Customer’s Vulgar Diatribe Protected by First Amendment

(CN) – Overturning the jail sentence given to a woman who called a grocery store worker a “fat ugly bitch,” the Connecticut Supreme Court found no “fighting words” in the outburst.

“Fundamentally, we are called upon to determine whether the defendant’s speech is protected under the First Amendment to the United States Constitution or, rather, constitutes criminal conduct that a civilized and orderly society may punish through incarceration,” Justice Andrew McDonald wrote for the 4-3 court on July 11. “The distinction has profound consequences in our constitutional republic.”

Police arrested Nina Baccala on Sept. 30, 2013, while the 40-year-old was trying to pick up a money transfer at the Stop & Shop supermarket in Vernon, Connecticut.

Before heading to the store that night, Baccala had called ahead, asking if the store could keep its Western Union money-transfer desk open until she arrived.

Assistant store manager Tara Freeman testified that she was met with “pretty much every swear word you can think of” when she informed Baccala that the Western Union desk had already closed.

Baccala, who walks with a cane, arrived at the store a few minutes later. Freeman said she repeated what she had said over the phone about the store being closed, and that Baccala then proceeded to call her a “fat ugly bitch” and a “cunt.”

“Fuck you,” Baccala had said, “you’re not a manager.”

The customer left the store when Freeman would not engage with her. “Have a good night” was all that the assistant manager had said in reply, according to the ruling.

After a jury found Baccala guilty of breaching the peace, she was sentenced to 25 days in jail.

The Connecticut Supreme Court acknowledged Tuesday that Baccala’s language was “extremely offensive,” but found it unlikely that the outburst would have provoked violence.

“An average store manager would know as she approached the defendant that, if the defendant became abusive, the manager could demand that the defendant leave the premises, threaten to have her arrested for trespassing if she failed to comply, and make good on that threat if the defendant still refused to leave,” the 19-page opinion states. “With such lawful self-help tools at her disposal and the expectations attendant to her position, it does not appear reasonably likely that Freeman was at risk of losing control over the confrontation.”

And indeed, Freeman did not respond with violence to Baccala’s diatribe, or even with any angry words of her own.

“In sum, the natural reaction of an average person in Freeman’s position who is confronted with a customer’s profane outburst, unaccompanied by any threats, would not be to strike her,” McDonald wrote for the majority.

The ruling emphasizes that courts must determine on a case-by-case basis “all of the circumstances relevant to whether a reasonable person in the position of the actual addressee would have been likely to respond with violence.”

“Unlike George Carlin’s classic 1972 comedic monologue, ‘Seven Words You Can Never Say on Television,’ it is well settled that there are no per se fighting words,” McDonald said.

The Supreme Court directed the trial court to enter a judgment of acquittal on remand.

Justice Dennis Eveleigh dissented, joined by two other justices.

“Fighting words are so pernicious that they tend to provoke an ordinary person to respond viscerally to scathing insults in a manner that is invariably irrational – that is, with violence,” Eveleigh wrote. “For this reason, a post hoc analysis of the circumstances of the addressee will not accurately reflect whether an ordinary person would reflexively respond with some degree of violence to a defendant’s abusive language.”

Eveleigh said the court should not have substituted its own evaluation of how an average store manager would respond to offensive language, especially when the jury came to the opposite conclusion.

“This is a new test for fighting words directed at the position of the person to whom the words are directed,” Eveleigh wrote. “I would follow the case law of the United States Supreme Court and require that the test be restricted to that of the average person.”

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