Conn. Crim. Jury Instr. 2.2-7

The defendant claims that (his/her) prosecution for <identify applicable charge(s)> is barred by

the first amendment of the United States constitution because it is based solely on (his/her)

speech. The state contends that the defendant’s statements are not protected by the first

amendment because they were “fighting words.” When a person’s statements to others are

“fighting words,” they are not entitled to first amendment protection. The state has the burden of

proving beyond a reasonable doubt that the defendant’s speech constituted “fighting words.”

The state must prove beyond a reasonable doubt that the defendant’s words were likely to

provoke an imminent violent response by a reasonable person under the circumstances in which

they were uttered. Fighting words are words that have a direct tendency to cause imminent acts

of violence by the average, reasonable person(s) to whom they are directed. Stated otherwise,

fighting words are likely to incite imminent, violent retaliation from the individual(s) to whom

they are addressed.

2 The imminence of a response is based on the likelihood of actual physical

violence or retaliation and not merely an undifferentiated fear or apprehension of disturbance. It

is of no consequence that violence did not occur as the proper standard is whether the words

were likely to provoke a violent response, not whether violence actually resulted.3

In assessing whether imminent, violent retaliation was likely, you should consider what the

impact of the defendant’s words would be on the average, reasonable person(s) in the position of

<identify addressee(s)>. Whether particular statements are fighting words depends on both the

words used and the overall context in which they are spoken. Thus, in determining whether the

defendant’s statements were fighting words, that is, whether there was a likelihood of imminent,

violent retaliation by <identify addressee(s)>, you should consider factors

4 such as:

• the nature of the defendant’s words and the manner, circumstances and situation in which

they were spoken;

• whether the words were preceded by a hostile exchange or accompanied by aggressive

behavior; and

• the reasonably apparent, personal attributes of the defendant and the person(s) to whom

(his/her) words were addressed, such as their age, gender, race, physical stature and

status.

[<Insert if appropriate:> Individuals who occupy certain positions of employment, for example,

police officers or those working in a managerial or supervisory capacity, may be expected to

exercise greater restraint when confronted with hostile speech.]

If, after considering the defendant’s statements and all of the surrounding circumstances in which

they were spoken, you conclude that the state has proven beyond a reasonable doubt that the

defendant’s speech was likely to incite imminent, violent retaliation from a reasonable, average

person in <identify addressee>’s position, then those statements are fighting words that are not

protected by the first amendment.

If the statements are fighting words and you unanimously find that the state has proved beyond a

reasonable doubt each of the elements of <identify applicable charge(s)>, then you shall find the

defendant guilty of (that/those) charge(s). On the other hand, if you unanimously find that the

state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the

defendant not guilty.

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1 State v. Baccala, 326 Conn. 232, 251 (“the state was required to prove beyond a reasonable

doubt that the defendant’s words were likely to provoke an imminent violent response from an

average store manager in [the victim’s] position”), cert. denied, 583 U.S. 1026 (2017).

2 Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942); State v. Parnoff, 329 Conn. 386, 394

(2018).

3 State v. Parnoff, supra, 329 Conn. 394; State v. Liebenguth, 336 Conn. 685, 711 (2020), cert.

denied, 141 S. Ct. 1394 (2021).

4 The multifactor analysis for evaluating whether particular speech constitutes “fighting words”

was articulated by the Connecticut Supreme Court in State v. Baccala, supra, 326 Conn. 240-50.

See also State v. Liebenguth, supra, 336 Conn. 701-703; State v. Parnoff, supra, 329 Conn. 396-

97; and State v. Taveras, 183 Conn. App. 354, 376-77 (2018) (applying analysis), aff’d on other

grounds, 342 Conn. 563 (2022).