In State v. Tracy, 2015 VT 111 (August 28, 2015), the Vermont Supreme Court reversed a conviction for disorderly conduct under the “abusive language” prong of 13 V.S.A. § 1026(a)(3).
Issue: Defendant appealed a conviction for disorderly conduct stemming from a heated exchange with his daughter’s basketball coach on grounds that: 1) the “abusive language” prong of 13 V.S.A. § 1026(a)(3) was overbroad and impermissibly chills a substantial amount of constitutionally protected speech without serving a compelling state interest; and 2) that his specific speech underlying to conviction was constitutionally protected.
Holding: After reviewing Vermont and federal case law on the First Amendment, fighting words, and “abusive language” disorderly conduct convictions, the Court reversed the conviction under 13 V.S.A. § 1026(a)(3). The Court noted that the conviction was on the “abusive language” provision, not the provision regarding violent, tumultuous or threatening conduct. Convictions that rest on the abusive language provision must meet the incitement requirement and cannot rest on the threatening character of a defendant’s words or behavior. These convictions must be viewed in light of evolving case law protecting offensive and hurtful language and societal changes where fewer classes of insults can reasonably be expected to elicit violent response. This provision only criminalizes speech that is so inflammatory that “it is akin to dropping a match into a pool of gasoline.” The Court held that, while rude and vulgar, Defendant’s speech was not reasonably likely to incite violence in an average person, and thus his conviction was overturned. As a result, the Court did not reach the question of whether the statute, as interpreted by prior case law, should be overturned on constitutional grounds.