Tuesday, August 1, 2017

David L. Hudson Jr.: High Court reverses woman’s conviction for profanity uttered at store

  A Connecticut woman who uttered a slew of profanity at a store manager during a customer service dispute had her conviction reversed by the state high court. The Connecticut Supreme Court explained that context matters in determining whether an individuals’ verbal outburst qualifies as fighting words – defined as words that can cause the recipient to react immediately with violence.

  "Fighting words" remains one of those narrow, unprotected categories of speech that sometimes leads to breach-of-the-peace or disorderly conduct convictions. The U.S. Supreme Court first identified fighting words as an unprotected category in Chaplinsky v. New Hampshire (1942), defining them as “words that by their very utterance inflict injury or cause an immediate breach of the peace.” Later cases have all but interred the first part of the definition – “words that by their very utterance inflict injury” – but fighting words cases still abound based on the “immediate breach of the peace” definition.

  In this Connecticut case, Nina C. Baccala called the Stop & Shop in the evening to inquire whether she could receive a Western Union money transfer, a service offered at the store. The assistant store manager, Tara Freeman, informed her that it was too late for that service. Baccala cursed at Freeman over the phone.

  Baccala still drove to the store and sought to receive the money transfer. Freeman approached Baccala and told her that those services were closed. Baccala then unleased more profane remarks at Freeman, who identified Baccala’s voice from the earlier phone call.

  Freeman did not respond with any violence or profanity of her own but merely told Baccala to “have a good night.” Baccala left the store but later was arrested and charged with breach of the peace. A jury convicted her and she was sentenced to 25 days in jail.

  On appeal, the Connecticut Supreme Court reversed in its July 11, 2017, decision in State v. Baccala.

  Justice Andrew J. McDonald emphasized context was important in evaluating whether words cross the line into the unprotected category of fighting words. “This context based view is a logical reflection of the way the meaning and impact of words change or time,” he wrote. “A proper contextual analysis requires consideration of the actual circumstances as perceived by a reasonable speaker and addressee to determine whether there was a likelihood of violent retaliation.”

  McDonald emphasized that the recipient of Baccala’s vile language, Freeman, was a store manager who was used to dealing with angry and upset customers. “Store managers are routinely confronted by disappointed, frustrated customers who express themselves in angry terms, although not always as crude as those used by [Baccala],” he wrote.

  Some courts have held that police officers are held to a higher standard in these type cases because they have been trained to exercise restraint. U.S. Supreme Court Justice Lewis Powell advocated this view in a concurring opinion in Lewis v. New Orleans (1972).

  The fighting words doctrine is a controversial aspect of free-speech jurisprudence because it allows for the punishment of individuals for intemperate, offensive speech. After all, the First Amendment protects much offensive, obnoxious, and even repugnant speech.

  Nina Baccala’s profanity was offensive, obnoxious and repugnant, but the Connecticut Supreme Court determined it shouldn’t have led to a jail sentence.

  About the author: David L. Hudson, Jr. is the author of Let the Students Speak: A History of the Fight for Freedom of Expression in American Schools and Teen Legal Rights (3rd Edition).

  This article was published by the Newseum Institute.

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