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*********************************************** 
STATE OF CONNECTICUT v. DAVID G. LIEBENGUTH

(SC 20145)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.*

Syllabus

The defendant was convicted of breach of the peace in the second degree

in connection with an incident in which he confronted and directed

certain comments and racial slurs at M, an African-American parking

enforcement officer, who, immediately beforehand, had placed a parking

ticket on the defendant’s vehicle for being parked in a metered space

without payment. Upon returning to his vehicle and finding the parking

ticket, the defendant confronted M. After M and the defendant exchanged

words, the situation escalated, and the defendant told M that the parking

authority with which he was employed was ‘‘fucking unbelievable’’ and

that he issued the parking ticket because the defendant’s car was

‘‘white.’’ The defendant then told M that the actual reason he was given

a parking ticket was because he was white. As the defendant started

to walk away from M, the defendant stated, ‘‘remember Ferguson,’’

which apparently was a reference to a then recent and highly publicized

shooting of an African-American man by a white police officer in Ferguson, Missouri. Thereafter, both M and the defendant returned to and

entered their vehicles, both of which had at least some of their windows

down. M then thought he heard the defendant say the words ‘‘fucking

niggers,’’ which caused him to believe that the defendant’s earlier comment about Ferguson was a threat meant to imply that what had happened in Ferguson was going to happen to him. As M was driving away,

the defendant cut through the parking lot in his vehicle, approached

M’s vehicle, and then drove past M. As the defendant was driving past

M, he looked directly at M with an angry expression and repeated the

slur ‘‘fucking niggers’’ louder than he had the first time he uttered it.

On appeal to the Appellate Court from the judgment of conviction, the

defendant claimed, inter alia, that the evidence was insufficient to sustain

his breach of the peace conviction insofar as the racial taunts that he

directed at M were protected by the first amendment to the United

States constitution and, therefore, could not form the basis of such a

conviction. The Appellate Court reversed the defendant’s conviction,

concluding, inter alia, that the defendant’s utterances were unlikely to

provoke an immediate, violent response by a reasonable person in M’s

shoes and, thus, were not prohibited fighting words under the first

amendment. On the granting of certification, the state appealed to this

court. Held that, contrary to the determination of the Appellate Court,

the language the defendant used to demean, intimidate and anger M,

when considered in the circumstances in which that language was used,

constituted fighting words likely to provoke an immediate, violent

response from a reasonable person in M’s position, and, accordingly,

the first amendment did not prohibit the state’s use of the defendant’s

words to obtain his breach of the peace conviction: the defendant’s use

of the word ‘‘niggers,’’ which is inextricably linked to racial prejudice

and oppression, and which, when used by a white person as an assertion

of the racial inferiority of an African-American person, is highly offensive

and demeaning, his use of the profane adjective ‘‘fucking’’ to modify

the word ‘‘niggers’’ to emphasize his anger, his continued escalation of

the confrontation by approaching M while they were in their vehicles,

looking at M with an angry expression as he drove by and repeating

the words ‘‘fucking niggers,’’ and his use of aggressive hand and bodily

gestures and other profanities and racially charged innuendos earlier on

in the confrontation all served to incite an immediate, violent response

by a reasonable person in M’s shoes; moreover, although M, like any

parking enforcement officer, undoubtedly was aware that some members of the public might express frustration or anger upon receiving a

ticket, and although M did not react violently despite the highly inflammatory and inciting nature of the defendant’s words and conduct, this

court disagreed that the average African-American parking official would
have been prepared for and responded peaceably to the kind of racial

slurs and threatening behavior with which M was confronted; furthermore, the fact that the defendant and M were in their vehicles when

the defendant used the epithet ‘‘fucking niggers’’ was of no consequence,

as the two men were in close proximity to and maintained eye contact

with each other, so that each could see and hear each other clearly, and

M was in a position to pursue the defendant or to retaliate immediately.

(Two justices concurring separately in two opinions)

Argued March 29, 2019—officially released August 27, 2020**

Procedural History

Amended information charging the defendant with

breach of the peace in the second degree and tampering

with a witness, brought to the Superior Court in the

judicial district of Stamford-Norwalk, geographical area

number twenty, and tried to the court, Hernandez, J.;

verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, DiPentima, C.

J., and Sheldon and Devlin, Js., which reversed in part

the trial court’s judgment and remanded the case to that

court with direction to render a judgment of acquittal

on the charge of breach of the peace in the second

degree, and the state, on the granting of certification,

appealed to this court. Reversed in part; judgment

directed.

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Richard J. Colangelo, Jr.,

state’s attorney, and Nadia C. Prinz, former deputy

assistant state’s attorney, for the appellant (state).

John R. Williams, for the appellee (defendant).
Opinion

PALMER, J. Under General Statutes § 53a-181 (a) (5),

a person is guilty of breach of the peace in the second

degree when, with the intent to cause inconvenience,

annoyance or alarm, he uses abusive language in a public place.1 That broad statutory proscription, however,

is limited by the free speech provisions of the first

amendment to the United States constitution,2 which

prohibit the government from ‘‘restrict[ing] expression

because of its message, its ideas, its subject matter, or

its content’’; (internal quotation marks omitted) Ashcroft v. American Civil Liberties Union, 535 U.S. 564,

573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002); thereby

protecting speech ‘‘without regard . . . to the truth,

popularity, or social utility of the ideas and beliefs [that]

are offered.’’ National Assn. for the Advancement of

Colored People v. Button, 371 U.S. 415, 445, 83 S. Ct.

328, 9 L. Ed. 2d 405 (1963). These safeguards, however,

although expansive, are not absolute, and the United

States Supreme Court has long recognized a few discrete categories of speech that may be prosecuted and

punished, including so-called ‘‘fighting words’’—‘‘those

personally abusive epithets [that], when addressed to

the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.’’

Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 29

L. Ed. 2d 284 (1971). In this certified appeal, we must

determine whether certain vulgar and racially charged

remarks of the defendant, David G. Liebenguth, which

included multiple utterances of the words ‘‘fucking niggers’’ directed at an African-American parking enforcement official during a hostile confrontation with that

official following the defendant’s receipt of a parking

ticket, were ‘‘fighting words’’ subject to criminal sanctions. As a result of his conduct, the defendant was

arrested and charged with breach of the peace in the

second degree in violation of § 53a-181 (a) (5) and,

following a trial to the court, was found guilty.3 On

appeal to the Appellate Court, the defendant claimed,

inter alia, that the evidence was insufficient to support

the trial court’s finding of guilty because the words he

uttered to the parking official constituted protected

speech that could not, consistent with the first amendment, provide the basis of a criminal conviction. See

State v. Liebenguth, 181 Conn. App. 37, 47, 186 A.3d 39

(2018). Although acknowledging that the defendant’s

language was ‘‘extremely vulgar and offensive’’ and

‘‘meant to personally demean’’ the official; id., 53; the

Appellate Court, with one judge dissenting, agreed with

the defendant that his speech was constitutionally protected and that, consequently, his conviction, because

it was predicated on that speech, could not stand. See

id., 54; see also id., 58 (Devlin, J., concurring in part

and dissenting in part). We granted the state’s petition

for certification to appeal, limited to the question of

whether the Appellate Court correctly concluded that
the defendant’s conviction must be reversed because

the first amendment barred his prosecution for the verbal statements at issue. See State v. Liebenguth, 330

Conn. 901, 189 A.3d 1231 (2018). We now conclude

that the defendant’s remarks were unprotected fighting

words and, therefore, that his conviction does not run

afoul of the first amendment. Accordingly, we reverse

the judgment of the Appellate Court in part and remand

the case to that court with direction to affirm the trial

court’s judgment with respect to his conviction of

breach of the peace in the second degree.

The opinion of the Appellate Court sets forth the

following relevant facts and procedural history.

‘‘Michael McCargo, a parking enforcement officer for

the town of New Canaan, testified that he was patrolling

the [Morse] Court parking lot on the morning of August

28, 2014, when he noticed that the defendant’s vehicle

was parked in a metered space for which no payment

had been made. He first issued a [fifteen dollar parking]

ticket for the defendant’s vehicle, then walked to

another vehicle to issue a ticket, while his vehicle

remained idling behind the defendant’s vehicle. As

McCargo was returning to his vehicle, he was

approached by the defendant, whom he had never

before seen or interacted with. The defendant said to

McCargo, ‘not only did you give me a ticket, but you

blocked me in.’ Initially believing that the defendant

was calm, McCargo jokingly responded that he didn’t

want the defendant getting away. When the defendant

then attempted to explain why he had parked in the

lot, McCargo responded that his vehicle was in a

metered space for which payment was required, not in

one of the lot’s free parking spaces. 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.’ ’’ State v. Liebenguth,

supra, 181 Conn. App. 39–40.

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.’ 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. McCargo also believed that, by

uttering the racial slur and making reference to Ferguson, the defendant was trying to rile him up and [to]

escalate the situation [by ‘taking it to a whole other

level’]. That, however, did not happen, for, although

McCargo found the remark offensive, and he had never

before been the target of such language while performing his duties, he remained calm at all times and

simply drove away to resume his patrol.’’ Id., 40.

McCargo further testified, however, that, ‘‘[s]hortly

thereafter . . . as [McCargo] was driving away, the

defendant [cut through the parking lot in his vehicle,

approached McCargo, and then] drove past him.’’ Id.,

40–41. As the defendant was driving past McCargo, ‘‘the

defendant turned toward him, looked directly at him

with an angry expression on his face, and repeated

the slur, ‘fucking niggers.’ McCargo [also] noted in his

testimony that the defendant said the slur louder the

second time than he had the first time.

‘‘After the defendant drove out of the parking lot,

McCargo [who was shocked and personally offended

by the encounter] called his supervisor, who instructed

him to report the incident to the New Canaan police.

In his report, McCargo noted that there might have been

a witness to the interaction, whom he described as a

young, white female. The defendant later was arrested

in connection with the incident on the charge of breach

of the peace in the second degree.’’ Id., 41.

‘‘Next to testify was Mallory Frangione, the young,

white female witness to the incident whom McCargo

had mentioned in his report. She testified that she

parked in the [Morse] Court parking lot around 9:45 a.m.

on . . . August 28, 2014, and, as soon as she opened

her car door, she heard yelling. She then saw two men,

McCargo and the defendant, who were standing outside

of their vehicles about seventy feet away from her. She

observed that the defendant was moving his hands all

around, that his body movements were aggressive and

irate, and that his voice was loud. She heard him say

something about Ferguson, then say that something

was ‘[fucking] unbelievable.’ [Frangione] further testified that she saw the defendant take steps toward

McCargo while acting in an aggressive manner. She

described McCargo, by contrast, as calm, noting that he

never raised his voice, moved his arms or gesticulated

in any way. McCargo ultimately backed away from the

defendant and got into his vehicle. The defendant,

[Frangione] recalled, drove in two circles around the

parking lot before leaving. Frangione testified that witnessing the interaction made her feel nervous and

upset.’’4

Id.

‘‘After the state rested [its case], the defendant moved
for a judgment of acquittal . . . which the court

denied. The defendant elected not to testify. The court,

ruling from the bench, found the defendant guilty . . . .

It reasoned as follows: ‘In finding that the defendant’s

language and behavior [are] not protected speech, the

court considers the words themselves, in other words,

the content of the speech, the context in which [they

were] uttered, and all of the circumstances surrounding

the defendant’s speech and behavior.

‘‘ ‘The court finds that the defendant’s language, fucking niggers directed at . . . McCargo twice . . . is not

protected speech. . . . [I]n the American lexicon,

there is no other racial epithet more loaded with racial

animus, no other epithet more degrading, demeaning

or dehumanizing. It is a word [that] is probably the

most [vile] racial epithet a non-African-American can

direct [toward] an African-American. [The defendant]

is white. . . . McCargo is African-American.

‘‘ ‘In light of this country’s long and shameful history

of state sanctioned slavery, Jim Crow segregation, state

sanctioned racial terrorism, financial and housing discrimination, the word simply has . . . no understanding under these circumstances other than as a word

directed to incite violence. The word itself is a word

likely to provoke a violent response.

‘‘ ‘The defendant is not however being prosecuted

solely for use of this word. All language must be considered in light of its context.

‘‘ ‘The court finds that considering . . . the content

of the defendant’s speech taken in context and in light

of his belligerent tone, his aggressive stance, the fact

that he was walking [toward] . . . McCargo and moving his hands in an aggressive manner, there’s no other

interpretation other than these are fighting words.5 And

he uttered the phrase not once but twice. It was

directed—the court finds that it was directed directly at

. . . McCargo. There were no other African-Americans

present . . . in the parking lot when it happened, and

indeed . . . McCargo’s unease and apprehension at

hearing those words [were] corroborated by . . . Frangione who . . . said that she felt disconcerted by the

defendant’s tone of voice and his aggressive stance and

actions.’ ’’ (Footnote added.) Id., 43–44.

The defendant thereafter appealed to the Appellate

Court, claiming, inter alia, that the evidence was insufficient to support his conviction of breach of the peace

in the second degree. Id., 39. Specifically, he maintained

that the racial taunts he directed at McCargo were protected by the first amendment and, therefore, could not

form the basis of a conviction under § 53a-181 (a) (5).

Id., 47. Relying in large measure on this court’s decision

in State v. Baccala, 326 Conn. 232, 163 A.3d 1, cert.

denied, U.S. , 138 S. Ct. 510, 199 L. Ed. 2d 408

(2017),6

the Appellate Court, in a two-to-one decision,
agreed with the defendant that the evidence was insufficient to support his conviction because his utterances

were unlikely to provoke an immediate, violent

response by a reasonable person in McCargo’s shoes—

that is, his utterances were not prohibited fighting

words, and, therefore, the defendant’s conviction could

not pass muster under the first amendment. See State

v. Liebenguth, supra, 181 Conn. App. 53–54.

In support of its conclusion, the Appellate Court reasoned: ‘‘[T]he defendant used extremely vulgar and

offensive language, meant to personally demean

McCargo. Under the circumstances in which he uttered

this language, however, it was not likely to tend to

provoke a reasonable person in McCargo’s position

immediately to retaliate with violence. Although the

evidence unequivocally supports a finding that the

defendant at one point walked toward McCargo while

yelling and moving his hands . . . [t]he evidence [also]

unequivocally shows . . . that the defendant was in his

car both times that he directed the racial slurs toward

McCargo. McCargo did testify that the defendant’s use

of the slurs shocked and appalled him, and that he

found the remarks offensive. He also testified, however,

that he remained calm throughout the encounter and

felt no need to raise his voice to the defendant. A reasonable person acting in the capacity of a parking official

would be aware that some level of frustration might be

expressed by some members of the public who are

unhappy with receiving tickets and would therefore not

be likely to retaliate with immediate violence during

such an interaction. In reviewing the entire context of

the interaction, we therefore find that, because

McCargo was unlikely to retaliate with immediate violence to the conduct for which the defendant was

charged, the defendant’s words were not ‘fighting

words,’ [on] which he might appropriately be convicted

of breach of the peace. The defendant’s conviction of

breach of the peace in the second degree must therefore

be reversed.’’ (Footnotes omitted.) Id.

Judge Devlin dissented with respect to this holding

because, in his view, the defendant’s remarks, when

considered in the context in which they were uttered,

constituted fighting words that were likely to provoke

a reasonable person in McCargo’s position to retaliate

with violence. See id., 66 (Devlin, J., concurring in part

and dissenting in part). Judge Devlin concluded that

the majority did not adequately account for the truly

heinous and inflammatory nature of the word ‘‘nigger,’’

in particular, when, as in the present case, that

‘‘viciously hostile epithet,’’ which has deep roots in this

nation’s long and deplorable history of racial bigotry

and discrimination, is used by a white person with the

intent of demeaning and humiliating an African-American person. (Internal quotation marks omitted.) Id.,

64–65 (Devlin, J., concurring in part and dissenting in

part). In rejecting the defendant’s assertion that his
speech was shielded from prosecution by the first

amendment, Judge Devlin explained that the defendant’s words ‘‘were scathing insults that in many situations would provoke a reflexive, visceral response.’’ Id.,

67 (Devlin, J., concurring in part and dissenting in part).

Indeed, according to Judge Devlin, ‘‘if angrily calling an

African-American man a ‘fucking [nigger]’ after taunting

him with references to a recent police shooting of a

young African-American man by a white police officer

is not breach of the peace,’’ then the fighting words

doctrine no longer has any ‘‘continued vitality’’ under

the first amendment. (Internal quotation marks omitted.) Id., 68 (Devlin, J., concurring in part and dissenting

in part).

We subsequently granted the state’s petition for certification to appeal to decide whether the Appellate Court

was correct in holding that the defendant’s conviction

had to be reversed because the language that formed

the basis of that conviction was protected by the first

amendment.7 For the reasons that follow, we agree with

Judge Devlin and the trial court that, under the circumstances presented, the first amendment does not bar

the defendant’s conviction because his racist and

demeaning utterances were likely to incite a violent

reaction from a reasonable person in McCargo’s position.8

For purposes of this appeal, there is no dispute that

the evidence adduced by the state at trial supports the

trial court’s factual findings. The sole issue we must

decide, then, is whether, contrary to the determination

of the Appellate Court, those factual findings and any

inferences that reasonably may be drawn therefrom are

sufficient to establish the defendant’s guilt beyond a

reasonable doubt. See, e.g., State v. Parnoff, 329 Conn.

386, 395, 186 A.3d 640 (2018).

Because the defendant’s conviction is predicated on

his verbal statements, our determination of the sufficiency of the state’s case necessarily depends on

whether those statements deserve the protection of the

first amendment, despite their patently offensive and

objectionable nature. If they do, they cannot serve as

the basis for his conviction, which would have to be

reversed for evidentiary insufficiency. The defendant

having been charged with violating § 53a-181 (a) (5) by

use of allegedly ‘‘abusive . . . language’’; General Statutes § 53a-181 (a) (5); see footnote 1 of this opinion;

we therefore must decide whether his language, which

was no doubt ‘‘abusive’’ under the commonly understood meaning of that term, nonetheless is entitled to

constitutional protection. To make that determination,

we apply the judicial gloss necessary to limit the reach

of the breach of the peace statute to ensure that it

comports with constitutional requirements. See State

v. Baccala, supra, 326 Conn. 234, 251 (placing gloss

on § 53a-181 (a) (5) to avoid possibility of conviction
founded on constitutionally protected speech). For

present purposes, ‘‘the constitutional guarantee of freedom of speech requires that [§ 53a-181 (a) (5)] be confined to language [that], under the circumstances of its

utterance, constitutes [unprotected] fighting words—

those [that] by their very utterance inflict injury or tend

to incite an immediate breach of the peace.’’ (Internal

quotation marks omitted.) State v. Beckenbach, 1 Conn.

App. 669, 678, 476 A.2d 591 (1984), rev’d on other

grounds, 198 Conn. 43, 501 A.2d 752 (1985). ‘‘Accordingly, to establish the defendant’s violation of § 53a-181

(a) (5) . . . in light of its constitutional gloss, the state

was required to prove beyond a reasonable doubt that

the defendant’s words were likely to provoke an imminent violent response’’ under the circumstances in

which they were uttered. (Citation omitted.) State v.

Baccala, supra, 250–51.

In view of the fact that the state’s case against the

defendant implicates his free speech rights, several

additional principles govern our review of the issue

presented. In certain cases, such as the present one, in

which ‘‘[the line between speech unconditionally guaranteed and speech that may be legitimately regulated]

must be drawn, the rule is that we examine for ourselves

the statements [at] issue and the circumstances under

which they were made to see if they are consistent

with the first amendment.’’ (Internal quotation marks

omitted.) Id., 251. In other words, ‘‘the inquiry into the

protected status of . . . speech is one of law, not fact.’’

(Internal quotation marks omitted.) State v. Parnoff,

supra, 329 Conn. 395. We therefore ‘‘apply a de novo

standard of review . . . .’’ (Internal quotation marks

omitted.) Id. Accordingly, we have ‘‘an obligation to

make an independent examination of the whole record

in order to make sure that the judgment does not constitute a forbidden intrusion [in] the field of free expression.’’ (Internal quotation marks omitted.) Id., 395–96.

‘‘This independent scrutiny, however, does not authorize us to make credibility determinations regarding

disputed issues of fact. Although we review de novo

the trier of fact’s ultimate determination that the statements at issue constituted [fighting words], we accept

all subsidiary credibility determinations and findings

that are not clearly erroneous.’’ (Internal quotation

marks omitted.) Id., 396.

Recently, in State v.Baccala, supra, 326 Conn. 237–50,

we undertook a thoroughgoing examination of the roots

and scope of the fighting words doctrine, which was

first articulated by the United States Supreme Court

more than seventy-five years ago in Chaplinsky v. New

Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031

(1942). See id., 569, 573 (holding that ‘‘God damned

racketeer’’ and ‘‘damned Fascist’’ were epithets likely

to provoke addressee to retaliate violently, thereby

causing breach of the peace (internal quotation marks

omitted)). As we explained in Baccala; see State v.
Baccala, supra, 237–38; although the first amendment

protects nearly all speech, no matter how detestable

or odious it may be, that protection does not extend

to the extremely narrow category of words that ‘‘have

a direct tendency to cause acts of violence by the person

to whom, individually, the remark is addressed.’’ (Internal quotation marks omitted.) Chaplinsky v. New

Hampshire, supra, 573. In recognizing the fighting

words exception to the protection ordinarily afforded

speech under the first amendment, the court in

Chaplinsky reasoned that such words comprise ‘‘no

essential part of any exposition of ideas, and are of

such slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed

by the social interest’’ in maintaining the peace by preventing the immediate incitement of violence. Id., 572.

It is by now well settled that there are no per se

fighting words because words that are likely to provoke

an immediate, violent response when uttered under one

set of circumstances may not be likely to trigger such

a response when spoken in the context of a different

factual scenario. See State v. Baccala, supra, 326 Conn.

238. Consequently, whether words are fighting words

necessarily will depend on the particular circumstances

of their utterance. See id., 239; see also State v. Hoskins,

35 Conn. Supp. 587, 591, 401 A.2d 619 (App. Sess. 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.’’ (Internal quotation marks omitted.)). This

contextual approach is also ‘‘a logical reflection of the

way the meaning and impact of words change over

time.’’ State v. Baccala, supra, 239; see also id. (‘‘[w]hile

calling someone a racketeer or a fascist might naturally

have invoked a violent response in the 1940s when

Chaplinsky was decided, those same words would be

unlikely to even raise an eyebrow today’’). Indeed, due

to changing social norms, public discourse has become

coarser in the years following Chaplinsky; id., 298 (Eveleigh, J., concurring in part and dissenting in part); such

that, today, ‘‘there are fewer combinations of words

and circumstances that are likely to fit within the fighting words exception.’’9 State v. Parnoff, supra, 329

Conn. 413 (Kahn, J., concurring in the judgment); see

also id. (‘‘[a]s certain language is acceptable in more

situations, the borders of the fighting words exception

contract’’).

Against this broad jurisprudential backdrop in Baccala, we sought to identify the kinds of considerations

likely to be relevant in determining, in any given case,

whether the words at issue constituted unprotected

fighting words. We explained: ‘‘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. . . . This necessarily includes a
consideration of a host of factors.

‘‘For example, the manner and circumstances in

which the words were spoken . . . [and] [t]he situation under which the words are uttered . . . . Thus,

whether the words were preceded by a hostile exchange

or accompanied by aggressive behavior will bear on

the likelihood of such a reaction. . . .

‘‘A proper examination of context also considers

those personal attributes of the speaker and the

addressee that are reasonably apparent because they

are necessarily a part of the objective situation in which

the speech was made. . . . Courts have, for example,

considered the age, gender, race, and status of the

speaker. . . . 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 [himself or herself], such as a

child, a frail elderly person, or a seriously disabled person.

‘‘Although . . . the speech must be of such a nature

that it is likely to provoke the average person to retaliation . . . when there are objectively apparent characteristics that would bear on 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. . . .

‘‘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. . . . [Consequently, because] a properly

trained [police] officer may reasonably be expected to

exercise a higher degree of restraint than the average

citizen . . . [we] hold police officers to a higher standard than ordinary citizens when determining the likelihood of a violent response by the addressee.’’ (Citations

omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) State v. Baccala, supra,

326 Conn. 240–44.

In addition, ‘‘several courts have considered as part of

the contextual inquiry whether the addressee’s position

would reasonably be expected to cause him or her to

exercise a higher degree of restraint than the ordinary

citizen under the circumstances.’’ Id., 245. ‘‘Finally . . .

the fighting words exception is not concerned with

creating symmetrical free speech rights by way of establishing a uniform set of words that are constitutionally

proscribed. . . . 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 differen-
tiate between addressees who are more or less likely

to respond violently and speakers who are more or less

likely to elicit such a response.’’ (Citation omitted.)

Id., 249.

We then summarized: ‘‘Accordingly, a proper contextual analysis requires consideration of the actual circumstances, as perceived by both a reasonable speaker

and addressee, to determine whether there is 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 that were objectively apparent

and bear on the question of whether a violent response

was likely.’’ Id., 250. The starting point, however, for

any analysis of a claim involving the fighting words

doctrine must include an examination of the words

themselves and the extent to which they are understood

to be inflammatory or inciting.

With respect to the language at issue in the present

case, the defendant, who is white, uttered the words

‘‘fucking niggers’’ to McCargo, an African-American person, thereby asserting his own perceived racial dominance and superiority over McCargo with the obvious

intent of denigrating and stigmatizing him. When used

in that way, ‘‘[i]t is beyond question that the use of

the word ‘nigger’ is highly offensive and demeaning,

evoking a history of racial violence, brutality, and subordination.’’ McGinest v. GTE Service Corp., 360 F.3d

1103, 1116 (9th Cir. 2004). Not only is the word ‘‘nigger’’

undoubtedly the most hateful and inflammatory racial

slur in the contemporary American lexicon; see id.; but

it is probably the single most offensive word in the

English language. See, e.g., Ayissi-Etoh v. Fannie Mae,

712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (‘‘[The] epithet [‘nigger’] has been labeled, variously, a term that ‘sums up . . . all the bitter years of

insult and struggle in America,’ [L. Hughes, The Big Sea:

An Autobiography (Hill and Wang 2d Ed. 1993) p. 269],

‘pure anathema to African-Americans,’ Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and

‘probably the most offensive word in English.’ [Random

House Webster’s College Dictionary (2d Rev. Ed. 2000)

p. 894]. See generally [A. Haley, Roots: The Saga of an

American Family (Doubleday 1976); [H. Lee, To Kill a

Mockingbird (J. B. Lippincott Co. 1960)]. . . . No other

word in the English language so powerfully or instantly

calls to mind our country’s long and brutal struggle to

overcome racism and discrimination against AfricanAmericans.’’ (Citation omitted.)); R. Kennedy, ‘‘The

David C. Baum Lecture: ‘Nigger!’ as a Problem in the

Law,’’ 2001 U. Ill. L. Rev. 935, 935 (although ‘‘[t]he American language is (and has long been) rife with terms of

ethnic, racial, and national insult: kike, mick, wop, nip,

gook, honkie, wetback, chink, [etc.] . . . ‘nigger is now

probably the most offensive word in English’ ’’ (footnote omitted)); Dictionary.com, available at https://
www.dictionary.com/browse/nigger?s=t (‘‘The term nigger

is now probably the most offensive word in English.

Its degree of offensiveness has increased markedly in

recent years, although it has been used in a derogatory

manner since at least the Revolutionary War.’’).

In fact, because of the racial prejudice and oppression

with which it is forever inextricably linked, the word

‘‘nigger,’’ when used by a white person as an assertion

of the racial inferiority of an African-American person,

‘‘is more than [a] mere offensive utterance . . . . No

word . . . is as odious or loaded with as terrible a

history.’’ (Internal quotation marks omitted.) Daso v.

Grafton School, Inc., 181 F. Supp. 2d 485, 493 (D. Md.

2002); see also In re John M., 201 Ariz. 424, 428, 36

P.3d 772 (App. 2001) (‘‘the term is generally regarded

as virtually taboo because of the legacy of racial hatred

that underlies the history of its use among whites’’

(internal quotation marks omitted)); In re Spivey, 345

N.C. 404, 414, 480 S.E.2d 693 (1997) (‘‘[N]o fact is more

generally known than that a white man who calls a

black man a ‘nigger’ within his hearing will hurt and

anger the black man and often provoke him to confront

the white man and retaliate. The trial court was free

to judicially note this fact.’’). The word being ‘‘one of

insult, abuse and belittlement harking back to slavery

days’’; (internal quotation marks omitted) Taylor v. Metzger, 152 N.J. 490, 510, 706 A.2d 685 (1998); it is uniquely

‘‘expressive of racial hatred and bigotry’’; (internal quotation marks omitted) Swinton v. Potomac Corp., 270

F.3d 794, 817 (9th Cir. 2001), cert. denied, 535 U.S. 1018,

122 S. Ct. 1609, 152 L. Ed. 2d 623 (2002); and ‘‘degrading

and humiliating in the extreme . . . .’’ (Citation omitted; internal quotation marks omitted.) Pryor v. United

Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015). For

all these reasons, the word rightly has been characterized as ‘‘the most provocative, emotionally-charged and

explosive term in the [English] language.’’ (Internal quotation marks omitted.) Lee v. Superior Court, 9 Cal.

App. 4th 510, 513, 11 Cal. Rptr. 2d 763 (1992).

In addition to the defendant’s use of the word ‘‘niggers,’’ other language and conduct by the defendant

further inflamed the situation, rendering it that much

more likely to provoke a violent reaction. First, the

defendant used the profane adjective ‘‘fucking’’—a

word of emphasis meaning wretched, rotten or

accursed10—to intensify the already highly offensive

and demeaning character of the word ‘‘niggers.’’ Like

the term ‘‘nigger,’’ however, the term ‘‘ ‘fucking nigger’

[is] . . . so powerfully offensive that . . . [it] inflicts

cruel injury by its very utterance. It is degrading, it is

humiliating, and it is freighted with a long and shameful

history of humiliation, the ugly effects of which continue to haunt us all.’’ Augis Corp. v. Massachusetts

Commission Against Discrimination, 75 Mass. App.

398, 409, 914 N.E.2d 916, appeal denied, 455 Mass. 1105,

918 N.E.2d 90 (2009). The defendant’s resort to such
language underscored for McCargo how especially

incensed and insulted the defendant was by virtue of his

having been issued the ticket by an African-American

parking official. By adding this additional measure of

contempt and disgust to the epithet, the defendant only

amplified the assaultive nature of the utterance, making

it even more hateful and debasing.

Second, the defendant, having directed the term

‘‘fucking niggers’’ at McCargo upon entering his vehicle

and learning that McCargo had ticketed him, was not

content just to leave and end the confrontation. Instead,

after McCargo had entered his vehicle and was starting

to drive out of the parking lot, the defendant circled

the lot twice, pulled up next to McCargo and, while

looking angrily at him, again uttered the term ‘‘fucking

niggers,’’ this time more loudly than before. The fact

that the defendant repeated this epithet only served to

exacerbate the provocative and hostile nature of the

confrontation. See Landrum v. Sarratt, 352 S.C. 139,

145, 572 S.E.2d 476 (App. 2002) (whether epithets were

uttered repeatedly is factor to be considered in fighting

words determination); see also State v. Szymkiewicz,

237 Conn. 613, 615–16, 623, 678 A.2d 473 (1996) (holding

that certain epithets were fighting words due, in part,

to repeated nature of utterances).

Third, the defendant employed additional, racially

offensive, crude and foreboding language during his

interaction with McCargo. Early on in the defendant’s

confrontation with McCargo, after learning that he had

been issued a ticket, the defendant became angry and

loudly asserted that the parking authority, McCargo’s

employer, was ‘‘fucking unbelievable.’’ Almost immediately thereafter, the defendant injected race into the

encounter, first stating that McCargo had ticketed him

because his car is white and then accusing McCargo of

issuing him the ticket because the defendant himself

is white. Next, as the defendant walked to his vehicle,

he uttered the words, ‘‘remember Ferguson.’’ In light

of the defendant’s other racially charged remarks, his

menacing invocation of the extremely controversial

shooting of a young, unarmed African-American man by

a white police officer had its intended effect: McCargo

understood that the defendant was raising the specter

of the same race based violence that reportedly had

occurred in Ferguson, Missouri. Considering the defendant’s offensive remarks together, as we must; see, e.g.,

State v. Parnoff, supra, 329 Conn. 401 n.5 (fighting

words determination requires consideration of ‘‘the

totality of the attendant circumstances’’); the defendant’s reference to Ferguson significantly escalated the

already fraught and incendiary confrontation.

Finally, in addition to his offensive and intimidating

utterances, certain conduct by the defendant further

manifested his extreme anger and hostility toward

McCargo. As the two men were speaking outside of
their respective vehicles, the defendant stepped toward

McCargo while moving his hands and body in an aggressive and irate manner. Frangione witnessed the defendant’s conduct and testified that, even from about seventy feet away, the hostility of the encounter made her

nervous and upset. Moreover, after entering his car, the

defendant drove through the parking lot twice before

leaving, cutting through empty parking spaces so he

could pass by McCargo and again angrily confront him.

As we observed in Baccala, the fact that the defendant’s

words were accompanied by such aggressive and menacing behavior increased the likelihood of a violent

response. See State v. Baccala, supra, 326 Conn. 241.

As we previously discussed, speech will be deemed

to be unprotected fighting words only if it so ‘‘touch[es]

the raw nerves of [the addressee’s] sense of dignity,

decency, and personality . . . [that it is likely] to trigger an immediate violent reaction’’; (internal quotation

marks omitted) State v. Beckenbach, supra, 1 Conn.

App. 678; a standard that, we have said, is satisfied

only if the speech is so inflammatory that it ‘‘is akin to

dropping a match into a pool of gasoline.’’ (Internal

quotation marks omitted.) State v. Parnoff, supra, 329

Conn. 394. We believe this to be the rare case in which

that demanding standard has been met. Born of violence, the word ‘‘nigger,’’ when uttered with the intent to

personally offend and demean, also engenders violence.

Indeed, such use of the word ‘‘nigger’’ aptly has been

called ‘‘a classic case’’ of speech likely to incite a violent

response. In re Spivey, supra, 345 N.C. 415; see also

State v. Hoshijo ex rel. White, 102 Haw. 307, 322, 76

P.3d 550 (2003) (‘‘The experience of being called ‘nigger’

. . . is like receiving a slap in the face. The injury is

instantaneous.’’ (Internal quotation marks omitted.)). It

therefore is unsurprising that many courts have rejected

first amendment challenges to convictions predicated

on the use of the word. See, e.g., In re John M., supra,

201 Ariz. 428 (‘‘lean[ing] out of a car window and

scream[ing] at an African-American woman, ‘fuck you,

you god damn nigger,’ before the car pulled into a

nearby . . . parking lot’’ was behavior likely to provoke an immediate violent response); State v. Hoshijo

ex rel. White, supra, 321 (speech of student manager

of university basketball team who yelled ‘‘shut up you

[fucking] nigger,’’ ‘‘I’m tired of hearing your shit,’’ and

[s]hut your mouth or I’ll kick your ass’’ to AfricanAmerican spectator constituted unprotected fighting

words); In re J.K.P., Docket No. 108,617, 2013 WL

1010694, *1, *3–5 (Kan. App. March 8, 2013) (calling

boys in group of African-American children ‘‘niggers’’

during altercation with them constituted fighting words

that violated disorderly conduct statute) (decision without published opinion, 296 P.3d 1140 (2013)); In re

Shane EE., 48 App. Div. 3d 946, 946–47, 851 N.Y.S.2d 711

(2008) (threats and racial slurs, including ‘‘ ‘we shoot

niggers like you in the woods,’ ’’ were likely to provoke
immediate violent reaction and therefore constituted

fighting words); In re Spivey, supra, 408, 414 (‘‘loudly

and repeatedly address[ing] a black patron [at a bar]

. . . using the derogatory and abusive racial epithet

‘nigger’ ’’ was conduct that ‘‘squarely falls within the

category of unprotected [fighting words]’’); In re H.K.,

778 N.W.2d 764, 766–67, 770 (N.D. 2010) (following African-American girl into bathroom during dance, calling

her ‘‘nigger’’ and threatening her constituted fighting

words likely to incite breach of peace); see also Bailey

v. State, 334 Ark. 43, 53–54, 972 S.W.2d 239 (1998) (stating that word ‘‘nigger’’ was fighting word in context

used); Lee v. Superior Court, supra, 9 Cal. App. 4th 518

(upholding trial court’s denial of request by AfricanAmerican to change his name from Russell Lawrence

Lee to ‘‘Misteri Nigger’’ and stating that ‘‘men and

women . . . of common intelligence would understand [that] . . . [the word nigger] likely [would] cause

an average addressee to fight’’ (internal quotation marks

omitted)). To whatever extent public discourse in general may have coarsened over time; see, e.g., State v.

Baccala, supra, 326 Conn. 239; it has not eroded to the

point that the racial epithets used in the present case

are any less likely to provoke a violent reaction today

than they were in previous decades.

In support of his contention that the Appellate Court

correctly concluded that his language did not constitute

fighting words, the 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,11 in particular, Resek v. Huntington Beach, 41 Fed. Appx. 57 (9th Cir. 2002), in which

the court, in concluding that the words ‘‘ ‘[t]hat’s fucked

up, those pigs can’t do that’ ’’ were not fighting words;

id., 59; 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.’’ Id.

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 offi-
cial, undoubtedly was aware that some members of the

public might well express frustration and even anger

upon receiving a ticket;12 see, e.g., State v. Liebenguth,

supra, 181 Conn. App. 54; 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.

It is true, of course, that McCargo did not react violently despite the highly inflammatory and inciting

nature of the defendant’s language and conduct. ‘‘[Even]

[t]hough the fighting words standard is an objective

inquiry . . . examining the subjective reaction of an

addressee, although not dispositive, may be probative of

the likelihood of a violent reaction.’’ (Internal quotation

marks omitted.) State v. Parnoff, supra, 329 Conn. 403.

Although McCargo acknowledged that the defendant’s

racial epithets had shocked and appalled him and that

he felt ‘‘very bad’’ and personally insulted by them, he

quite rightly opined that he had ‘‘handled [him]self very

well’’ under the circumstances. We fully agree, of

course, that McCargo handled the incident exceptionally well, but we simply are not persuaded that the

average person would have exercised a similar measure

of self-control and professionalism under the same circumstances. Thus, the fact that McCargo did not react

violently in the face of the defendant’s malicious and

demeaning insults does not alter our conclusion with

respect to the likelihood of a violent reaction to that

language. See, e.g., State v. Hoshijo ex rel. White, supra,

102 Haw. 322 (‘‘[It] is of no consequence . . . [that

violence was not precipitated], as the proper standard

is whether the words were likely to provoke a violent

response, not whether violence occurred. Plainly, there

is no requirement that violence must occur, merely that

there be a likelihood of violence. It is abundantly clear

on the facts of this case that there was a likelihood

of violence.’’ (Emphasis in original.)); Little Falls v.

Witucki, 295 N.W.2d 243, 246 (Minn. 1980) (‘‘The fact

that the addressee and object of the fighting words

exercised responsible and mature forbearance in not

retaliating cannot be relied [on] by [the] defendant to

escape responsibility for his own actions. . . . The

focus is properly on the nature of the words and the

circumstances in which they were spoken rather than

on the actual response. The actual response of the

addressee and object of the words is relevant, but not

determinative, of the issue of whether the utterances

meet the fighting words test.’’).

We also reject the defendant’s contention that his

use of the epithets ‘‘fucking niggers’’ cannot provide

the basis of his conviction in view of the fact that the

defendant and McCargo were in their vehicles on both

occasions when the defendant directed those slurs at

McCargo. Because the rationale underlying the fighting

words doctrine is the state’s interest in preventing the
immediate violent reaction likely to result when highly

offensive language is used to insult and humiliate the

addressee, ‘‘[t]he potential to elicit [such] an immediate

violent response exists only [when] the communication

occurs [face to face] or in close physical proximity.’’

Billings v. Nelson, 374 Mont. 444, 449, 322 P.2d 1039

(2014). This requirement is satisfied in the present case

even though both men were in their vehicles when the

defendant uttered the slurs. When the defendant did so

for the first time, McCargo had pulled his vehicle so

close to the defendant’s vehicle that the defendant

accused McCargo of intentionally blocking him in. On

the second such occasion, the defendant turned directly

toward McCargo as he drove by McCargo’s vehicle and

then repeated the slur loud enough so that McCargo

would be sure to hear it. At this point, the men were

sufficiently close that McCargo could see the angry

expression on the defendant’s face and discern that he

had uttered the slur louder the second time than he

had the first time. At all relevant times, therefore, the

two men were in close proximity to and maintained

eye contact with one another, so that each could see

and hear the other clearly and without difficulty. 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. Unless the use of a vehicle by the

speaker makes it impossible for the addressee to retaliate immediately, courts routinely have held that the

likelihood of an immediate violent reaction is not diminished merely because the speaker or addressee was in

a vehicle when the offending utterances were made.

See, e.g., In re John M., supra, 201 Ariz. 428–29 (passenger in car who yelled ‘‘ ‘fuck you, you god damn nigger’ ’’

before car pulled into parking lot was found to have

used fighting words likely to provoke violent reaction);

Billings v. Nelson, supra, 450 (‘‘The fact that [the defendant and the driver] were in a car does not mean their

speech could not have incited an immediate violent

response from a listener on the street. . . . [The victim] was close enough to recognize the [speakers’] faces

and to hear their words clearly, even though they did

not holler them.’’ (Citation omitted; internal quotation

marks omitted.)); In re S.J.N-K., 647 N.W.2d 707, 709,

711–12 (S.D. 2002) (when passenger in vehicle who

repeatedly uttered ‘‘ ‘fuck you’ ’’ with accompanying

middle finger gesture while driver of vehicle cut diagonally across adjacent parking lot and in front of addressee’s vehicle, evidence established that passenger’s

words and gestures constituted unprotected fighting

words). But cf. Sandul v. Larion, 119 F.3d 1250, 1252,

1255 (6th Cir.) (when passenger in vehicle traveling at

high rate of speed shouted ‘‘ ‘[fuck] you’ ’’ and extended

his middle finger at abortion protesters who were

located considerable distance away, there was no faceto-face contact between passenger and protesters, no
protester was offended or even acknowledged passenger’s behavior, and entire incident was over in matter

of seconds, ‘‘it was inconceivable that [the passenger’s]

fleeting actions and words would provoke the type of

lawless action’’ necessary to satisfy fighting words standard), cert. dismissed, 522 U.S. 979, 118 S. Ct. 439, 139

L. Ed. 2d 377 (1997).

Finally, the defendant claims that the Appellate Court

correctly concluded that the present case is governed

by our analysis and conclusion in State v. Baccala,

supra, 326 Conn. 232, in which we determined that the

vulgar language at issue in that case did not constitute

fighting words. We reject this argument because Baccala is distinguishable from the present case in a number of material respects.13

Before doing so, however, it is necessary to recite

the relevant facts of Baccala and the reasons we

reached the conclusion we did. Those facts, as

explained in our decision in that case, 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 was in charge of the daily

operations at the supermarket . . . . Freeman

informed [Baccala] that the customer service desk

already had closed and that she was unable to access the

computer that processed Western Union transactions.

[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.

‘‘Despite Freeman’s statements to the contrary, [Baccala] 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, [Baccala] arrived at the supermarket, which

was occupied by customers and employees. [She] proceeded toward the customer service desk 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 approached

[Baccala], a forty year old woman who 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

[Baccala] denied that she had called, Freeman recognized her voice. After Freeman informed [Baccala], as

she had during the telephone call, that the customer

service desk was closed, [Baccala] 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. [Other]

employees . . . were standing nearby as this exchange

took place.

‘‘[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. Despite

[Baccala’s] crude and angry expressions . . . Freeman

remained professional. She simply responded, ‘[h]ave

a good night,’ which prompted [Baccala] to leave the

supermarket.’’ Id., 235–36. Following a jury trial, Baccala was convicted of breach of the peace in the second

degree in violation of § 53a-181 (a) (5). Id., 233–34, 236.

On appeal to this court, we agreed with Baccala that her

conviction was incompatible with the first amendment.

See id., 234–35.

We began our analysis of Baccala’s claim with the

observation that the language she used was both

extremely offensive and intentionally demeaning. Id.,

251. 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. Id., 254. 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. Id., 252.

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. Id., 253. 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. Id., 253. 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. See

id., 253–54.

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. Id.,

253. 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.

For all the foregoing reasons, we conclude that the

language the defendant used to demean, intimidate and

anger McCargo were fighting words likely to provoke

a violent response from a reasonable person under the

circumstances. Because the first amendment does not

shield such speech from prosecution, the state was free
to use it to obtain the defendant’s conviction of breach

of the peace in the second degree, which, as we have

explained, is supported by the evidence. Because the

Appellate Court reached a contrary conclusion, that

portion of its judgment reversing the defendant’s conviction on that charge cannot stand.

The judgment of the Appellate Court is reversed with

respect to the defendant’s conviction of breach of the

peace in the second degree only and the case is

remanded to that court with direction to affirm the

judgment of conviction on that charge; the judgment

of the Appellate Court is affirmed in all other respects.

In this opinion the other justices concurred.

* This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Robinson and Justices Palmer, McDonald,

D’Auria, Mullins, Kahn and Ecker. Although Justice McDonald was not

present when the case was argued before the court, he has read the briefs

and appendices, and listened to a recording of oral argument prior to participating in this decision.

The listing of justices reflects their seniority status on this court as of

the date of oral argument.

** August 27, 2020, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is

guilty of breach of the peace in the second degree when, with intent to

cause inconvenience, annoyance or alarm, or recklessly creating a risk

thereof, such person . . . (5) in a public place, uses abusive or obscene

language or makes an obscene gesture . . . .’’

2 The first amendment to the United States constitution provides in relevant part: ‘‘Congress shall make no law . . . abridging the freedom of

speech . . . .’’

The first amendment prohibition against laws abridging the freedom of

speech is made applicable to the states through the due process clause

of the fourteenth amendment to the United States constitution. E.g., 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1, 116 S. Ct. 1495, 134

L. Ed. 2d 711 (1996)

3 The trial court also found the defendant guilty of tampering with a

witness in violation of General Statutes § 53a-151. See footnote 4 of this

opinion. On the charge of breach of the peace in the second degree, the

court sentenced the defendant to a term of imprisonment of six months,

execution suspended, followed by two years of probation with several conditions, plus a $1000 fine; on the charge of tampering with a witness, the court

sentenced the defendant to a consecutive term of imprisonment of four

years, execution suspended, followed by four years of probation with the

same conditions and a $3000 fine. The defendant’s conviction of tampering

with a witness, which thereafter was upheld by the Appellate Court; see

State v. Liebenguth, 181 Conn. App. 37, 58, 186 A.3d 39 (2018); is not the

subject of this appeal. Unless otherwise noted, all references hereinafter to

the defendant’s conviction are to his conviction of breach of the peace in

the second degree.

4 The evidence adduced at trial also established that, on March 6, 2015,

while his criminal case was pending, the defendant sent an e-mail to

McCargo’s supervisor at the New Canaan Parking Department indicating

that he would press felony charges against McCargo and cause McCargo to

lose his job if he appeared in court at the defendant’s criminal trial and

testified against him. See State v. Liebenguth, supra, 181 Conn. App. 42.

The e-mail further stated that the defendant would not take such action

against McCargo if he did not appear in court to testify against the defendant.

Id. As the Appellate Court explained, ‘‘[t]he language of the defendant’s

e-mail clearly indicates that the defendant intended to induce McCargo not

to appear in court, insofar as it stated: ‘It goes without mention that if your

meter maid [McCargo] does not show up in court this case will be over and

everyone can go peacefully on their own way, no harm, no foul, no fallout’

and ‘[p]erhaps the judge will remand him to custody right then and there

from his witness chair? Obviously, not if he is not there.’ ’’ Id., 57–58. This

evidence provided the basis for the trial court’s guilty finding with respect
to the charge of tampering with a witness in violation of General Statutes

§ 53a-151. See footnote 3 of this opinion.

5 We note that the Appellate Court read this statement by the trial court

as reflecting a finding that the defendant took an aggressive stance, was

walking toward McCargo, and moving his hands in an aggressive manner

at the very same time he uttered the words ‘‘fucking niggers.’’ (Internal

quotation marks omitted.) State v. Liebenguth, supra, 181 Conn. App. 49.

As the Appellate Court also observed; see id.; such a finding would be

inconsistent with the trial testimony, which clearly established that the

defendant was seated in his vehicle both times he directed that epithet at

McCargo. In contrast to the Appellate Court, however, we do not understand

the trial court to have found that the conduct referred to occurred simultaneously with the offensive utterances. Rather, we read the decision’s reference

to that conduct as consistent with the record; see, e.g., Lauer v. Zoning

Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991) (reviewing court reads

arguably ambiguous trial court record to support, rather than to undermine,

its judgment); that is, as reflecting a finding by the trial court only that the

conduct was relevant to the broader context in which the defendant’s epithets were uttered, which it certainly was. In any event, we, like the Appellate

Court, resolve the issue on appeal predicated on the testimony adduced at

trial, which is not disputed for purposes of this appeal.

6 As we discuss more fully hereinafter, in Baccala, we concluded that the

conviction of the defendant in that case—also for breach of the peace in

the second degree in violation of § 53a-181 (a) (5)—had to be reversed,

despite the vile and personally demeaning nature of the gender based epithets on which that conviction was predicated, in light of our determination

that the defendant’s speech was entitled to first amendment protection

because it was not likely to evoke a violent response from a reasonable

person under the circumstances presented. See State v. Baccala, supra, 326

Conn. 251–56.

7 Specifically, we certified the following issue: ‘‘Did the Appellate Court

properly conclude that the defendant’s conviction for breach of the peace

in the second degree had to be reversed in light of the holding in [Baccala]

. . . ?’’ (Citation omitted.) State v. Liebenguth, supra, 330 Conn. 901.

8 The defendant makes no claim that, in the event we disagree with the

Appellate Court that his speech was protected by the first amendment to

the United States constitution, his conviction nevertheless was barred by

the free speech provisions of article first, §§ 4 and 5, of the Connecticut

constitution. We therefore have no occasion to consider whether the fighting

words exception to the protection afforded speech under the first amendment also constitutes an exception to the free speech guarantees of the

state constitution and, if so, whether its scope is coextensive with that of

the exception recognized under the first amendment.

9

In this regard, we observed in Baccala that, ‘‘[i]n this day and age, the

notion that any set of words are so provocative that they can reasonably

be expected to lead an average listener to immediately respond with physical

violence is highly problematic.’’ (Emphasis omitted; internal quotation marks

omitted.) State v. Baccala, supra, 326 Conn. 239. Although the United States

Supreme Court has not upheld a conviction under the fighting words doctrine

since Chaplinsky; e.g., C. Calvert, ‘‘First Amendment Envelope Pushers:

Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg,

Trump, & Spencer,’’ 51 Conn. L. Rev. 117, 149 (2019); and, despite scholarly

criticism of the doctrine; see, e.g., W. Reilly, Note, ‘‘Fighting the Fighting

Words Standard: A Call for Its Destruction,’’ 52 Rutgers L. Rev. 947, 947–49

(2000); Note, ‘‘The Demise of the Chaplinsky Fighting Words Doctrine: An

Argument for Its Interment,’’ 106 Harv. L. Rev. 1129, 1140–46 (1993); the

court has never disavowed the doctrine and, from time to time, has referred

to it, albeit in dicta, as one of the few historic exceptions to the first

amendment’s prohibition against content based restrictions on speech. See,

e.g., Brown v. Entertainment Merchants Assn., 564 U.S. 786, 791, 131 S.

Ct. 2729, 180 L. Ed. 2d 708 (2011) (‘‘From 1791 to the present . . . the [f]irst

[a]mendment has permitted restrictions [on] the content of speech in a

few limited areas, and has never include[d] a freedom to disregard these

traditional limitations. . . . These limited areas . . . such as . . . fighting

words . . . represent well-defined and narrowly limited classes of speech,

the prevention and punishment of which have never been thought to raise

any [c]onstitutional problem . . . .’’ (Citations omitted; internal quotation

marks omitted.)); Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155

L. Ed. 2d 535 (2003) (‘‘[A] [s]tate may punish those words [that] by their

very utterance inflict injury or tend to incite an immediate breach of the
peace. . . . [C]onsequently . . . fighting words—those personally abusive

epithets [that], when addressed to the ordinary citizen, are, as a matter of

common knowledge, inherently likely to provoke a violent reaction—are

generally proscribable under the [f]irst [a]mendment.’’ (Citations omitted;

internal quotation marks omitted.)). In any event, the defendant makes no

claim that the fighting words doctrine is a dead letter for federal constitutional purposes; he claims, rather, that the words he used were not fighting

words and, consequently, that his conviction based on those words is prohibited by the first amendment. In addition, as we previously noted; see footnote

8 of this opinion; the defendant does not raise a claim under the state

constitution.

10 New Dictionary of American Slang (R. Chapman ed., 1986) p. 151.

11 The defendant relies on the following cases in which the court determined that certain words directed at a police officer were not fighting words:

Kennedy v. Villa Hills, 635 F.3d 210, 215–16 (6th Cir. 2011) (calling police

officer ‘‘ ‘son of a bitch’ ’’ and ‘‘a ‘fat slob’ ’’); Johnson v. Campbell, 332 F.3d

199, 203, 215 (3d Cir. 2003) (calling police officer who was conducting stop

‘‘ ‘son of a bitch’ ’’); Duran v. Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990)

(shouting profanities and making obscene gestures at police officer); Barboza v. D’Agata, 151 F. Supp. 3d 363, 367, 371–72 (S.D.N.Y. 2015) (‘‘[f]uck

your shitty town bitches’’ written on payment form accompanying speeding

ticket); State v. Nelson, 38 Conn. Supp. 349, 351 n.1, 355, 448 A.2d 214 (App.

Sess. 1982) (calling police officer ‘‘ ‘fucking asshole, a fucking pig’ ’’).

12 We note, however, that there is nothing in the record to indicate that

McCargo received any special training on how to deal with persons who

become unusually irate or insulting upon being issued a parking ticket.

13 We note that the defendant further contends that the trial court’s requirement that he undergo a cultural diversity course prescribed and approved

by his probation officer evidences that the trial court’s guilty finding ‘‘constitutes a unique and unprecedented attempt to criminalize incivility or racist

attitudes.’’ We disagree. The probationary condition falls squarely within

the court’s considerable sentencing discretion, and, indeed, it is obviously

well-founded in light of the defendant’s conceded language and conduct.