the defendant’s remarks with imminent violence. Nonetheless, the state contends that ‘‘courts in sister states and in Connecticut have found comparable abusive epithets to constitute ‘fighting words’ where they havebeendirectedatpoliceofficerswho,becausethey are ‘properly trained,’ ‘may reasonably be expected to exercise a higher degree of restraint than the average citizen,’ ’’quotingthiscourt’sdecisioninStatev.Szymkiewicz, supra, 237 Conn. 620 n.12, as one such example. We disagree that this case law is sufficiently relevant or persuasive. We observe that all of the cases citedweredecidedtwoorthreedecadesago,andtherefore do not consider case law recognizing that public sensitivities have been dulled to some extent by the devolution of discourse.10 With regard to Szymkiewicz, a case not involving words directed at a police officer, although there are superficial factual similarities to the presentcaseinthattheexpletivefuckyouwasdirected at an employee of a Stop & Shop supermarket; id., 615; that is where the similarities end. Significantly, the majority in Szymkiewicz pointed to a ‘‘heated exchange’’that hadensuedbetweenthe storedetective and the defendant after the former accused the latter of shoplifting and to a threatening remark directed to thestoredetectiveaspartofthe‘‘cumulative’’evidence supporting the application of the fighting words exception. Id., 623. Thus, the majority’s conclusion in that
case is consistent with others that considered whether thewordsatissuewereprecededbyahostileexchange oraccompaniedbyaggressivebehaviorwhendetermining the likelihood of a violent reaction. See State v. James M., supra, 111 N.M. 476; Landrum v. Sarratt, supra, 352 S.C. 143; In re S.J.N-K., supra, 647 N.W.2d 709. Indeed, precisely for these reasons, the defendant in Szymkiewicz was convicted under a different subdivision of the breach of the peace statute than the one at issue in the present case; see State v. Szymkiewicz, supra, 614; requiring the defendant to have engaged ‘‘in fighting or in violent, tumultuous or threatening behavior . . . .’’ General Statutes § 53a-181 (a) (1). Insofar as there is dictum in a footnote in Szymkiewiczsuggestingthat,inorderfortheheightenedexpectation of restraint applicable to police officers to apply to another type of addressee, the addressee must have received the same level of training as that of a police officer; see State v. Szymkiewicz, supra, 237 Conn. 620 n.12; we need not consider the propriety of that conclusion. We do not rest our decision on the nature of the training received by the average supermarket manager; rather, we focus on the expectations attendant to such positions under the particular circumstances of the present case. We observe that the court in Szymkiewicz recognized that it did not have the benefit of briefing on this issue, as the defendant had made no such claim. See id. We further observe that the court in Szymkiewicz relied on the actual training afforded to the particular store detective, a focus that appears to be in tension with the established objective standardoftheaveragelistener intheaddressee’sposition.Cf.InreNickolasS.,supra,226Ariz.188(consideringhowordinaryteacherwouldrespondtoinsultsfrom student in classroom setting). Accordingly, Szymkiewicz does not dictate a contrary conclusion. In sum, the natural reaction of an average person in Freeman’spositionwhoisconfrontedwithacustomer’s profaneoutburst,unaccompaniedbyanythreats,would not be to strike her. We do not intend to suggest that words directed at astore manager will never constitute fightingwords.Rather,wesimplyholdthatunderthese circumstances the defendant’s vulgar insults would not be likely to provoke violent retaliation. Because the defendant’sspeechdoesnotfallwithinthenarrowcategory of unprotected fighting words, her conviction of breach of the peace in the second degree on the basis ofpurespeechconstitutesaviolationofthefirstamendment to the United States constitution.

Outcome: