State of Minnesota, Respondent, vs. John Brown Bridges, Appellant.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C4-99-256

State of Minnesota,
Respondent,

vs.

John Brown Bridges,
Appellant.

 Filed October 5, 1999
 Reversed
Klaphake, Judge

Watonwan County District Court
File No. T5-98-969

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

LaMar Piper, Watonwan County Attorney, Todd Kosovich, Assistant County Attorney, 615 Second Avenue S., P.O. Box 109, St. James, MN 56081 (for respondent)

Robert A. Docherty, Somsen, Schade & Franta, PLC, P.O. Box 38, New Ulm, MN 56073-0038 (for appellant)

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Klaphake, Judge.

 U N P U B L I S H E D   O P I N I O N

 KLAPHAKE, Judge

John Bridges appeals from his conviction for disorderly conduct under Minn. Stat. § 609.72, subd. 1(3) (1998). Because the conduct which served as a basis for the conviction was speech protected by the First Amendment, we reverse.

 D E C I S I O N

Bridges was charged under Minn. Stat. § 609.72, subd. 1(3), which states:

Whoever does any of the following in a public or private place, * * * knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct; * * * (3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Because of First Amendment concerns, this statute has been narrowly construed to include only "fighting words" and not words that are merely vulgar, offensive, or insulting. In re Welfare of S.L.J., 263 N.W.2d 412, 418-19 (Minn. 1978). The standard of review involves a dual approach: this court must first review the evidence in a light most favorable to the state and then decide as a matter of law whether the speech is protected by the First Amendment. In re Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997).

"Fighting words" are not protected by the First Amendment. S.L.J., 263 N.W.2d at 416, n. 3. They have been defined as

personally abusive epithets which, when addressed to the ordinary citizen, are likely to provoke violent reaction or tend to incite an immediate breach of the peace. Words that "merely tend to arouse alarm, anger, or resentment in other" are not fighting words. In effect, words or phrases that do not rise to the level of speech capable of or intended to provoke assaultive conduct, even though rude or improvident, come under the protection of the first amendment.

State v. Klimek, 398 N.W.2d 41, 43 (Minn. App. 1986) (quoting S.L.J., 263 N.W.2d at 418).

The disorderly conduct statute may not be used to "combat rudeness or for social engineering." Klimek, 398 N.W.2d at 43. Even if the words used are "vulgar, offensive, and insulting, and * * * their use is condemned by an overwhelming majority of citizens," the speech is protected unless it falls outside the purview of the First Amendment. S.L.J., 263 N.W.2d at 416.

Without a doubt, Bridges's statements were vulgar, offensive, and insulting. However, in order for these statements to be fighting words, they must tend to incite an immediate breach of peace or retaliatory violence by the recipient of the speech. See S.L.J., 263 N.W.2d at 419. "The focus is properly on the nature of the words and the circumstances in which they were spoken[.]" City of Little Falls v. Witucki, 295 N.W.2d 243, 246 (Minn. 1980) (large male customer's threats of physical violence to small female bartender not protected by First Amendment).

Here, the recipient of Bridges's remarks was wearing a National Guard uniform and was only in town for a visit. It appears that Bridges was reacting to the recipient's National Guard uniform and was directing most of his comments at the military in general. In addition, Bridges, who was walking with either his son or daughter, shouted his remarks not in direct confrontation with the recipient, but over his shoulder as he walked away. By the time Bridges made his last remark, he was approximately 50 yards away, in his own yard, and within 20 feet of his own home. The recipient described Bridges's words as "just babbling senselessly on stupid tangents. I don't exactly know what he said."

The recipient did nothing to provoke Bridges or to retaliate against him; rather, the recipient described himself as "shocked" and "offended" and told Bridges "just keep on walking." While the recipient's failure to retaliate is not determinative of whether the speech falls outside First Amendment protection, it is relevant. M.A.H., 572 N.W.2d at 757-58.

Under these circumstances, we cannot conclude that Bridges's remarks, while vulgar and offensive, rise to the level of "fighting words" tending to provoke an immediate violent reaction or breach of the peace. S.L.J., 263 N.W.2d at 420. Construing the disorderly conduct statute narrowly, as we must, Bridges's remarks are an insufficient basis for conviction.

  Reversed.