State v. Read

Annotate this Case

State v. Read (95-023); 165 Vt 141; 680 A.2d 944

[Opinion Filed 22-Mar-1996]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 95-023

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Bennington Circuit

John J. Read September Term, 1995

James R. Crucitti (trial) and Robert Grussing III (sentencing), JJ.

William D. Wright, Bennington County State's Attorney, and Marcia J.
Moss and John T. Lavoie, Deputy State's Attorneys, Bennington, for
plaintiff-appellee

Stephen L. Saltonstall of Witten, Saltonstall, Woolmington, Bongartz &
Campbell, P.C., Bennington, for defendant-appellant

Robert Appel, Defender General, and Anna Saxman, Appellate Defender,
Montpelier, for amicus curiae Office of Defender General

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

GIBSON, J. Defendant was convicted in Bennington District Court of
violating the "abusive language" provision of Vermont's disorderly conduct
statute, 13 V.S.A. § 1026(3). He now challenges the constitutionality of
that provision under the United States and Vermont constitutions. We
affirm.

On May 20, 1993, at approximately 2:00 a.m., Trooper Michael Roj of
the Vermont State Police responded to a single-car accident on Route 100 in
Whitingham. Trooper Roj found defendant, whom the trooper knew, at the
scene. Defendant told the trooper, "Mike, I fucked up." The trooper took
no offense at defendant's language, but considered the comment to be
"street language." The trooper detected the odor of alcohol on defendant's
breath, and defendant stated that he had consumed a beer after the
accident. The trooper, observing that defendant had suffered multiple
facial lacerations, persuaded defendant to seek treatment for his injuries,
and

summoned an ambulance, which transported defendant to the emergency room of
the Southwestern Vermont Medical Center.

At approximately 3:00 a.m., Trooper Roj arrived at the medical center
to continue his accident investigation. He entered the hospital through
the emergency entrance and observed an ambulance crew, a nurse, a
physician, and another person, either a patient or a visitor, in the
emergency admissions area. He also observed defendant in the same area,
talking on a public telephone and then entering an examining room just off
the emergency admissions area. After speaking with the nurse, Trooper Roj
followed defendant into the examining room.

The trooper asked defendant several questions about the accident;
defendant responded in a cooperative manner. Trooper Roj then told
defendant that, because he believed defendant had been driving under the
influence of intoxicating beverages, he would be processing defendant for
DUI. He immediately observed that defendant went "from being very
cooperative and very personable to being very uncooperative, very
aggressive, very argumentative, very insulting, very profane, and
display[ing] a number of very aggressive mannerisms." Specifically,
defendant shouted: "You're a fucking piece of shit. . . . You're a
fucking asshole. . . . I want you to get out of my face. You're dead."
Defendant's tone of voice was very loud, and Trooper Roj observed that
defendant's arms were flexed and rigid, his fists were clenched, his teeth
were grinding, and his facial expression was rigidly set in what the
trooper called "the thousand-mile stare."

Trooper Roj attempted to calm defendant down, and advised him that
there were a number of other people in the emergency room who should not be
subjected to defendant's tone of voice or language. The trooper also told
defendant that he could face criminal charges for his behavior. Defendant
became even angrier, and shouted: "Go ahead, you fucking pig. You're a
stupid fucking pig. You're not even here, you pig." Trooper Roj felt "a
sense of great anger built up within me based upon not only the words that
were used, but the voice, the aggressive voice in which they were used,"
and felt "afraid of the possibilities of an imminent

attack by Mr. Read upon me," particularly after defendant told the trooper,
"You're dead."(FN1) During defendant's tirade, the door of the examining room
was open. When Trooper Roj left the room, he observed a physician seated
in an adjacent room with its door open, and a nurse seated forty-five feet
from the examining room.

Trooper Roj acknowledged that he had had both training and experience
in dealing in a nonviolent manner with abusive persons, including
intoxicated persons, and that he would be subject to disciplinary action if
he struck a person merely for being verbally abusive.

Defendant was charged with disorderly conduct, in violation of 13
V.S.A. § 1026(3), which provides, in pertinent part: "A person who, with
intent to cause public inconvenience, or annoyance or recklessly creating a
risk thereof . . . [i]n a public place uses abusive . . . language . . .
shall be imprisoned for not more than 60 days or fined not more than
$500.00 or both." 13 V.S.A. § 1026(3) (emphasis added). Defendant moved
for dismissal on the grounds that the statute is facially vague and
overbroad in that it impermissibly infringes free speech, as guaranteed
under the United States and Vermont constitutions. The trial court denied
defendant's motion, holding that the "abusive language" provision of §
1026(3) applies only to "fighting words," as that term was used by the
United States Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
572 (1942). Defendant was convicted following a bench trial.

Defendant renews his federal and state constitutional challenges on
appeal. Because the Vermont Constitution may not derogate any rights
guaranteed under the United States Constitution, Benning v. State, 161 Vt.
472, 475 n. 2, 641 A.2d 757, 758 n. 2 (1994), we begin with defendant's
federal constitutional claims.

Defendant contends that the "abusive language" provision is
unconstitutionally vague and

overbroad, in violation of the First and Fourteenth Amendments to the
United States Constitution.(FN2) Identical claims were raised by an earlier
case, State v. Elwell, 131 Vt. 245, 303 A.2d 134 (1973), but we were not
called upon to resolve those claims, because we determined that the
interlocutory appeal had been improvidently granted by the trial court.
Id. at 248, 303 A.2d at 136. We acknowledged in dictum, however, that "the
statute in question might be found to have a constitutional infirmity under
one set of circumstances, [but] possibly a different answer might be given
under another." Id. at 248, 303 A.2d at 135. We have previously rejected
overbreadth and vagueness challenges to other provisions of the disorderly
conduct statute that proscribe conduct rather than speech. See, e.g.,
State v. Begins, 147 Vt. 45, 48, 509 A.2d 1007, 1009 (1986) (rejecting
vagueness challenge to "violent, tumultuous or threatening behavior"
provision of 13 V.S.A. § 1026(1)); State v. Arbeitman, 131 Vt. 596, 601,
313 A.2d 17, 20 (1973) (rejecting vagueness and overbreadth challenges to
"[o]bstructs . . . pedestrian traffic" provision of 13 V.S.A. § 1026(5)).
On its face, however, the "abusive language" provision of 13 V.S.A. §
1026(3) proscribes speech, rather than conduct.

Although vagueness and overbreadth challenges are doctrinally
distinct, see generally L. H. Tribe, American Constitutional Law § 12.11,
at 860-61 (2d ed. 1988), nevertheless, when they arise in a First Amendment
context, we "`vie[w] vagueness and overbreadth as logically related and
similar doctrines.'" State v. Cantrell, 151 Vt. 130, 134, 558 A.2d 639,
642 (1989) (quoting Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983)).

When a statute punishes only spoken words, it can withstand an attack
upon its facial constitutionality only if "it is not susceptible of
application to speech, although vulgar or offensive, that is protected by
the First and Fourteenth Amendments." Gooding v. Wilson, 405 U.S. 518, 520 (1972). Thus, we will not reach challenges based on facial
unconstitutionality if there is a "`readily apparent construction [that]
suggests itself as a vehicle for rehabilitating the statut[e].'" Id. at
521 (quoting Dombrowski v. Pfister, 380 U.S. 479, 491 (1965)); accord
Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397 (1988) ("It has
long been a tenet of First Amendment law that in determining a facial
challenge to a statute, if it be `readily susceptible' to a narrowing
construction that would make it constitutional, it will be upheld.")
(quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)).
Indeed, this Court is obligated to narrow and limit the statute in light of
the protections guaranteed by the United States and Vermont constitutions.
See Commonwealth v. Mastrangelo, 414 A.2d 54, 57 (Pa. 1980) (construing
analogous statute); Cantrell, 151 Vt. at 134, 558 A.2d at 642 ("Where
possible, a statute must be construed to avoid constitutional
infirmities.").

In Chaplinsky, the United States Supreme Court declared:

[I]t is well understood that the right of free speech is not absolute at all
times and under all circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the
insulting or "fighting" words -- those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. . . .

315 U.S. at 571-72 (footnotes omitted) (emphasis added). The Court has
recently acknowledged the continued vigor of the "fighting words" doctrine.
See R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992) ("`fighting words'
. . . constitute `no essential part of any exposition of ideas'") (quoting
Chaplinsky, 315 U.S. at 572).

Defendant contends that the trial court erred in construing the
"abusive language" provision of 13 V.S.A. § 1026(3) to apply only to
"fighting words." The history of the statutory provision, however,
supports the trial court's construction. In 1972, the Legislature amended

Vermont's "breach of the peace" statute (FN3) to follow the "disorderly
conduct" language of Model Penal Code § 250.2(1). State v. Cole, 150 Vt.
453, 455, 554 A.2d 253, 255 (1988); State v. D'Amico, 136 Vt. 153, 155, 385 A.2d 1082, 1084 (1978). The major statutory change was the added
requirement that the State prove, as an essential element of the offense,
that a defendant acted with the intent to cause public inconvenience or
annoyance, or with such recklessness as to create a risk of public
inconvenience or annoyance. Id. at 155, 385 A.2d at 1084.

In construing statutes, our overriding objective must be to effectuate
the intent of the Legislature. State v. Forcier, 162 Vt. 71, 74, 643 A.2d 1200, 1202 (1994). We accord statutes a presumption of constitutionality.
Benning, 161 Vt. at 481, 641 A.2d at 762. We also presume that the
Legislature makes changes in the law in light of relevant judicial
precedents and with knowledge of prior legislation on the same subject.
Thayer v. Herdt, 155 Vt. 448, 453, 586 A.2d 1122, 1125 (1990). When a
statute is taken from a model act, it is often helpful to examine the
intent behind the model act. State v. Papazoni, 159 Vt. 578, 581, 622 A.2d 501, 503 (1993); see D'Amico, 136 Vt. at 156, 385 A.2d at 1084 ("Although
the rationale of the Model Penal Code is not binding on this Court, it is
indicative of what the General Assembly intended in adopting legislation
modeled on the Code.").

According to the Comments to the Model Penal Code, Chaplinsky was one
of

the chief available precedents when the Model Code was drafted.
Chaplinsky had made clear, at least, that an appropriate statute
constitutionally could prohibit fighting words. This is the import of the
Subsection (1)(b) coverage of one who, with purpose to cause public
inconvenience or in reckless disregard of the risk thereof, "addresses
abusive language to any person present." The limitation to abusive
language specifically addressed to a person present is an important factor
in confining this version of the offense to the "fighting words" context.

Model Penal Code § 250.2 cmt. 4 (emphasis added).

In light of the action of the Legislature in amending our statute to
conform to the language of the Model Penal Code, and the intent of the
Model Code drafters to limit the reach of the provision to "fighting
words," we hold that the "abusive language" provision of § 1026(3) is
properly construed as proscribing only "fighting words." Prosecution under
that provision is appropriate only when a defendant's spoken words, when
directed to another person in a public place, "tend to incite an immediate
breach of the peace." Chaplinsky, 315 U.S. at 572.

Nonetheless, in Gooding v. Wilson, the Court struck down, on both
overbreadth and vagueness grounds, a Georgia statute that made it a crime
for "[a]ny person . . ., without provocation, [to] use to or of another,
and in his presence . . . abusive language, tending to cause a breach of
the peace . . . ." 405 U.S. at 519-20. The Court held that the word
"abusive" has "greater reach than `fighting' words," id. at 525, and thus
the Georgia statute "sweeps too broadly" by making it a crime "merely to
speak words offensive to some who hear them." Id. at 527. Although 13
V.S.A. § 1026(3) also punishes "abusive language," the Vermont statute is
distinct from the Georgia statute at issue in Gooding, because the Vermont
statute requires an explicit intent element. Cf. Ga. Code § 26-6303
(1933), quoted in Wilson v. Gooding, 431 F.2d 855, 856 n.2 (5th Cir. 1970),
aff'd, 405 U.S. at 520.

Limiting punishment to those who use abusive language with the
requisite mental state is sufficient to save the statute from a vagueness
or overbreadth challenge. See Colten v. Kentucky, 407 U.S. 104, 110 (1972)
(rejecting vagueness and overbreadth challenges to disorderly conduct
statute containing intent element nearly identical to 13 V.S.A. § 1026(3));
Mastrangelo, 414 A.2d at 57-58 (upholding analogous statute because of
specific-intent requirement); State v. Weber, 505 A.2d 1266, 1271 (Conn.
App. Ct. 1986) (same); see also State v. Wilcox, 160 Vt. 271, 273-74, 628 A.2d 924, 925-26 (1993) (upholding telephone harassment statute in part
because of specific-intent requirement); cf. City of Houston v. Hill, 482 U.S. 451, 473-74 (1987) (Powell, J., concurring) (if statute, which Court
struck down as vague and overbroad, had had explicit intent requirement,
"it would narrow substantially the

scope of the ordinance, and possibly resolve the overbreadth question; it
would also make the language of the ordinance more precise, and possibly
satisfy the concern as to vagueness").

Defendant contends, however, that the "fighting words" doctrine has
less force when the person to whom the words are addressed is a peace
officer engaged in official duties. Because police officers are trained to
remain calm when confronted with hostile persons, and because police
officers face disciplinary action if they react violently to the use of
abusive language alone, then, in defendant's view, defendant's words could
not "by their very utterance inflict injury or tend to incite an immediate
breach of the peace," as required by Chaplinsky, 315 U.S. at 572.
Defendant finds support for his position in the concurring opinion of
Justice Powell in Lewis v. City of New Orleans, 415 U.S. 130 (1974).

In Lewis, the Court struck down as unconstitutionally overbroad a
municipal ordinance that made it a crime for "`any person wantonly to curse
or revile or to use obscene or opprobrious language toward or with
reference to any member of the city police while in the actual performance
of his duty.'" Id. at 132 (quoting New Orleans Ordinance 828 M.C.S. § 49-
7 (1972)). Although the Louisiana Supreme Court declared that the
ordinance was limited only to "fighting words," the United States Supreme
Court found that the state high court "contemplated a broader reach of the
ordinance," and that the ordinance "plainly has a broader sweep than the
constitutional definition of `fighting words' announced in Chaplinsky."
Id. at 132. Justice Powell, concurring in the judgment, reasoned that "a
properly trained officer may reasonably be expected to `exercise a higher
degree of restraint' than the average citizen, and thus be less likely to
respond belligerently to `fighting words.'" Id. at 135 (Powell, J.,
concurring) (quoting Lewis v. City of New Orleans, 408 U.S. 913, 913 (1972)
(Powell, J., concurring)).

We acknowledge that courts must take cognizance of the special
circumstances involved in prosecutions for verbal abuse of police officers.
See generally Model Penal Code § 250.2 cmt. 7. But unlike the ordinance at
issue in Lewis, Vermont's disorderly conduct statute is not

confined to verbal abuse of police officers. Rather, § 1026(3) makes no
distinction among the victims it seeks to protect. Defendant thus invites
us to create a statutory exception whereby persons who use abusive language
in public enjoy greater protections when their intended victims are police
officers. The states are divided on the application of such an exception.
Compare City of Bismarck v. Schoppert, 469 N.W.2d 808, 813 (N.D. 1991)
(evidence insufficient to support disorderly conduct conviction where
police officers' "testimony confirmed the notion . . . that those
well-trained and experienced police officers were able to hear Schoppert's
vulgar and abusive speech as part of their duties") and State v. John W.,
418 A.2d 1097, 1106 (Me. 1980) ("We presume that a police officer would not
so readily respond violently to conduct of the sort engaged in by John W.")
with State v. Wolff, 657 A.2d 650, 654 (Conn. App. Ct. 1995) (upholding
conviction under "abusive language" provision where defendant "confronted
the officers in a public place," "conducted an unprovoked verbal attack on
the officers using vile language," and "his language and actions annoyed
and alarmed people in the vicinity") and Person v. State, 425 S.E.2d 371,
373 (Ga. Ct. App. 1992) (evidence sufficient to support finding that
defendant used "fighting words" to arresting officer).

We do not believe that Vermont's statutory provision warrants
excepting from its reach those incidents in which the victims are police
officers. Indeed, we have previously affirmed convictions where defendants
used "fighting words" to hinder law enforcement officers in the execution
of their official duties. State v. Dion, 154 Vt. 420, 426, 578 A.2d 101,
104 (1990); accord State v. Oren, 162 Vt. 331, 335, 647 A.2d 1009, 1012
(1994).(FN4) The fact that police officers such as Trooper Roj are trained
to deal calmly and authoritatively with disorderly

persons does not guarantee that police officers are immune from reacting
instinctively in the face of an abusive tirade. As one state supreme court
justice has observed, "Because of the authority we vest in police officers
we may have the right to expect them to exercise restraint. But we do not
pay them enough to expect they will quash, if they could, all the same
human reactions that other people have." Schoppert, 469 N.W.2d at 814
(Vande Walle, J., concurring). While police officers are experienced at
handling unruly persons, the corollary is that police officers are
obligated to confront such persons frequently. We may rightly expect that
a police officer will act in accordance with his or her training or
disciplinary rules. But to fashion from this expectation a judicial rule
that relieves a person from the reach of a criminal statute solely because
the victim is a police officer is to invite the use of abusive language
toward police officers. We do not believe that such a rule is sound in
practice or in principle.

Defendant further contends that "criticism" of police officers is a
form of political speech to which the "fighting words" doctrine cannot
constitutionally extend.(FN5) See City of Houston, 482 U.S. at 462-63 ("The
freedom of individuals verbally to oppose or challenge police action
without thereby risking arrest is one of the principal characteristics by
which we distinguish a free nation from a police state."). Our practice,
however, is that we will rule on the constitutionality of a statute only in
the context of the factual situation of the case out of which it arises.
Begins, 147 Vt. at 48, 509 A.2d at 1009. On the facts presented, we do not
agree that defendant's statements to Trooper Roj constituted political
speech. Whatever grievance

defendant may have been attempting to articulate with respect to the policy
of DUI processing, or to Trooper Roj's implementation of such a policy, was
substantially outweighed, if not negated, by the personal invective
defendant heaped upon Trooper Roj, who was an acquaintance of defendant's.

We conclude, therefore, that the statute was properly applied to
defendant's statements in this case. Defendant, while awaiting medical
treatment in a hospital emergency room, with a number of other persons
nearby, pointedly directed a tirade of invective at Trooper Roj and did so
while flexing his arms, clenching his fists, and grinding his teeth. As
the Connecticut appeals court said in similar circumstances:

The use of invectives in the nature of those utilized by the defendant
do not automatically come under the shield of the federal or state
constitutions as protected speech, but can only be classified in
juxtaposition with the other factors present when the words were
expressed. The words, standing alone, are, except for their
lexicographical definition, without consequence. When, however, as
in this case, they are shouted by an obviously intoxicated person in a
hostile and challenging confrontation and in front of a crowd of people
. . ., they may constitute the abusive language and breach of the peace
proscribed by the statute.

Weber, 505 A.2d at 1270; see also Commonwealth v. Pringle, 450 A.2d 103,
104, 107 (Pa. Super. Ct. 1982) (defendant who "looked directly at"
arresting officer and "repeatedly shouted `goddamn fucking pigs'" engaged
in "fighting words" and "created a risk of public inconvenience, annoyance
[and] alarm" in violation of disorderly conduct statute).

II.

Defendant also challenges the validity of the "abusive language"
provision of 13 V.S.A. § 1026(3) under Chapter I, Articles 13 and 20 of the
Vermont Constitution.(FN6) Defendant argues that the constitutional language
and history demonstrate that the Vermont Constitution accords

greater protections to free speech than does the United States
Constitution.

We have recognized that "[t]he Vermont Constitution may afford greater
protection to individual rights than do the provisions of the federal
charter." State v. Kirchoff, 156 Vt. 1, 4, 587 A.2d 988, 991 (1988). We
have suggested that the right of free speech guaranteed under Article I,
Chapter 13 is coextensive with the First Amendment, Shields v. Gerhart, ___
Vt. ___, ___, 658 A.2d 924, 929 (1995), but we have expressly reserved a
final determination of the congruence of the state and federal rights.
Grievance of Morrissey, 149 Vt. 1, 18, 538 A.2d 678, 689 (1987).

As final interpreter of the Vermont Constitution, this Court has final
say on what process is due in any given situation. State v. Porter, 7 Vt.
L. Wk. 1, 1 (1996). Defendant, however, bears the burden of explaining how
or why the Vermont Constitution provides greater protection than the
federal constitution. Id. The late Justice Thomas Hayes, writing for this
Court in State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), suggested
several arguments that a defendant might use to meet his burden. Id. at
226-27, 500 A.2d at 236-37. Defendant in the instant matter raises
textual, comparative, and historical arguments to support an expansive
protection of free speech under the Vermont Constitution.(FN7) We find none
of these arguments persuasive.

Defendant first observes that the Vermont Constitution contains no
fewer than four separate provisions expressly guaranteeing the right of
free speech. See Vt. Const. ch. I, art. 13 (freedom of speech); id., art.
14 ("freedom of deliberation, speech, and debate, in the Legislature"); and
id., art. 20 (rights to assemble and to petition Legislature for redress of
grievances). The state provisions, however, mirror four clauses of the
United States Constitution. See U.S. Const. art. I, § 6 (immunity for
legislative "Speech or Debate"); id., amend. I (freedom of speech and
rights to assemble and petition for redress). An argument grounded solely
upon numerical prevalence is therefore unavailing.

Defendant next offers a comparison between the Vermont Constitution
and several other state constitutional schemes as support for an expansive
free-speech right. Specifically, defendant observes that, in contrast to
the right recognized in the Vermont Constitution, the majority of state
constitutions, including the Pennsylvania Constitution, qualify the
speaker's liberty of speech with the "responsib[ility] for the use of that
liberty." Pa. Const. art. 1, § 7; see also Developments in the Law -- The
Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1399
n.3 (1982) (listing state constitutional provisions). Because the Vermont
Constitution does not qualify its free-speech right with a speaker's
affirmative responsibility, then, according to defendant, our state charter
must be interpreted to afford Vermont speech the highest degree of
protection. By comparing state constitutions that differ from the Vermont
charter, however, defendant overlooks the premise of the "sibling state
approach" to state constitutional analysis, which "involves seeing what
other states with identical or similar constitutional clauses have done."
Jewett, 146 Vt. at 227, 500 A.2d at 237 (emphasis added). Defendant
provides no comparison to similar state constitutions, and thus invites us
to resolve his constitutional claim based only upon an inference drawn from
dissimilar state constitutions. We decline defendant's invitation.

Finally, defendant argues that the history of Vermont manifests a
greater tolerance for the individual costs engendered by abusive language
when weighed against the common benefits

in protecting liberty. Indeed, historians have long observed that, in
early Vermont, "`the language of profanity was the common dialect.'" D.
Ludlum, Social Ferment in Vermont, 1791-1850 21 (1939) (quoting C. Wright,
The Advisor (1811)). Defendant points out that, in 1798, Vermont voters
reelected Congressman Matthew Lyon while he sat in jail, convicted of using
abusive language under the Sedition Act of 1798. A. Austin, Matthew Lyon:
"New Man" of the Democratic Revolution, 1749-1822 124 (1981). Yet, in
1799, the Governor and Council of Vermont, responding to resolutions by
Kentucky and Virginia opposing the Sedition Act and espousing the doctrine
of nullification as a limitation on the authority of the national
government, stated:

In your . . . resolution you . . . severely reprehend the act of
Congress commonly called "the Sedition bill." If we possessed the
power you assumed, to censure the acts of the General Government,
we could not consistently construe the Sedition bill unconstitutional;
because our own constitution guards the freedom of speech and the
press in terms as explicit as that of the United States, yet long before
the existence of the Federal Constitution, we enacted laws which are
still in force against sedition, inflicting severer penalties than this act
of Congress.

And although the freedom of speech and of the press are declared
unalienable in our bill of rights, yet the railer against the civil
magistrate, and the blasphemer of his Maker, are exposed to grievous
punishment. And no one has been heard to complain that these laws
infringe our state Constitution.

Appendix K: Replies of Vermont to the Kentucky and Virginia Resolutions of
1798, in IV Records of the Governor and Council of Vermont 525, 527 (E. P.
Walton ed. 1876) (emphasis added). The historical record is thus
inconclusive on the question of whether the Vermont Constitution provides a
broader protection for free speech.

Defendant points to our decision in Harris v. Huntington, 2 Tyl. 129
(1802), in which we held that the "redress of grievances" provision of
Chapter I, Article 20 of the Vermont Constitution creates an absolute
privilege for libelous statements addressed to the Legislature. Id. at 146;
accord Petitions of Davenport, 129 Vt. 546, 559, 283 A.2d 452, 458-59
(1971) ("[A]lthough the subject of a petition may deviate from the views of
others or may engender

controversy, we must bear that risk."). As defendant correctly observes,
our reasoning in Harris was expressly rejected by the United States Supreme
Court, which refused to fashion a similar rule under the Petition Clause of
the First Amendment. White v. Nicholls, 3 How. 266, 282 (citing Harris),
291 (1845); accord McDonald v. Smith, 472 U.S. 479, 483 (1985)
(distinguishing the "absolute position of the Vermont court" in Harris).
Immunity under the petition clause, however, protects only statements
addressed directly to the Legislature. Harris, 2 Tyl. at 146. We observed
in Harris that such immunity "is indispensable[] from the right of
petitioning the supreme power for the redress of grievances; for it would
be an absurd mockery in a government to hold out this privilege to its
subjects, and then punish them for the use of it." Id. at 139-40.
Consequently, we held that "the abuse of the right must be submitted to in
common with other evils in government, as subservient to the public
welfare." Id. at 146. Such concerns do not underlie the right of free
speech generally, and defendant's reliance on the petition clause is
inapposite.

Defendant having failed to demonstrate that the Vermont Constitution
affords a more expansive free-speech right than is found under the federal
charter, we conclude that the statements that formed the basis for his
disorderly conduct conviction find no constitutional protection.

Affirmed.

_______________________________________
Associate Justice

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Footnotes

FN1. Contrary to the assertion of the dissent, Trooper Roj contrasted
his strong reaction to defendant's statements in the examining room with
his impassive response to defendant's earlier "street language."

FN2. The First Amendment provides: "Congress shall make no law . . .
abridging the freedom of speech . . . or the right of the people . . . to
petition the Government for a redress of grievances." U.S. Const. amend.
I. The "due process" clause of the Fourteenth Amendment makes the
protections of the First Amendment applicable to the states. U.S. Const.
amend. XIV, § 1; Gitlow v. New York, 268 U.S. 652, 666 (1925).

FN3. Prior to the amendment, the statute provided: "A person who
disturbs or breaks the public peace . . . [b]y any disorderly act or
language, which does not amount to assault or battery, or destruction of
property, shall be imprisoned not more than thirty days or fined not more
than $25.00 or both." 13 V.S.A. § 1021(2) (1958) (repealed 1972).

FN4. The dissent characterizes the "fighting words" doctrine as an
"archaic relic" that hearkens back to "more chauvinistic times." Post, at
1. In Oren, however, we affirmed a conviction for hindering a law
enforcement officer under the "fighting words" doctrine, without regard to
the fact that both the defendant and the officer were women. State v.
Oren, 162 Vt. 331, 335, 647 A.2d 1009, 1012 (1994). We continue to view
application of the doctrine as bearing no relation to the sex of the
speaker or hearer.

FN5. The Defender General, as amicus curiae, contends that, under 13
V.S.A. § 1026(3), "[o]nly those abusive words directed to a police officer
in a public forum are actually punished in Vermont." Thus, according to
amicus, even if we construe the statute to reach only "fighting words," the
selective enforcement of the statute in practice has resulted in
"content-based regulation of speech," which the United States Supreme Court
held unconstitutional in R.A.V. v. City of St. Paul, 505 U.S. 377, 384-85
(1992). The statute is, however, content-neutral on its face. Amicus
provides no facts, law or analysis to support its assertion that the
statute in its application is a content-based regulation. Amicus thus
invites us to strike down the statute based only on speculation; we decline
to do so. See KPC Corp. v. Book Press, Inc., 161 Vt. 145, 152, 636 A.2d 325, 329 (1993) (assertions in brief unaccompanied by facts, law or
reasoning need not detain us).

FN6. The Vermont Constitution provides: "That the people have a
right to freedom of speech," Vt. Const. ch. I, art. 13, and, "That the
people have a right to assemble together to consult for their common good
-- to instruct their Representatives -- and to apply to the Legislature for
redress of grievances, by address, petition or remonstrance." Id. ch. I,
art. 20.

FN7. Defendant has not raised empirical, doctrinal, prudential,
structural or ethical arguments, all of which were suggested by Justice
Hayes in State v. Jewett, 146 Vt. 221, 227, 500 A.2d 233, 237 (1985). Nor
has defendant framed his argument in terms of "core values," a principle
that has at times guided our analysis of distinctions between state and
federal constitutional rights. See, e.g., State v. Rogers, 161 Vt. 236,
246, 638 A.2d 569, 575 (1993) (because paramount concern in search and
seizure cases is to give effect to core values of privacy underlying Vt.
Const. ch. I, art. 11, Court has not hesitated to depart from parallel
federal law when necessary to achieve this goal); but cf. State v. Welch,
160 Vt. 70, 76, 624 A.2d 1105, 1108 (1992) (Court's Article 11
jurisprudence has diverged from Fourth Amendment analysis even though core
value of privacy is identical under federal and state constitutions); see
also Bennett v. Thomson, 363 A.2d 187, 195 (N.H. 1976) (Grimes, J.,
dissenting) ("[T]he free and unhindered debate on matters of public
importance . . . is the core value of the free speech clause of the first
amendment and part I, article 22 of the New Hampshire constitution and lies
at the very foundation of our free society."). Consequently, our decision
today does not address the distinctions, if any, between the state and
federal constitutional protections that might be shown to exist upon
consideration of those principles.

--------------------------------------------------------------------------
Dissenting

No. 95-023

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Bennington Circuit

John J. Read September Term, 1995

James R. Crucitti (trial) and Robert Grussing III (sentencing), JJ.

William D. Wright, Bennington County State's Attorney, and Marcia J.
Moss and John T. Lavoie, Deputy State's Attorneys, Bennington, for
plaintiff-appellee

Stephen L. Saltonstall of Witten, Saltonstall, Woolmington, Bongartz &
Campbell, P.C., Bennington, for defendant-appellant

Robert Appel, Defender General, and Anna Saxman, Appellate Defender,
Montpelier, for amicus curiae Office of Defender General

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J., dissenting. I respectfully dissent. In my view, the
"fighting words" doctrine has become an archaic relic, which found its
genesis in more chauvinistic times when it was considered bad form for a
man to back down from a fight. Even the United States Supreme Court, which
created it in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, (1942), has
never since used the "fighting words" doctrine to uphold a conviction.
Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument
for its Interment, 106 Harv. L. Rev. 1129, 1129 (1993). Recognition in
legal analysis that it is "reasonable" to expect a person to retaliate with
his fists when provoked by speech, it seems to me, runs counter to what the
law should endorse. And, even if the doctrine has any vitality left to it,
it is not available to save the conviction in this case.

To begin with, the statute under consideration does not limit itself
to "fighting words,"

and it is not our proper function to rewrite it. The statute reads:

§ 1026 Disorderly conduct

A person who, with intent to cause public inconvenience, or
annoyance or recklessly creating a risk thereof:
(1) Engages in fighting or in violent, tumultuous or threatening
behavior; or
(2) Makes unreasonable noise; or
(3) In a public place uses abusive or obscene language; or
(4) Without lawful authority, disturbs any lawful assembly or
meeting of persons; or
(5) Obstructs vehicular or pedestrian traffic,
shall be imprisoned for not more than 60 days or fined not more
that $500.00 or both.

13 V.S.A. § 1026 (emphasis added). Defendant was charged with violating
the emphasized provision of § 1026. As can be readily determined,
"fighting" under § 1026(1) is limited to the physical, not the verbal.

The victim of the offense was a police officer. The so-called
"fighting words" "specifically addressed" to him were:

You're a fucking piece of shit.
You're a fucking asshole.
I want you to get out of my face.
You're dead.
Go ahead, you fucking pig.
You're a stupid fucking pig.
You're not even here, you pig.

These words -- parroting familiar dialogue of screen-writers -- are as
devoid of fighting content as they are lacking in imagination. The trooper
simply attributed the choice of words to "street language," spoken by a man
whom he knew ("Mike, I fucked up"). The "fighting" content of the tirade
can only be attributed to defendant's ascension emotionally from calm and
friendly to "very uncooperative, very aggressive, very argumentative, very
insulting, very profane, and display[ing] a number of very aggressive
mannerisms," such as arms flexed and rigid, fists clenched, teeth grinding,
and facial expression rigidly set in the "thousand-mile stare." Indeed,
the situation more approximates a violation of § 1026(1) ("[e]ngages in . .
. threatening behavior") than a violation of § 1026(3) ("uses abusive . . .
language").

The scene ironically suggests that had defendant not vented in his
"very profane" way, he would have probably punched the trooper in the nose.
The evidence does not suggest, on the

other hand, that defendant was in any danger of assault from the trooper.
The trooper inferred "an imminent attack" from defendant's language and
demeanor, but had no intention to strike defendant. The trooper felt "a
sense of great anger" build up and fear, but he assured the court that his
training, experience, and knowledge of disciplinary rules prevented him
from striking defendant. There is nothing in this record or common sense
to suggest that even an average person would have been so provoked by
defendant's behavior that he would have physically attacked defendant.
Defendant's words were certainly annoying, and, I suppose, someone --
perhaps another intoxicated male -- might reasonably have been expected to
start a fight upon hearing them. But, a conviction cannot validly rest on
that. The Court has misunderstood the "fighting words" doctrine.

The doctrine has undergone a rather ragged development since World War
II when it was first announced. Today, it is largely discredited as "a
hopeless anachronism that mimics the macho code of barroom brawls." K.
Sullivan, The First Amendment Wars, New Republic, Sept. 28, 1992, at 35,
50. The doctrine is limited to words likely to immediately provoke the
individual listener to whom they are directed to start a fight. An
objective standard is required to determine that issue -- that is, would a
reasonable police officer be expected to use violence against the speaker
given the circumstances and the characteristics of the speaker and officer?
The test is not met just because somebody somewhere hearing "the words"
might start a fight. See Gooding v. Wilson, 405 U.S. 518, 524 (1972) (words
must have direct tendency to provoke violent acts "by the person to whom,
individually, the remark is addressed").

In Gooding, the high court struck down a statute interpreted by
Georgia exactly as this Court interprets the Vermont statute. Georgia
applied the fighting words doctrine to prohibit "abusive language," which
tends to cause a "breach of peace," directed at one "`who, on account of
circumstances or by virtue of the obligations of office, cannot actually
then and there resent the same by a breach of the peace.'" Id. at 519, 526
(quoting Elmore v. State, 183 S.E. 799, 799-800 (1914). Most evidently,
the United States Supreme Court has included a "clear and present danger"
component in the doctrine. Houston v. Hill, 482 U.S. 451, 461 (1987)
(speech

may be punished only if likely to produce "`a clear and present danger of a
serious substantive evil that rises far above public inconvenience,
annoyance, or unrest'") (quoting Terminiello v. Chicago, 337 U.S. 1, 4
(1949)). The words spoken must prompt the one addressed to respond with
violence by attacking the speaker then and there. See L. Tribe, American
Constitutional Law § 12-18, at 929 n.9 (2d ed. 1988).

Because this Court has acknowledged that under an objective test the
police officer here was not likely to assault defendant due to what he
said, that finding should be dispositive of this appeal. Instead, the
Court overrides the federal law announced in Gooding by saying merely that
people should be discouraged from using vulgar language around police
because "`we do not pay [police officers] enough'" to put up with it.
Ante, at 10 (quoting City of Bismarck v. Shoppert, 469 N.W.2d 808, 814
(N.D. 1991) (Vande Walle, J., concurring). That, of course, begs the
constitutional question.

I agree that abusive language is annoying and sometimes exceedingly
painful to take. If, however, mere words that might hypothetically induce
pugnacious persons to lash out may serve as a basis for punishing the
speaker, no matter to whom spoken, two dangers are apparent: one, the law
is driven by the lowest common denominator modeled after the stereotypical
"male chauvinist," and, two, the very vagueness of the test will sweep up
content-protected speech if spoken with sufficiently agitated body
language.

The Court concludes that the statute is saved from a vagueness
challenge because defendant must have had the specific intent as defined in
the law. At the very least, then, the State must prove that by uttering
the fighting words defendant was recklessly creating a risk of public
inconvenience or annoyance. This mental element did not save the Louisiana
breach of peace law in Lewis v. city of New Orleans, 415 U.S. 130, 132
(1974) (unlawful for person "wantonly . . . to use . . . opprobrious
language toward" police officer). Indeed, this element would be present in
every case where the other elements of the crime are proved. A person
speaking abusively in public would naturally expect somebody to be annoyed.
The Court, however, has not narrowed the definition of the mental element
to an intent to provoke a fight.

It seems to me that the fighting words doctrine, no matter how archaic that
concept, demands no less. In short, the law's mental element, intent to
annoy, is not a "large enough tail to wag this dog."

I would reverse. I am authorized to say that Justice Dooley joins
this dissent.

FOR THE COURT:

_______________________________________
Associate Justice

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