STATE v. NINA BACCALA, SC 19717

Judicial District of Tolland

 Criminal; Free Speech; Whether Defendant’s Abusive Language Directed at Store Employee Protected by Connecticut Constitution; Whether Defendant’s Speech Constituted Unprotected “Fighting Words.” The defendant was convicted of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (5), which prohibits the use of “abusive or obscene language” in a public place when the language is intended to cause “inconvenience, annoyance or alarm.”  The charge against the defendant stemmed from an incident in which the defendant used harsh expletives to insult and berate the manager of a Stop & Shop grocery store.  The defendant appeals, claiming that her conviction cannot stand because the state constitution affords greater free speech protection than its federal counterpart and because her “name calling” of the store manager was protected by the free speech provisions of the Connecticut constitution.  The defendant acknowledges that the first amendment of the federal constitution does not protect “fighting words”—words that by their very utterance inflict injury or tend to incite an imminent physical confrontation—but argues that “fighting words” under the Connecticut constitution should be construed as limited to speech that directly challenges another person to engage in a physical altercation.  The defendant contends that her “mere name calling” was protected under the Connecticut constitution because it did not directly challenge the store manager to engage in a physical altercation.  The defendant also argues that she is entitled to a new trial because the trial court’s instruction to the jury on the fighting words exception to the free speech doctrine embodied in the first amendment to the federal constitution was improper in that it did not adequately convey that, to constitute unprotected fighting words, a defendant’s words must have a tendency to provoke immediate or imminent violence.