Fighting Words and Free Speech

September, 2020



A recent criminal case decided by the Connecticut Supreme Court on August 27, 2020, explains that certain speech is not protected under the First Amendment.  State v. Liebenguth.

In this case, the defendant was ticketed by a parking enforcement official for parking illegally in a metered parking lot in New Canaan.  The defendant was Caucasian, the parking enforcement official was African American.

After being ticketed, the defendant’s behavior included the following:

  • Referring to the parking authority as “fucking unbelievable;”
  • Telling the officer that he was given the ticket because he was white;
  • Telling the officer, as he was walking away, “remember Ferguson,” referencing the highly publicized shooting of an African American by a white police officer;
  • Acting aggressive towards the officer by flailing his arms and being very loud;
  • Driving past the officer as he was leaving and said “fucking niggers.”

After a trial, the trial court convicted the defendant of breach of peace in the second degree in violation of Connecticut Statute 53a-181(a)(5).  On appeal, the Appellate Court agreed with the defendant that his speech, “fucking niggers,” was constitutionally protected speech and because his conviction was predicated on that speech, the conviction could not stand.

The Supreme Court reversed and let the conviction stand.

The issue for the Court was whether the multiple utterances of the words “ fucking niggers” directed towards the African-American parking enforcement official during a hostile confrontation following receipt of the parking ticket were “fighting words” subject to criminal sanctions and not protected speech under the First Amendment.

The Court cited the U.S. Supreme Court of Cohen v. California, 403 U.S. 15 (1971), which held that a few categories of speech may be prosecuted as “fighting words:” “those personally abusive epithets that when addressed to the ordinary citizen, inherently likely to provoke violent reaction.”    “…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 a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed”, citing, Chaplinsky v. New Hampshire, 315 U.S.568 (1942).

Explaining that there are no per se fighting words likely to provoke a violent response, since social norms change and for example, calling someone a “fascist” today would not raise an eyebrow whereas in the 40’s it might provoke a violent response, the Court reversed the Appellate Court.

Relying upon the context or circumstances under which the words were uttered, the Court found  that the parking enforcement official’s lack of violent response did not give the defendant’s words protected status.


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