Use of abusive or obscene language is not disorderly conduct unless likely to cause an imminent violent response in the average listener.

State v. Tracy, 2015 VT 111  (filed 8/28/2015)

ROBINSON, J. Defendant David Tracy was convicted of disorderly conduct following a heated exchange with his daughter’s basketball coach. The trial court, in a bench trial, concluded that defendant’s language was not protected by the First Amendment to the United States Constitution because it constituted “fighting words,” and found defendant guilty of an “abusive or obscene language” charge under 13 V.S.A. § 1026(a)(3) (“A person is guilty of disorderly conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly creates a risk thereof . . . in a public place, uses abusive or obscene language”)

 On appeal, defendant argues that the speech for which he was convicted is constitutionally protected. After saying that “he just wanted to know why [the coach] wouldn’t put his daughter in a game,” defendant used profanity repeating, “Why can’t you put her in a game for one f’ing minute?” He called the coach “a bitch,” and said, “You are not the fucking NBA,” and “This is fucking unbelievable.”  We agree that the speech for which defendant was convicted is beyond the reach of the abusive-language prong of the disorderly-conduct statute, and reverse the conviction.

This Court has construed § 1026(a)(3) as reaching only “fighting words,” a category of speech that is not synonymous with threats or tumult. “Fighting words” must be understood in light of the US. Supreme Court’s evolving case law concerning the Constitution’s commitment to protecting even vile, offensive, hurtful, and exceptionally insulting speech. There are no “per se” fighting words. The use of foul language and vulgar insults is insufficient. A likelihood of arousing animosity or inflaming anger is insufficient. The likelihood that the listener will feel an impulse to respond angrily or even forcefully is insufficient. Courts must assess all the relevant circumstances to determine whether the words were likely to result in an imminent violent response.

The provision only reaches speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline. Defendant’s expression here does not fall in this exceedingly narrow category of statements that are reasonably expected to cause the average listener to respond with violence.

Reversed.