On Appeal from Superior Court, Essex Unit, Criminal Division. Robert R. Bent, J.
William H. Sorrell, Attorney General, and Sarah Katz, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Lauren Migliaccio, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Defendant David Tracy was convicted of disorderly conduct by " abusive ... language," 13 V.S.A. § 1026(a)(3), following a heated exchange with his daughter's basketball coach. The trial court, following a bench trial, concluded that defendant's language was not protected by the First Amendment to the United States Constitution because it constituted " fighting words." On appeal, defendant argues that the " abusive language" prong of Vermont's disorderly-conduct statute is overbroad and impermissibly chills a substantial amount of constitutionally protected speech without serving a compelling state interest. He further argues that, even if the statute is constitutional on its face, the speech for which he was convicted in this case is constitutionally protected. We agree that the speech for which defendant was convicted is beyond the reach of the abusive-language prong of the disorderly-conduct statute, and reverse the conviction.
[¶2] The evidence presented at trial, viewed in the light most favorable to the State's case unless the trial court made a specific finding, reflects the following. Defendant's daughter was one of fifteen girls on a junior high school girls' basketball team. The basketball coach did not play defendant's daughter in the first two games of the season. Shortly after the end of the second game, defendant approached the coach and the coach's nineteen-year-old daughter in the school parking lot. The coach and her daughter were sitting in their car preparing to leave. The coach was in the driver's seat, and the coach's daughter was in the front passenger seat. The coach had not yet started the car. It was dark outside, but the parking lot was brightly lit.
[¶3] Defendant parked his car, approached the coach's car, and tapped on the driver's window. Neither the coach nor the coach's daughter recognized defendant. The coach rolled the car window down about a quarter of the way and said " Hi, can I help you?" Defendant introduced himself by name and as his daughter's father, and said " I'd like to talk to you for a minute." The coach put the window the rest of the way down.
[¶4] The coach and the coach's daughter both testified that defendant was calm at the start of the conversation, but that the
exchange soon became heated and agitated. Defendant began by saying that " he just wanted to know why [the coach] wouldn't put his daughter in a game." During the next few minutes, defendant was agitated and used profanity. He kept repeating, " Why can't you put her in a game for one f'ing minute?" He asked what he could do to get her in the game, called the coach " a bitch," and asked her to get out of the car and explain to his daughter why she was trying to damage her self-esteem.
[¶5] The exchange came to an end when the coach told defendant that it was her job as coach to do what was best for the team and not always what is best for individual wants, and that defendant's daughter was not ready to play in a game. Defendant said, " You are not the fucking NBA," and stood up and moved away from the car window.
[¶6] The coach said, " This conversation is over ... You can go to the school tomorrow and file a complaint, but we're done here." The coach then rolled up her window. The defendant had backed away from the coach's car before this point. As he walked away, defendant said, " This is fucking unbelievable," and " You think this is over, this will never be over." 
[¶7] For most of the confrontation, defendant was " in a squatting position, so his knees were fully bent," leaning forward with his hands in the car, but his head outside of the car near the window. The faces of the coach and defendant were about twelve to fourteen inches away from each other. The coach testified that " I wouldn't say he was shouting but he certainly had a very elevated" tone, and that he was " very loud" ; the coach's daughter characterized it as " yelling."
[¶8] The coach testified that as defendant spoke he made " a karate-chopping motion" with his right hand at her clavicle. The coach testified that the force of
the movement was " quite light" at first, but became more forceful " as his voice kept rising and he became more agitated and starting cussing." For emphasis, while talking with the coach, defendant also slammed the car with his left hand.
[¶9] The State initially charged defendant with two misdemeanor offenses: simple assault by physical menace under 13 V.S.A. § 1023(a)(3) (" A person is guilty of simple assault if he or she ... attempts by physical menace to put another in fear of imminent serious bodily injury." ) and disorderly conduct under 13 V.S.A. § 1026(a)(3) (" A person is guilty of disorderly conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly creates a risk thereof ... in a public place, uses abusive or obscene language." ). After the close of evidence in the bench trial, the court allowed the State to amend its charge to include an alternative count of disorderly conduct under 13 V.S.A. § 1026(a)(1), alleging that defendant, with intent to cause public inconvenience or annoyance, or recklessly creating a risk thereof " engaged in threatening behavior." 
[¶10] The trial court found defendant not guilty of the first count, charging that he attempted by physical menace to put another in fear of imminent serious bodily injury. With respect to the newly added charge that he engaged in threatening behavior, the court concluded that the State had not proven beyond a reasonable doubt that defendant's conduct was threatening within the meaning of the statute. The court found defendant guilty of the " abusive or obscene language" charge. The court explained that pursuant to State v. Read, 165 Vt. 141, 680 A.2d 944 (1996), in order to qualify as abusive language, words need to be " fighting words" not subject to First Amendment protection. The court elaborated:
Fighting words typically are words which ... are going to get somebody's juices up and create the risk of a response. ... [The language used] ... in conjunction with the repeated tapping increasing in intensity, the agitation could well fall within that category. ... You've got this sense of agitation ...
This did turn into disorderly conduct, abusive. And the agitation level coupled with the touching, coupled with the words, coupled with the fact it was in a public place kind of lets the court conclude that there was a risk of public inconvenience.
There was a risk that ... the complaining witness was going to do something. In fact, she talked about maybe trying to do something like throw her car in reverse and hitting ... the accelerator ... and she stayed because she was worried that she was ...