“Sticks and stones may break my bones but words will never hurt me.” That little ditty conjures up images of a schoolboy sticking his tongue out as he responds to some childish insult. A recent insurance company advertisement asks, “But did you know words CAN hurt you?” With that a cowboy is riding off into the sunset and collides with the on-screen image, “THE END” and falls off his horse. Recently the Connecticut Supreme Court answered the question whether words can hurt you, in deciding State v. Krijger.
Krijger had been in a long running battle with the Town of Waterford over accumulated debris on his property. Litigation ensued and eventually the Town obtained an injunction and placed a substantial lien on Krijger’s property for the cost of remediation of his messy lot. During the next 5 years Krijger repeatedly violated the injunction, leading to multiple contempt citations.
A running battle continued, with Krijger self-represented and the Town ably represented by Attorney Nicholas Kepple. At one particularly contentious court hearing Krijger and Kepple engaged in a heated argument after court at which time Krijger is reported to have said to Kepple, “. . . more of what happened to your son is going to happen to you” followed by, “I’m going to be there to watch it happen.” Kepple’s son was severely injured years before in an accident, an incident that received local publicity. Kepple later reflected on this exchange, prompting the filing of a police complaint. Krijger was charged with two counts of Threatening in the Second Degree and Breach of the Peace. A jury convicted Krijger on one of the two threatening counts, under a statutory subsection that required proof that his words were stated in reckless disregard of the risk of causing terror.
No actions accompanied the angry exchange, and Krijger never attempted to carry through with his perverse wish. The Appellate Court affirmed the conviction. In rare instances our Supreme Court grants certification to review an intermediary appellate decision. The case represented the collision between free speech and criminal threats, and the high court determined that it needed to address the major constitutional issue presented.
In its essence, the certification petition asked the Court whether there was sufficient evidence to justify the verdict. Reversals for this reason in Connecticut are as rare as hen’s teeth. Great deference is accorded to a jury’s factual determination. The standard for appellate review requires the Court to weigh the evidence in a light most consistent with the jury’s verdict. In this case the jury was presented with two divergent versions of the statements and the effect on Kepple. In most cases the Court would simply adopt the interpretation that favors the verdict, which is exactly what the intermediary appellate court did.
The Supreme Court went further and reversed the conviction, despite adopting the version most consistent with Kepple’s account. Because First Amendment review requires that the Court conduct de novo review, it may examine the entire record and arrive at its own legal interpretation of the facts it assumes the jury found. While recognizing that the First Amendment does not grant immunity to all offensive statements, it ruled that true threats are those that communicate to the hearer a serious expression of intent to harm or assault, as opposed to those that communicate a belief or idea, like hyperbole or a joke, which are protected speech. On its face the threat must be “. . . unequivocal, unconditional, immediate and specific so as to convey a gravity of purpose and an imminent prospect of execution.”
In other words, “sticks and stones, etc.” Krijger’s comments were offensive and classless, but were protected speech. The Court’s analysis was far more detailed than this ditty suggests and the opinion is well worth reading at the Judicial Department’s website, http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR313/313CR61.pdf.