The Register Citizen (Torrington, CT)
Court upholds conviction of man who used slur
GREENWICH — Can a Greenwich man face criminal penalties for uttering racial slurs at a Black man in 2014?
The state Supreme Court said yes, overturning a previous decision by the Appellate Court in a case centered on free speech rights.
The state’s highest court recently ruled that David Liebenguth could be charged with breach of peace for his words and conduct in an encounter with a Black parking enforcement officer in New Canaan, in which he used the n-word twice, along with obscenities and a reference to the shooting death of a Black man.
The justices concluded in their opinion that the First Amendment right to free speech did not apply to Liebenguth’s conduct, and that the slurs fell under the category of “fighting words,” which are not protected under the Constitution.
“Because the First Amendment does not shield such speech from prosecution, the state was free to use it to obtain the defendant’s conviction of breach of the peace in the second degree, which, as we have explained, is supported by the evidence,” the court ruled late last week in a unanimous opinion written by Justice Richard N. Palmer.
The attorney for Liebenguth said be believes the case “merits review” by the U.S. Supreme Court.
Liebenguth was ticketed
The justices concluded the First Amendment right to free speech did not apply to Liebenguth’s conduct, and that the slurs fell under the category of “fighting words,” which are not protected under the Constitution.
after overstaying at a parking meter in New Canaan on Aug. 28, 2014, and confronted the enforcement officer after finding a $15 parking ticket on his 1999 Ford Escort, according to court documents.
Liebenguth said he was targeted because he was white and told the officer to “remember what happened in Ferguson,” a reference to the fatal shooting of a Black male by a white police officer in Missouri, before mumbling a racial slur and an expletive, court documents said.
As he drove away, Liebenguth again called the town employee the n-word in a loud voice, preceded by an obscenity, court documents said.
The incident was reported to police, and Liebenguth, now 61, was charged with a misdemeanor count of breach of peace. In a non-jury trial in front of Superior Court Judge Alex Hernandez, he was convicted of that charge in May 2016.
Liebenguth and his lawyer appealed that decision. The state Appellate Court, in a 2-1 decision, determined that his speech was constitutionally protected, as contemptible as it was, and overturned the guilty verdict.
Then it was the state’s turn to file an appeal with the highest court.
The Supreme Court reviewed the concept of “fighting words” and the use of the n-word as specifically harmful.
The judges ruled that the n-word was particularly “assaultive” when used against a Black person and inflicted injury by itself alone when uttered.
The use of the word, the court ruled, was without Constitutional protection, “because his racist and demeaning utterances were likely to incite a violent reaction from a reasonable person.”
Liebenguth’s use of obscenities and his confrontational physical manner that was viewed by a witness, added to the argument that his behavior was not protected by free speech, the court said.
“Other language and conduct by the defendant further inflamed the situation, rendering it that much more likely to provoke a violent reaction,” Palmer wrote, and the reference to Ferguson was also termed “menacing.”
The court noted approvingly an essay by a legal scholar in 1982, that said, “Racial insults, relying as they do on the unalterable fact of the victim’s race and on the history of slavery and race discrimination in this country, have an even greater potential for harm than other insults.”
The Supreme Court reviewed the relevant case law, State of Connecticut v. Baccala, in which a woman yelled vulgar insults at a store manager in Vernon in 2013, using a crude term for a woman’s anatomy.
The judges said their ruling was in line with that case, in which the c-word was held to be protected by free speech legislation. The Supreme Court determined offensive and vile speech in that case should not lead to a criminal conviction.
Liebenguth’s attorney, John Williams, sent the following statement by email on Tuesday:
“I believe very strongly that the Supreme Court’s ruling in this case is contrary to the First Amendment.
“I also think it is impossible to draw a rational distinction between the Supreme Court’s holding not very long ago that shouting the ‘c word’ at a woman store clerk is protected speech while speaking the ‘n-word’ to an African American law enforcement officer is not.
“Be that as it may, Attorney Norm Pattis has agreed to petition the United States Supreme Court for a writ of certiorari in this matter. We believe that this case merits review by the nation’s highest court.”
For the breach of peace conviction, the judge ordered Liebenguth to pay a $1,000 fine and serve two years of probation with several conditions imposed. The judge suspended a six-month prison sentence that could have been applied.
Liebenguth was also charged with tampering with a witness, in connection with sending an email to the supervisor of the parking enforcement officer, attempting to block testimony in the upcoming trial.
The parking officer did testify. That charge also ended in a guilty verdict by the lower court trial judge, but it was not considered by the Supreme Court. The Appellate Court upheld the guilty verdict on the tampering charge.
For the tampering charge, the Superior Court judge sentenced Liebenguth to four years of probation with the same conditions and a $3,000 fine. A prison sentence was also suspended in that case.