There is a war raging between the right of free speech and the imagined right not to be offended. While offensive speech is often unpleasant, unnecessary, and immoral, it is still protected by the exact wording and the spirit of the First Amendment to the U.S. Constitution – and even more so by many state constitutions. Faithful to both the First Amendment and the Connecticut Constitution, the Connecticut Supreme Court recently overturned Nina Baccala’s 2013 conviction for breaching the peace after she screamed and swore at a customer service agent in person. In deciding that Ms. Baccula’s words were not a breach of the peace, the court won another battle for liberty – but the war is far from over.
On the night of Sept. 30, 2013, Nina Baccala called the Stop & Shop supermarket in Vernon, Connecticut to verify her belief that she could use the Western Union service as long as customer service was open. The manager on duty at the time, assistant store manager Tara Freeman, informed Ms. Baccala that the Western Union desk was closed and that she was unable to access the money. Enraged, Baccala insulted the manager with alarming vulgarity over the phone, then went to the store and continued her tirade in person. When Ms. Freeman responded with “have a good night,” the belligerent customer left. Ms. Baccala was later arrested and charged with two counts of threatening in the second degree and one count of breach of the peace in the second degree. A jury later found her guilty of breach of peace and sentenced her to twenty-five days in jail.
The exact use of profanity will not appear in this article, though Courthouse News does report it explicitly. Ms. Baccala used, as Ms. Freeman put it, “pretty much every swear word you can think of.” Suffice it to say the forty-year-old woman’s behavior was not befitting a mature adult. However, she used only words, and while she did gesture with her cane, she did not make any actual threats or move to beat Ms. Freeman with the cane. Ms. Baccala appealed her conviction, and the highest court of her state reversed the lower court’s decision – but the 4-3 ruling was a close call.
Justice Andrew McDonald wrote in the decision:
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. We do not intend to suggest that words directed at a store manager will never constitute fighting words. Rather, we simply hold that under these circumstances the defendant’s vulgar insults would not be likely to provoke violent retaliation. Because the defendant’s speech does not fall within the narrow category of unprotected fighting words, her conviction of breach of the peace in the second degree on the basis of pure speech constitutes a violation of the first amendment to the United States Constitution.
Justice Dennis Eveleigh and two other justices dissented and cited the case State v. Szymkiewicz – in which the defendant profanely insulted and threatened a store detective – as a relevant precedent to this case, as the court ruled that the defendant’s outburst did constitute fighting words. However, the difference the dissenting justices ignored is that Ms. Baccala didn’t make any actual threats. Additionally, they took issue with the court’s decision that an average person would not have been inspired to violence by Ms. Baccala’s words. Regardless of whether anyone else would have responded violently, Ms. Freeman didn’t. Apparently, Ms. Baccala’s words were not inspiring enough fighting words to provoke Ms. Freeman.
An interesting point common to both the majority decision and the dissension is that had the defendant’s diatribe constituted fighting words, then her speech would not have been protected. The court relied on prior decisions – both at the state and federal level – to determine whether or not an average person would have responded with violence. While this method is apparently accepted by the courts, it is neither supported by either the state or federal constitution nor is it upheld by the principle of personal accountability.
The U.S. Constitution’s First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Despite the seemingly obvious contradiction, several court decisions have effectively determined that even free speech can, in fact, be abridged. However, regardless of any such interpretations of the First Amendment, the state constitution of Connecticut is both broader and clearer still:
SEC. 4. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
SEC. 5. No law shall ever be passed to curtail or restrain the liberty of speech or of the press.
SEC. 4. Protects the right of every citizen to “speak his sentiments on all subjects.” While the second clause of SEC. 4. Holds each citizen accountable for the abuse of that liberty, SEC. 5. Forbids any laws that “curtail or restrain” that right in any way. Taken together, they must be read as an unrestrained freedom of speech with a caution that – even without laws prohibiting it – the abuse of this liberty might have consequences.
Both that sentiment and the cases of law the dissenting justices refer to contradict the principle of self-accountability. Everyone has the right to defend themselves against violence – and a strong case can be made to include threats of violence. However, no murder has yet been legally ruled self-defense because the victim angered the killer. No matter of verbal insult can change the fact that we are all responsible for our actions.