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*********************************************** 
STATE v. LIEBENGUTH—SECOND CONCURRENCE

ECKER, J., concurring. I join the majority opinion

because we are bound by United States Supreme Court

precedent to apply the fighting words doctrine as currently formulated, and, in my view, the majority reaches

the correct result applying that doctrine to the facts

of the present case. I write separately lest my silence

otherwise be misunderstood as an endorsement of this

deeply flawed doctrine.1

I also wish to draw attention

to the looming question that comes into increasingly

sharp focus with every decision issued by this court on

the topic. That question is whether there may be a more

sensible first amendment framework that would better

serve to justify the outcome reached today in a manner

that fully honors our government’s commitment to freedom of speech without, in the process, sacrificing our

ability to regulate a narrow category of malicious hate

speech—which, for present purposes, may be defined

as speech communicated publicly to an addressee, in

a face-to-face encounter, using words or images that

demean the addressee on the basis of his or her race,

color, national origin, ethnicity, religion, gender, sexual

orientation, disability, or like trait, under circumstances

indicating that the speaker intends thereby to cause the

addressee severe psychic pain. I do not know when the

United States Supreme Court will acknowledge that the

current doctrine is untenable or whether it will consider

replacing it with a reformulated doctrine focused on

the government’s interest in regulating hate speech.

Nor do I know whether such a hate speech doctrine

ultimately would pass muster under the first amendment. Sooner or later, however, I believe that it will

become necessary to either shift doctrinal paradigms

or admit failure because it has become evident that the

existing fighting words doctrine does not provide a

sound or viable means to draw constitutional lines in

this area.

I

I agree wholeheartedly with my colleagues that the

words and sentiments expressed by the defendant,

David B. Liebenguth, were vile, repugnant and morally

reprehensible. He selected his words for their cruelty

and used them as a weapon to inflict psychic wounds as

painful, or more so, than physical ones. The defendant

crossed a particular line that should never be crossed

by anyone in America and then crossed that line again

by engaging in after-the-fact conduct indicating a complete lack of contrition. See footnote 4 of the majority

opinion. The views expressed in this concurring opinion

should not be construed in any way to excuse, defend,

or otherwise condone the defendant’s words or accompanying conduct.

This brings me directly to the point. I believe that
we need not scratch too deeply beneath the surface to

see that the defendant is being punished criminally for

the content of his speech. It is the reprehensible content

of the speech that propels our desire to prohibit it.

Indeed, one very particular meaning intended by the

defendant’s language is behind this prosecution. The

criminality of the defendant’s speech does not inhere

in his use of the word ‘‘nigger’’ itself because that word

can mean very different things depending on the identity, race, affiliation, and cultural milieu of the speaker

and the addressee. See R. Kennedy, ‘‘The David C. Baum

Lecture: ‘Nigger!’ as a Problem in the Law,’’ 2001 U. Ill.

L. Rev. 935, 937.2 The criminality of the defendant’s

speech derives from his use of the word as a term

of oppression, contempt, and debasement rather than

affection or brotherhood.

Therein lies the difficulty under the first amendment,

because the quintessential teaching of the constitutional

prohibition against any law abridging the freedom of

speech is that the government cannot proscribe speech

on the basis of content. ‘‘[A]bove all else,’’ Justice Thurgood Marshall famously observed, ‘‘the [f]irst [a]mendment means that government has no power to restrict

expression because of its message, its ideas, its subject

matter, or its content.’’ Police Dept. v. Mosley, 408 U.S.

92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972); accord

Brown v. Entertainment Merchants Assn., 564 U.S.

786, 790–91, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011);

Ashcroft v. American Civil Liberties Union, 535 U.S.

564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002); see

Reed v. Gilbert, 576 U.S. 155, 163, 135 S. Ct. 2218, 192

L. Ed. 2d 236 (2015) (‘‘[c]ontent-based laws—those that

target speech based on its communicative content—

are presumptively unconstitutional and may be justified

only if the government proves that they are narrowly

tailored to serve compelling state interests’’); R. A. V.

v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L.

Ed. 2d 305 (1992) (‘‘[t]he [f]irst [a]mendment generally

prevents [the] government from proscribing speech

. . . or even expressive conduct . . . because of disapproval of the ideas expressed’’ (citations omitted));

see also footnote 8 of this opinion. Speech that offends,

provokes, or disrupts cannot be censored by the government merely because it roils calm waters or contravenes

our collective sense of civilized discourse. Although the

content of such speech at times may be extremely difficult to tolerate, and its value may be impossible to discern, we must never forget that ‘‘a function of free

speech under our system of government is to invite

dispute. It may indeed best serve its high purpose when

it induces a condition of unrest, creates dissatisfaction

with conditions as they are, or even stirs people to

anger. Speech is often provocative and challenging. It

may strike at prejudices and preconceptions and have

profound unsettling effects as it presses for acceptance

of an idea. That is why freedom of speech, though not
absolute . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a

clear and present danger of a serious substantive evil

that rises far above public inconvenience, annoyance,

or unrest. . . . There is no room under our [c]onstitution for a more restrictive view. For the alternative

would lead to standardization of ideas either by legislatures, courts, or dominant political or community

groups.’’ (Citations omitted.) Terminiello v. Chicago,

337 U.S. 1, 4–5, 69 S. Ct. 894, 93 L. Ed. 1131 (1949).

The fighting words doctrine is among the very few

exceptions to this rule. ‘‘[T]he [f]irst [a]mendment has

‘permitted restrictions upon the content of speech in a

few limited areas’ ’’ consisting of ‘‘ ‘historic and traditional categories long familiar to the bar’ . . . including obscenity . . . defamation . . . fraud . . . incitement . . . and speech integral to criminal conduct

. . . .’’ (Citations omitted.) United States v. Stevens,

559 U.S. 460, 468, 130 S. Ct. 1577, 176 L. Ed. 2d 435

(2010); see also R. A. V. v. St. Paul, supra, 505 U.S. 383,

386 (listing exceptions, including fighting words). The

fighting words doctrine, in modified form, appears to

remain good law despite widespread criticism and a

distinctly underwhelming track record in its place of

origin, the United States Supreme Court.3 See State v.

Parnoff, 329 Conn. 386, 411, 186 A.3d 640 (2018) (Kahn,

J., concurring in the judgment) (‘‘[t]he continuing vitality of the fighting words exception is dubious and the

successful invocation of that exception is so rare that

it is practically extinct’’).

I understand that we must adhere to the fighting

words doctrine until the United States Supreme Court

says otherwise. But, although the majority opinion does

an admirable job fashioning a silk purse out of this

particular sow’s ear, I believe that we are better off in

the end expressing our concerns openly and displaying

a more determined preference for avoiding further

entanglement with this untenable doctrine.4

In my view,

this court’s own engagement with the fighting words

doctrine to date has resulted in a series of decisions

embedding us more deeply in the doctrinal quicksand

each time we undertake the futile task of drawing constitutional distinctions between one person’s lyric and

another’s vulgarity.5

I fear that the doctrine we have

embraced disserves us more than we acknowledge by

inducing us to believe, or act as if we believe, that we

are able to discern a constitutional line distinguishing

one angry person screaming a race-based epithet at a

municipal parking enforcement officer from another

angry person screaming a gender-based epithet at a

store manager. See State v. Baccala, 326 Conn. 232,

235–36, 256, 163 A.3d 1 (calling assistant manager of

grocery store ‘‘a ‘fat ugly bitch’ and a ‘cunt’ ’’ did not

constitute fighting words and, therefore, warranted constitutional protection under first amendment), cert.

denied, U.S. , 138 S. Ct. 510, 199 L. Ed. 2d
408 (2017).

II

The profound and intractable problems inherent in

the fighting words doctrine become evident the moment

we examine the legal standard that our court uses to

determine whether a defendant’s speech falls within its

scope. The majority correctly describes the analysis.

Fighting words is speech that is ‘‘likely to provoke a

violent response under the circumstances in which [the

words] were uttered . . . .’’ Id., 234. The doctrine purports not to be concerned with the content of the speech

per se but, rather, the ‘‘likelihood of violent retaliation.’’

Id., 240. Thus, unlike the situation described by George

Carlin in his classic comedic monologue about government censorship of obscene language, ‘‘Seven Words

You Can Never Say on Television,’’6

there is no predetermined list of proscribed fighting words or phrases; context is everything. As the majority aptly observes, ‘‘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.’’ In determining

whether the speech in any particular circumstance is

constitutionally protected, the person performing the

constitutional line drawing must consider ‘‘a host of

factors,’’ including not only the words themselves, but

‘‘the manner and circumstances in which the words

were spoken’’ and ‘‘those personal attributes of the

speaker and addressee that are reasonably apparent

. . . .’’ State v. Baccala, supra, 326 Conn. 240–41; see

id., 242–43 (‘‘[c]ourts have . . . considered the age,

gender, race, and status of the speaker’’ and ‘‘also have

taken into account the addressee’s age, gender, and

race’’). This intensely contextualized and fact specific

inquiry strives to remain ‘‘objective’’ in nature. Id., 247.

For this reason, the issue is not how the actual

addressee in fact responds to the speech, but the likely

response of the average person in the addressee’s

shoes. Id.; see Chaplinsky v. New Hampshire, 315 U.S.

568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) (‘‘the test

[for determining which words are fighting words] is

what men of common intelligence would understand

would be words likely to cause an average addressee

to fight’’ (internal quotation marks omitted)).

As this description illustrates, the constitutional justification for the fighting words doctrine, as it operates

today, does not rest on the state’s interest in protecting

the addressee from the emotional and psychic harm

caused by words ‘‘which by their very utterance inflict

injury . . . .’’7 Chaplinsky v. New Hampshire, supra,

315 U.S. 572. Instead, the current fighting words doctrine purports to regulate speech on the basis of its

incitement effect, i.e., the likelihood of inciting the

addressee to immediate violence against the speaker.
The ascendancy of the incitement rationale as the sole

constitutionally legitimate justification for the fighting

words doctrine avoids the appearance, discomfiting to

some, that the state is censoring speech due solely to

the emotional impact that the content of that speech

has on the addressee.8 The allure of the incitement

analysis, in other words, lies in its insistence that it is

entirely unconcerned with the content of the speech

under review and regulates solely on the basis of the

‘‘nonspeech’’ element of the communication. See R. A. V.

v. St. Paul, supra, 505 U.S. 386.

Serious problems arise, however, when we use the

fighting words exception to regulate offensive speech

under the rubric of the incitement rationale. Fighting

words is an unusual subcategory of incitement

speech—the speaker and listener are adversaries rather

than coconspirators, and the speaker ordinarily is not

advocating violence but, rather, speaking words in a

manner likely to stimulate the listener’s anger to the

boiling point.9 The fighting words doctrine permits the

government to prohibit speech that the government

deems likely to incite a physical attack by the addressee

on the speaker himself. Put another way, this category

of speech loses its constitutional protection because it

is deemed likely to ‘‘cause’’ another person to punch

the speaker in the nose (or worse)—a distinctly counterintuitive justification for withdrawing constitutional

protection from the speaker. See Feiner v. New York,

340 U.S. 315, 327 n.9, 71 S. Ct. 303, 95 L. Ed. 295 (1951)

(Black, J., dissenting) (‘‘[T]he threat of one person to

assault a speaker does not justify suppression of the

speech. There are obvious available alternative methods of preserving public order. One of these is to arrest

the person who threatens an assault.’’); B. Caine, ‘‘The

Trouble with ‘Fighting Words’: Chaplinsky v. New

Hampshire Is a Threat to First Amendment Values and

Should Be Overruled,’’ 88 Marq. L. Rev. 441, 507 (2004)

(‘‘[p]unishing the speaker for the violence committed

against the speaker is totally at odds with [first amendment principles]’’); R. Kennedy, supra, 2001 U. Ill. L.

Rev. 942 (‘‘Rather than insisting that the target of the

speech control himself, the doctrine tells the offensive

speaker to shut up. This is odd and objectionable.’’).

I wish to focus on two of the most fundamental problems that infect the doctrine as it has been applied

in Connecticut. First, as Justice Kahn observes in her

concurring opinion, one of the foremost flaws inherent

in the fighting words doctrine is that its application

turns on the adjudicator’s assessment of the addressee’s

physical ability and psychological or emotional proclivity to respond with violence to the speaker’s insulting

words. The majority’s description of the required legal

analysis frankly acknowledges its focus on the speaker’s and the addressee’s respective age, race, gender,

physical condition, and similar characteristics. The doctrine thus confers or withdraws constitutional protec-
tion depending on the demographic characteristics of

the relevant individuals; vicious and vile words spoken

by ‘‘a child, a frail elderly person, or a seriously disabled

person’’ may be protected under the first amendment

because ‘‘social conventions . . . [or] special legal protections . . . could temper the likelihood of a violent

response . . . .’’ State v. Baccala, supra, 326 Conn. 242.

And most important, as the majority, quoting State v.

Baccala, supra, 249, acknowledges, ‘‘ ‘an unfortunate

but necessary’ ’’ part of the constitutional analysis is

an assessment of the addressee’s physical abilities and

aggressive tendencies to determine whether the

addressee is ‘‘ ‘likely to respond violently . . . .’ ’’

‘‘Unfortunate’’ is a vast understatement. The fighting

words doctrine invites—even requires—stereotyping

on the basis of age, gender, race, and whatever other

demographic characteristics the adjudicator explicitly

or implicitly relies on to decide whether a person is

likely to respond to offensive language with immediate

violence. In my view, a bright red light should flash

when our first amendment doctrine leads us to conclude, for example, that an outrageous slur directed at

a physically disabled elderly woman is constitutionally

protected but the identical words addressed to a physically fit man walking down the sidewalk will subject

the speaker to criminal prosecution. It is no wonder

that the fighting words doctrine is considered by many

critics to represent a ‘‘hopeless anachronism that mimics the macho code of barroom brawls.’’ K. Sullivan,

‘‘The First Amendment Wars,’’ New Republic, September 28, 1992, p. 40; id. (observing that fighting words

doctrine ‘‘give[s] more license to insult Mother Teresa

than Sean Penn just because she is not likely to throw

a punch’’); see A. Carr, ‘‘Anger, Gender, Race, and the

Limits of Free Speech Protection,’’ 31 Hastings Women’s L.J. 211, 227 (2020) (describing Chaplinsky as

reflecting ‘‘a gendered . . . perspective’’ enshrining ‘‘a

‘hypermasculine’ exemption from presumed ‘gentlemanly’ expectations of conduct among men’’); S. Gard,

‘‘Fighting Words as Free Speech,’’ 58 Wash. U. L.Q.

531, 536 (1980) (opining that fighting words doctrine

represents ‘‘a quaint remnant of an earlier morality that

has no place in a democratic society’’); K. Greenawalt,

‘‘Insults and Epithets: Are They Protected Speech?,’’ 42

Rutgers L. Rev. 287, 293 (1990) (‘‘Many speakers who

want to humiliate and wound would also welcome a

fight. But in many of the cruelest instances in which

abusive words are used, no fight is contemplated: white

adults shout epithets at black children walking to an

integrated school; strong men insult much smaller

women.’’); R. Kennedy, supra, 2001 U. Ill. L. Rev. 943

(fighting words doctrine ‘‘gives more leeway to insult

a nun than a prizefighter because she is less likely to

retaliate’’); W. Reilly, ‘‘Fighting the Fighting Words Standard: A Call for Its Destruction,’’ 52 Rutgers L. Rev.

947, 956 (2000) (observing that fighting words doctrine
permits ‘‘speech to be [regulated] . . . when directed

at someone who would react violently to a verbal

assault, but [prohibits regulation] . . . when directed

at someone with a more pacific bent’’).10

The doctrine in no way avoids this analytical abyss

by focusing its inquiry on the personal characteristics

of the ‘‘average’’ addressee rather than the actual listener. To the contrary, styling the test in faux objective

garb only makes things worse because there is no empirical basis for such an inquiry; no such average person

exists, no metric for assessment exists, and, to the best

of my knowledge, nothing that we would consider valid

social science is available to assist the decision maker.

The first amendment becomes a Rorschach blot onto

which the adjudicating authority (and, before it reaches

the adjudicator, the arresting officer and state prosecutor) projects his or her own stereotypes, preconceptions, biases and fantasies about race, ethnicity, sexual

orientation, gender, religion, and other ‘‘identity’’ characteristics of the addressee to decide whether a person

with those demographics probably would react with

immediate violence.11 This is especially the case when

it comes to the predominant twenty-first century brand

of insults, epithets, and slurs, which so often target the

group identity of the addressee. The fighting words

doctrine in its current form confers or withdraws first

amendment protection on the basis of nothing more

substantial than our own stereotypes and biases regarding those very demographic features. This is ‘‘I know

it when I see it’’ run amuck.12

The sharp contrast between this court’s holdings in

Baccala and the present case demonstrate the point.

The majority does its best to distinguish Baccala on

some basis other than gender and race, but the stark

reality of differential treatment remains.13 In my view,

the various distinctions drawn between that case and

the present case, though unquestionably reflecting the

good-faith assessment of the subscribing justices, reinforce rather than remove valid concerns regarding the

arbitrary, subjective, and gendered nature of the fighting words doctrine. An observer would be excused for

thinking that these outcomes reflect, and may tend to

perpetuate, nothing more substantial than our deeply

ingrained stereotypes regarding the traditional gender

traits of the ‘‘average’’ woman, at least the ‘‘average’’

white woman. See footnote 11 of this opinion.14

The potential for discriminatory enforcement, or at

the very least the perception that a ‘‘realistic possibility

that official suppression of ideas is afoot,’’ is anathema

to our most fundamental first amendment values. R. A. V.

v. St. Paul, supra, 505 U.S. 390. In the hands of even the

most responsible police officers, prosecutors, judges

and juries, this legal standard is sure to produce incongruous and inexplicable results, even if all participants—including the speaker and the addressee—share
a relatively homogenous set of cultural norms and

expectations. Under the auspices of less enlightened

administrating authorities, the doctrine, in my view,

‘‘contains an obvious invitation to discriminatory

enforcement . . . .’’ (Internal quotation marks omitted.) Houston v. Hill, 482 U.S. 451, 465 n.15, 107 S.

Ct. 2502, 96 L. Ed. 2d 398 (1987). The wide degree of

subjectivity necessitated by the legal standard ‘‘furnishes a convenient tool for ‘harsh and discriminatory

enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure’ ’’;

Papachristou v. Jacksonville, 405 U.S. 156, 170, 92 S.

Ct. 839, 31 L. Ed. 2d 110 (1972), quoting Thornhill v.

Alabama, 310 U.S. 88, 97–98, 60 S. Ct. 736, 84 L. Ed.

1093 (1940); and ‘‘confers on [the] police a virtually

unrestrained power to arrest and charge persons with

a violation.’’ Lewis v. New Orleans, 415 U.S. 130, 135,

94 S. Ct. 970, 39 L. Ed. 2d 214 (1974) (Powell, J., concurring in the result).

This brings me to the second fundamental problem

with the fighting words doctrine, which is that such an

intensely contextualized, fact specific, and inherently

subjective analysis in the area of free speech creates

major constitutional concerns under due process

vagueness principles. The underlying vice addressed by

the void for vagueness doctrine is basic to the rule

of law: ‘‘As generally stated, the [void for vagueness]

doctrine requires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement. . . . Although the doctrine

focuses both on actual notice to citizens and arbitrary

enforcement, [the court has] recognized recently that

the more important aspect of the vagueness doctrine

‘is not actual notice, but the other principal element of

the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’

. . . Where the legislature fails to provide such minimal

guidelines, a criminal statute may permit ‘a standardless

sweep [that] allows policemen, prosecutors, and juries

to pursue their personal predilections.’ ’’ (Citations

omitted.) Kolender v. Lawson, 461 U.S. 352, 357–58, 103

S. Ct. 1855, 75 L. Ed. 2d 903 (1983); see also Grayned

v. Rockford, 408 U.S. 104, 108–109, 92 S. Ct. 2294, 33 L.

Ed. 2d 222 (1972) (‘‘It is a basic principle of due process

that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several

important values. First, because we assume that man

is free to steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary intelligence

a reasonable opportunity to know what is prohibited,

so that he may act accordingly. Vague laws may trap

the innocent by not providing fair warning. Second,

if arbitrary and discriminatory enforcement is to be

prevented, laws must provide explicit standards for
those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory application. Third, but related, [when] a vague statute abut[s] upon sensitive areas of basic [f]irst [a]mendment freedoms, it operates to inhibit the exercise of

[those] freedoms. Uncertain meanings inevitably lead

citizens to steer far wider of the unlawful zone . . .

than if the boundaries of the forbidden areas were

clearly marked.’’ (Footnotes omitted; internal quotation

marks omitted.)).

The defendant in the present case has not challenged

General Statutes § 53a-181 (a) (5) on vagueness grounds,

and, accordingly, it is not necessary or appropriate at

this time to decide whether the statute is saved by this

court’s narrowing construction, which limits its coverage to fighting words as we have defined that term in

the prescribed analysis.15 In my opinion, our recent decisions, including the decision issued today, have not

made that future task any easier.

To summarize, the facts of the present case obscure

the mischief inherent in the fighting words doctrine, as

applied by this court. I feel confident that every judge

in Connecticut would agree without reservation that

the particular words spoken by the defendant occupy

a singular category of offensive content as a result of

our country’s history. They are unique in their brutality.

I therefore agree fully with the view expressed by Judge

Devlin that ‘‘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’’ must fall within the scope

of the fighting words doctrine. State v. Liebenguth, 181

Conn. App. 37, 68, 186 A.3d 39 (2018) (Devlin, J., concurring in part and dissenting in part). But, for the reasons

set forth in this concurring opinion, I also believe that

the fighting words doctrine does not provide a sensible

way to determine the circumstances under which the

government may prosecute the utterance of such vile

and repugnant speech.

III

This court’s own recent experience applying the fighting words doctrine, as well as the many similar cases

adjudicated by state courts around the country, powerfully illustrates why the United States Supreme Court

should consider fashioning a more defensible and

administrable first amendment framework for deciding

when the government may criminalize the kind of hate

speech uttered by the defendant in the present case.

To best serve its purpose, the reformulated doctrine

should directly confront the fundamental constitutional

issue underlying many of these cases, which is whether

and under what circumstances the first amendment

permits the government to protect its citizenry from
the kind of psychic and emotional harm that results

when a speaker with malicious intent subjects another

person to outrageously degrading slurs in a personal,

face-to-face encounter. I cannot predict the outcome

of such a doctrinal reexamination, but, in my view, it

would benefit us all if the Supreme Court undertakes

the challenge before too long. Our current doctrine,

operating by indirection and proxy through a hypothetical, stereotype-driven assessment of the likelihood that

the words will incite violence, is as unworthy as it

is unworkable, and every new case decided under its

purview creates additional cause for concern.

In the meantime, I agree with the majority that, under

our current first amendment case law, if anything is

fighting words, then the words spoken by this defendant

under these factual circumstances fit the bill. I concur

in the majority opinion for this reason.

1 As will become clear, my concerns share a great deal in common with

those expressed by Justice Kahn in her incisive concurring opinion.

2 Professor Randall L. Kennedy, the author of the acclaimed 2002 book

entitled ‘‘Nigger: The Strange Career of a Troublesome Word,’’ writes with

great learning, sensitivity and sophistication on the subject. He explains the

‘‘remarkably protean’’ nature of the word: ‘‘It can mean many things. . . .

A weapon of racist oppression, ‘nigger’ can also be a weapon of antiracist

resistance as in Dick Gregory’s autobiography entitled Nigger, or H. Rap

Brown’s polemic Die Nigger Die! An expression of deadening contempt, use

of the N-word can also be an assertion of enlivened wit as in Richard

Pryor’s trenchant album of stand up comedy That Nigger’s Crazy. A term

of belittlement, ‘nigger’ can also be a term of respect as in ‘James Brown

is sho nuff nigger.’ . . . A term of hostility, nigger can also be a term of

endearment as in ‘this is my main nigger’—i.e., my best friend. . . . It might

just be, as [the journalist Jarvis Deberry] writes, ‘the most versatile and most

widely applied intensifier in the English language.’ ’’ (Footnotes omitted.)

R. Kennedy, supra, 2001 U. Ill. L. Rev. 937; see also A. Perdue & G. Parks,

‘‘The Nth Decree: Examining Intraracial Use of the N-Word in Employment

Discrimination Cases,’’ 64 DePaul L. Rev. 65, 66 (2014) (‘‘[w]hile some members of the black community . . . publicly embrace [the] use of the N-word

by and among blacks as a term of endearment, others . . . still view it

exclusively as a tool of racial oppression’’). The indomitable Charles Barkley

has revealed the politically subversive undercurrent that accompanies some

uses of the word: ‘‘I use the N-word. I’m going to continue to use the Nword . . . . [W]hat I do with my black friends is not up to white America

. . . .’’ (Internal quotation marks omitted.) A. Perdue & G. Parks, supra, 65–

66.

3 Questions arise about the continued vitality of the fighting words doctrine

because the United States Supreme Court has not upheld a single criminal

conviction under the doctrine since Chaplinsky was decided almost eighty

years ago. Note, ‘‘The Demise of the Chaplinsky Fighting Words Doctrine:

An Argument for Its Interment,’’ 106 Harv. L. Rev. 1129, 1129 (1993). There

is no doubt that the doctrine’s scope has been narrowed by a series of

decisions including, but not by any means limited to, Cohen v. California,

403 U.S. 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (limiting fighting words

to personally abusive epithets spoken in direct and personal confrontation),

Lewis v. New Orleans, 415 U.S. 130, 135, 94 S. Ct. 970, 39 L. Ed. 2d 214

(1974) (Powell, J., concurring in the result) (indicating that first amendment

protection is broader when addressee is police officer, who ‘‘may reasonably

be expected to exercise a higher degree of restraint than the average citizen,

and thus be less likely to respond belligerently to fighting words’’ (internal

quotation marks omitted)), and R. A. V. v. St. Paul, supra, 505 U.S. 386,

391 (recognizing that fighting words are not devoid of expressive value,

describing fighting words doctrine as regulation of ‘‘ ‘nonspeech’ element

of communication,’’ and holding that statute prohibiting particular fighting

words was unconstitutional because it discriminated on basis of viewpoint

of speaker). See, e.g., W. Nevin, ‘‘ ‘Fighting Slurs’: Contemporary Fighting

Words and the Question of Criminally Punishable Racial Epithets,’’ 14 First

Amendment L. Rev. 127, 133–38 (2015) (reviewing post-Chaplinsky cases
limiting fighting words doctrine); T. Place, ‘‘Offensive Speech and the Pennsylvania Disorderly Conduct Statute,’’ 12 Temp. Pol. & Civ. Rts. L. Rev. 47,

51–59 (2002) (same); R. Smolla, ‘‘Words ‘Which By Their Very Utterance

Inflict Injury’: The Evolving Treatment of Inherently Dangerous Speech in

Free Speech Law and Theory,’’ 36 Pepp. L. Rev. 317, 350 (2009) (noting that

‘‘the entire mainstream body of modern [f]irst [a]mendment law . . . has

dramatically tightened the rules of immediacy, intent, and likelihood of harm

required to justify restrictions on speech on the theory the speech will lead

to violence’’ and suggesting that ‘‘the ‘inflict[s] injury’ prong of Chaplinksy’’

is no longer operative and what remains is ‘‘that part of Chaplinksy linked

to genuine ‘fighting words’ and the maintenance of physical (as opposed to

moral) order’’). I nonetheless agree with the majority and Justice Kahn that

the fighting words exception to the first amendment has not been overruled

and remains binding on this court.

4

I do not break any new ground in pointing out these defects. See, e.g.,

B. Caine, ‘‘The Trouble With ‘Fighting Words’: Chaplinsky v. New Hampshire

Is a Threat to First Amendment Values and Should Be Overruled,’’ 88 Marq.

L. Rev. 441, 444–45 n.6 (2004) (‘‘While I agree with both scholars and others

that Chaplinsky ought to be overruled, I must note that the [United States]

Supreme Court has paid little attention to their plea. . . . [Chaplinsky] is

so deeply flawed that it cannot stand, and . . . [it] is an intolerable blot

on free speech jurisprudence.’’); S. Gard, ‘‘Fighting Words as Free Speech,’’

58 Wash. U. L.Q. 531, 536 (1980) (‘‘the fighting words doctrine is nothing

more than a quaint remnant of an earlier morality that has no place in a

democratic society dedicated to the principle of free expression’’); R. O’Neil,

‘‘Hate Speech, Fighting Words, and Beyond—Why American Law Is Unique,’’

76 Alb. L. Rev. 467, 471–72 (2012–2013) (‘‘[The] dismissive . . . view of

expression [in Chaplinsky] that was both unquestionably offensive and

provocative now seems not only archaic but also wholly illogical. . . . Seventy years later, Chaplinsky remains a persistent source of constitutional

confusion. It might have been mercifully overruled long since, but that never

happened.’’ (Footnotes omitted.)); W. Reilly, ‘‘Fighting the Fighting Words

Standard: A Call for Its Destruction,’’ 52 Rutgers L. Rev. 947, 948 (2000)

(‘‘The [fighting words doctrine] is discriminatory because its application

depends on assumptions about how likely a listener is to respond violently

to speech. This approach invites judges or juries to determine whether

speech is protected by the [f]irst [a]mendment based on their own prejudices

about the listener.’’); M. Mannheimer, Note, ‘‘The Fighting Words Doctrine,’’

93 Colum. L. Rev. 1527, 1558, 1568–71 (1993) (arguing for modification of

fighting words doctrine to add scienter requirement); Note, ‘‘The Demise

of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment,’’

106 Harv. L. Rev. 1129, 1141 (1993) (‘‘Overruling Chaplinsky would eliminate

a doctrine that accommodates the undesirable ‘male’ tendency to come to

blows. More [important], eliminating the ‘fighting words’ doctrine would

eradicate a tool that governmental officials may use and have used to harass

minority groups and to suppress dissident speech.’’).

5 See Cohen v. California, 403 U.S. 15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284

(1971) (recognizing that, under fighting words doctrine, ‘‘it is . . . often

true that one man’s vulgarity is another’s lyric’’).

6 G. Carlin, Class Clown (Little David Records 1972).

7 Chaplinsky defined fighting words as ‘‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’’

Chaplinsky v. New Hampshire, supra, 315 U.S. 572. The two parts of this

definition have come to be known as the ‘‘inflicts injury’’ prong and the

‘‘breach of peace’’ or ‘‘incitement’’ prong. It is debatable whether the ‘‘inflicts

injury’’ prong was ever anything more than dictum. See Note, ‘‘The Demise

of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment,’’

106 Harv. L. Rev. 1129, 1129 (1993) (noting that ‘‘the prong of Chaplinsky

that exempted words ‘which by their very utterance inflict injury’—dictum

in that opinion—has never been used by the [c]ourt to uphold a speaker’s

conviction’’). In any event, it is generally acknowledged that the ‘‘inflicts

injury’’ prong no longer serves to justify the fighting words exception. See,

e.g., Purtell v. Mason, 527 F.3d 615, 624 (7th Cir.) (‘‘[a]lthough the ‘inflictinjury’ alternative in Chaplinsky’s definition of fighting words has never

been expressly overruled, the [United States] Supreme Court has never held

that the government may, consistent with the [f]irst [a]mendment, regulate

or punish speech that causes emotional injury but does not have a tendency

to provoke an immediate breach of the peace’’ (emphasis omitted)), cert.

denied, 555 U.S. 945, 129 S. Ct. 411, 172 L. Ed. 2d 288 (2008); Boyle v.

Evanchick, United States District Court, Docket No. 19-3270 (GAM) (E.D.
Pa. March 19, 2020) (noting ‘‘[t]he [United States] Supreme Court’s retreat

from the broad standard announced in Chaplinsky’’ and abandonment of

the ‘‘inflicts injury’’ prong); UWM Post, Inc. v. Board of Regents, 774 F.

Supp. 1163, 1170 (E.D. Wis. 1991) (‘‘[s]ince Chaplinsky, the [United States]

Supreme Court has . . . limited the fighting words definition so that it now

. . . includes [only the ‘incitement’ prong]’’); People in the Interest of R.C.,

411 P.3d 1105, 1108 (Colo. App. 2016) (‘‘soon after Chaplinsky, the [United

States] Supreme Court either dropped the ‘inflict[s] injury’ category of fighting words altogether or recited the full definition of fighting words without

further reference to any distinction between merely hurtful speech and

speech that tends to provoke an immediate breach of the peace’’), cert.

denied, Colorado Supreme Court, Docket No. 16SC987 (November 20, 2017);

State v. Drahota, 280 Neb. 627, 634, 788 N.W.2d 796 (2010) (‘‘the [United

States] Supreme Court has largely abandoned Chaplinsky’s ‘inflict[s] injury’

standard’’); E. Chemerinsky, Constitutional Law (5th Ed. 2017) § 9 (C) (2)

(a), p. 1387 (‘‘the [c]ourt has narrowed the scope of the fighting words

doctrine by ruling that it applies only to speech directed at another person

that is likely to produce a violent response’’); M. Rutzick, ‘‘Offensive Language and the Evolution of First Amendment Protection,’’ 9 Harv. C.R.-C.L.

L. Rev. 1, 22–27 (1974) (tracing United States Supreme Court’s rejection of

‘‘inflicts injury’’ prong in decades since Chaplinsky); M. Mannheimer, Note,

‘‘The Fighting Words Doctrine,’’ 93 Colum. L. Rev. 1527, 1538–49 (1993)

(tracing United States Supreme Court’s rejection of ‘‘inflicts injury’’ prong

in decades since Chaplinsky); Note, supra, 106 Harv. L. Rev. 1137 (‘‘this

prong almost certainly has been de facto overruled’’).

8 First amendment jurisprudence traditionally recognizes that the government may not censor speech merely because the content or message is

insulting or offensive due to its emotional impact on the audience. See, e.g.,

Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)

(‘‘[i]f 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’’); Cohen v.

California, 403 U.S. 15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (‘‘Surely

the [s]tate has no right to cleanse public debate to the point where it is

grammatically palatable to the most squeamish among us. . . . [I]t is . . .

often true that one man’s vulgarity is another’s lyric.’’); cf. R. Kennedy,

supra, 2001 U. Ill. L. Rev. 943 (‘‘[t]he [fighting words] doctrine is in tension

with the dominant (and good) rule in criminal law that prevents ‘mere words

standing alone . . . no matter how insulting, offensive, and abusive’ from

constituting the predicate for a provocation excuse’’), quoting United States

v. Alexander, 471 F.2d 923, 941 n.48 (D.C. Cir.), cert. denied sub nom.

Murdock v. United States, 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494 (1972).

9 The incitement analysis has its origins in cases in which a speaker faces

criminal prosecution or civil liability for advocating unlawful conduct. See,

e.g., Brandenburg v. Ohio, 395 U.S. 444, 444–45, 89 S. Ct. 1827, 23 L. Ed.

2d 430 (1969) (speech allegedly advocating hate group to engage in racial

violence); Schenck v. United States, 249 U.S. 47, 48–50, 39 S. Ct. 247, 63 L.

Ed. 470 (1919) (speech advocating reader to resist military conscription);

cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927, 102 S. Ct. 3409,

73 L. Ed. 2d 1215 (1982) (applying Brandenburg test to speech allegedly

inciting group to cause property damage). Under the Brandenburg ‘‘incitement’’ analysis, speech loses its constitutional protection only if it is (1)

‘‘directed to inciting or producing imminent lawless action,’’ and (2) ‘‘likely

to incite or produce such action.’’ Brandenburg v. Ohio, supra, 447. The

fighting words doctrine, unlike the Brandenburg incitement analysis, contains no intent requirement. See C. Calvert, ‘‘First Amendment Envelope

Pushers: Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg, Trump, & Spencer,’’ 51 Conn. L. Rev. 117, 131–32 (2019) (‘‘[i]n contrast

to Brandenburg, the [c]ourt’s test for another unprotected category of

speech related to violence—fighting words—lacks an intent element’’); M.

Mannheimer, Note, ‘‘The Fighting Words Doctrine,’’ 93 Colum. L. Rev. 1527,

1557 (1993) (observing that fighting words doctrine does not contain ‘‘a true

incitement requirement because [it] fail[s] to require a critical component

of the Brandenburg incitement standard—the intent of the speaker to cause

violence’’).

10 Professor Kathleen Sullivan is correct to label the doctrine gendered

and anachronistic, although its historical roots trace back to the nineteenth

century gentlemanly ritual of the duel rather than the timeless workingclass custom of barroom brawling. Ironically, as Professor Jeffrey Rosen

has observed, ‘‘[t]he [social] foundation of the [fighting words] doctrine had
collapsed long before the [United States] Supreme Court enshrined it as

marginal constitutional law in 1942 [in Chaplinksy].’’ J. Rosen, ‘‘Fighting

Words,’’ Legal Affairs, May/June, 2002, p. 18. ‘‘Legal bans on fighting words,’’

explains Rosen, ‘‘grew out of the [nineteenth century] efforts to discourage

the practice of dueling, and they evolved from a [class-based] culture of

honor and hierarchy’’ that we would no longer recognize in contemporary

America. Id., p. 16. The concept of fighting words emanates from a ‘‘highly

ritualized code of honor [that] led American gentlemen in the [nineteenth]

century to fight duels, to prove their social status and worthiness for leadership. . . . [D]ueling depended on a strong consensus about the social pecking order. If you were insulted by a social equal, you redeemed your honor

by challenging him to a duel. If you wanted to insult a social inferior, you

displayed your contempt by bludgeoning him with a cane. In a culture based

on honor, there was broad agreement about what kinds of insults could be

avenged only by demanding satisfaction in a duel.’’ Id. States attempted—

apparently with little success—to put an end to this cultural artifact by

enacting laws criminalizing the utterance of words considered so insulting

as to necessitate a violent response. Id.; see also K. Greenberg, Honor and

Slavery (Princeton University Press 1996) c. 1, pp. 14–15 (discussing history

of antidueling laws); J. Freeman, Affairs of Honor (Yale University Press

2001) c. 4, pp. 159–198 (discussing social meaning and national importance

of dueling in America during early nineteenth century). Professor Freeman’s

discussion in particular demonstrates that participation in these ‘‘affairs of

honor’’ was not considered optional. See J. Freeman, supra, pp. 159–164

(discussing Alexander Hamilton’s tormented desire to avoid proceeding with

duel demanded by Aaron Burr and Hamilton’s reluctant conclusion that duel

was impossible to avoid). ‘‘The laws of honor,’’ writes Professor Freeman,

‘‘indicated when insults could not be ignored . . . .’’ Id., p. 171. Our country’s

dominant social code no longer compels us to defend our honor with violence; to the contrary, it is considered honorable to respond to insults by

walking away, as the parking enforcement officer, Michael McCargo, did in

the present case.

11 There is a substantial body of social science literature on implicit bias,

which is generally defined as subconscious ‘‘stereotypes and prejudices that

can negatively and nonconsciously affect behavior . . . .’’ L. Richardson,

‘‘Arrest Efficiency and the Fourth Amendment,’’ 95 Minn. L. Rev. 2035, 2039

(2011). One such implicit bias ‘‘consists of the cultural stereotype of blacks,

especially young men, as violent, hostile, aggressive, and dangerous.’’ Id.;

see also A. Rutbeck-Goldman & L. Richardson, ‘‘Race and Objective Reasonableness in Use of Force Cases: An Introduction to Some Relevant Social

Science,’’ 8 Ala. C.R. & C.L. L. Rev. 145, 149 (2017) (‘‘[s]ocial science research

over the last few decades suggests that we unconsciously associate [b]lack

men with danger, criminality, and violence’’). Implicit biases ‘‘linking [b]lacks

with aggression have been shown to cause people to judge the behavior of

a [b]lack person as more aggressive than the identical behavior of a [w]hite

person,’’ leading to higher rates of police violence and incarceration. K.

Spencer et al., ‘‘Implicit Bias and Policing,’’ 10 Soc. & Personality Psychol.

Compass 50, 54 (2016); see also L. Richardson, supra, 2039 (‘‘As a result of

implicit biases, an officer might evaluate behaviors engaged in by individuals

who appear black as suspicious even as identical behavior by those who

appear white would go unnoticed. In other words, even when officers are

not intentionally engaged in conscious racial profiling, implicit biases can

lead to a lower threshold for finding identical behavior suspicious when

engaged in by blacks than by whites.’’). Implicit biases are not limited to

race; they also perpetuate subconscious gender stereotypes. Many individuals view women as ‘‘meek or submissive’’; J. Cuevas & T. Jacobi, ‘‘The

Hidden Psychology of Constitutional Criminal Procedure,’’ 37 Cardozo L.

Rev. 2161, 2181 (2016); and, thus, not prone to engage in violent behavior.

This is not true, however, for women of color. Black women are often

viewed as ‘‘hot-tempered, combative, and uncooperative,’’ leading to higher

rates of police violence and incarceration. F. Freeman, Note, ‘‘Do I Look

Like I Have an Attitude? How Stereotypes of Black Women on Television

Adversely Impact Black Female Defendants Through the Implicit Bias of

Jurors,’’ 11 Drexel L. Rev. 651, 655 (2019); see also N. Amuchie, ‘‘ ‘The

Forgotten Victims’ How Racialized Gender Stereotypes Lead to Police Violence Against Black Women and Girls: Incorporating an Analysis of Police

Violence into Feminist Jurisprudence and Community Activism,’’ 14 Seattle

J. Soc. Just. 617, 646 (2016) (‘‘[b]lack women and girls are viewed as [nonfeminine] or [unladylike], which leads to high levels of violence against them

and excessive policing’’). America, of course, has no monopoly on group
stereotypes of this nature. See, e.g., P. Lerner et al., ‘‘Introduction: German

Jews, Gender, and History,’’ in Jewish Masculinities (B. Baader et al. eds.,

2012) p. 1 (‘‘[t]he idea that Jewish men differ from non-Jewish men by

being delicate, meek, or effeminate in body and character runs deep in

European history’’).

12 See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 12 L. Ed.

2d 793 (1964) (Stewart, J., concurring) (confessing his inability to define

pornography in words but explaining that ‘‘I know it when I see it’’). Justice

Potter Stewart’s candor is admirable and refreshing, but it is also troubling

to those who believe that ‘‘the exercise of judicial power is not legitimate

if it is based . . . on subjective will rather than objective analysis, on emotion [or instinct] rather than reasoned reflection.’’ P. Gewirtz, Essay, ‘‘On ‘I

Know It When I See It,’ ’’ 105 Yale L.J. 1023, 1025 (1996). Some commentators,

including Professor Gewirtz, consider such criticism unfair on the ground

that it ‘‘mischaracterizes and understates the role that emotion and nonrational elements properly play in forming judicial [decision-making and opinion writing].’’ Id. I am not unsympathetic to Professor Gewirtz’ general point,

but my heart and mind are in agreement that ‘‘I know it when I see it’’

jurisprudence has no place in first amendment law.

13 To cite one illustrative example of what I consider the unconvincing

arguments offered by the majority to explain why the offensive speech was

protected in Baccala but not here, the majority compares the nature of the

addressee’s job as an assistant store manager in Baccala to that of Michael

McCargo, the parking enforcement officer in the present case, and opines

that the store employee’s supervisory status made her more likely to ‘‘[model]

appropriate, responsive behavior, aimed at de-escalating the situation

. . . .’’ (Internal quotation marks omitted.), quoting State v. Baccala, supra,

326 Conn. 253. Unlike the majority, I would place far greater weight on the

fact that the addressee in this case was a government employee, not a private

individual, as in Baccala. This factor, though not dispositive, traditionally

and commonsensically weighs strongly in favor of according the speaker

greater first amendment protection. See, e.g., Houston v. Hill, 482 U.S. 451,

462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (‘‘a properly trained officer may

reasonably be expected to exercise a higher degree of restraint than the

average citizen, and thus be less likely to respond belligerently to fighting

words’’ (internal quotation marks omitted)), quoting Lewis v. New Orleans,

415 U.S. 130, 135, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974) (Powell, J., concurring

in the result); United States v. Poocha, 259 F.3d 1077, 1081 (9th Cir. 2001)

(‘‘the area of speech unprotected as fighting words is at its narrowest, if

indeed it exists at all, with respect to criminal prosecution for speech

directed at public officials’’); Abudiab v. San Francisco, 833 F. Supp. 2d

1168, 1175 (N.D. Cal. 2011) (parking control officer, ‘‘as a public official

whose duties often incite the vitriol of the public, and who consequently is

authorized to use force against members of the public (deployment of pepper

spray in self-defense) . . . should be held to a higher standard of conduct

in terms of his reaction to mere criticisms, profane and otherwise, of the

manner in which he conducts his official duties’’), aff’d sub nom. Abudiab

v. Georgopoulos, 586 Fed. Appx. 685 (9th Cir. 2013); In re Nickolas S., 226

Ariz. 182, 188, 245 P.3d 446 (2011) (‘‘a student’s profane and insulting outburst’’ was not fighting words because ‘‘Arizona teachers exemplify a higher

level of professionalism’’); State v. Baccala, supra, 326 Conn. 244 (‘‘a majority

of courts, including ours, hold police officers to a higher standard than

ordinary citizens when determining the likelihood of a violent response by

the addressee’’). To be sure, McCargo was not a police officer, but he was

employed as an agent of the government to walk the streets imposing

monetary fines on members of the public for municipal parking violations.

Parking enforcement officers, as the bearers of bad news, are in a very

unpopular line of work and can expect to be subjected to varying levels of

verbal abuse. See, e.g., T. Barrett, The Dangerous Life of a Parking Cop,

The Tyee (April 2, 2004), available at https://thetyee.ca/Life/2004/04/02/

The_Dangerous_Life_of_a_Parking_Cop/ (last visited August 26, 2020)

(reviewing film about ‘‘the life of a parking enforcement officer,’’ who

explained that ‘‘physical assaults are rare, but verbal abuse is something

that happens almost every day’’); J. McKinley, ‘‘San Franciscans Hurl Their

Rage at Parking Patrol,’’ N.Y. Times, January 6, 2007, p. A12 (abuse on

parking control officers is ‘‘common, often frightening and, occasionally,

humiliating’’).

14 The particular facts of the present case, and our consensus regarding

the correct result here, ought not obscure the reality that demographic

stereotypes and implicit biases relating to race will continue to plague this
doctrine. Conscious or unconscious racial stereotypes help to explain why

some speech is deemed likely to incite violence, whereas other speech is

not. See, e.g., A. Carr, supra, 31 Hastings Women’s L.J. 229–30 (‘‘For nonwhite

Americans, racist stereotypes and diverging governmental and cultural

norms about expressing public anger compound the complexities of [speech

regulation]. Moreover, the state’s responses to different individuals and

groups’ public displays of anger—as in protest actions—vary on the basis of

race. For example, the recent cases of mass protests in Ferguson [Missouri,

in 2014] and the Women’s Marches (2017 onward) displayed enormous

disparities: police responses to the [majority black] protesters in Ferguson

were militarized and violent compared to the anodyne permissiveness of

authorities toward the visibly white Women’s March organizers and attendees. . . . Those [state individual] contexts include, among others, racist

patterns of policing and incarceration, as well as profoundly asymmetric

rates of arrest and prosecution. These considerations form a daunting backdrop for nonwhite (and non-male) listeners . . . in ways not contemplated

by the [c]ourt in Chaplinsky and later cases. Black and brown Americans

have myriad deeply rooted claims for condemning state authorities, for

angrily castigating them in terms far harsher than Chaplinsky’s censured

utterance, but they also face far greater chances of harm if they choose to

do so. Censure limits free speech rights; speaking out against racist systems

often deprives speakers of color their very lives.’’ (Footnotes omitted.)).

15 I doubt that anyone would dispute that the actual statutory language

promulgated by our legislature, which criminalizes the use of ‘‘abusive or

obscene language’’ in a public place ‘‘with intent to cause inconvenience,

annoyance or alarm’’; General Statutes § 53a-181 (a) (5); plainly cannot pass

muster under the void for vagueness doctrine without the aid of a workable

narrowing construction. See Gooding v. Wilson, 405 U.S. 518, 523, 92 S. Ct.

1103, 31 L. Ed. 2d 408 (1972) (striking down Georgia’s breach of peace

statute in absence of such limiting construction while observing that ‘‘[its]

decisions since Chaplinsky have continued to recognize state power constitutionally to punish ‘fighting’ words under carefully drawn statutes not also

susceptible of application to protected expression’’); see also Plummer v.

Columbus, 414 U.S. 2, 2–3, 94 S. Ct. 17, 38 L. Ed. 2d 3 (1973) (striking down

municipal ordinance providing that ‘‘[n]o person shall abuse another by

using menacing, insulting, slanderous, or profane language’’ (internal quotation marks omitted)).