- Associated Press - Friday, August 28, 2015

MONTPELIER, Vt. (AP) - The Vermont Supreme Court on Friday overturned the disorderly conduct conviction of a New Hampshire man who yelled profanity at a high school basketball coach and hit a parked car with his hand because he was upset his daughter didn’t get to play in a junior varsity game.

The Supreme Court said David Tracy’s behavior at the game in Canaan could be seen as threatening but didn’t fall within the scope of the state’s disorderly conduct law. The court said the law pertains to speech that is “reasonably expected to cause the average listener to respond with violence.”

“Defendant’s expression was vulgar, boorish, and just plain rude. His conduct could arguably have been viewed as threatening …,” Justice Beth Robinson wrote in the decision. But “The provision only reaches speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline.”

Essex County State’s Attorney Vincent Illuzzi, who prosecuted the original case but didn’t handle the appeal, said he was disappointed by the ruling and noted that the volunteer basketball coach quit as a result of Tracy’s conduct.

“I don’t know if there’s a legislative solution to address this type of behavior,” he said. “We obviously felt it was over the top and warranted criminal prosecution.”

Vermont Defender General Matt Valerio, whose office represented Tracy, called “the zealousness of the prosecution … somewhat astounding.”

“Unfortunately there’s some level of rudeness and turmoil that you have to put up with living in a free society,” Valerio said. “Ultimately if bad language rises to the level of a crime, then lock us all up at some point or another.”

According to the court decision, the Pittsburg, New Hampshire father approached the coach on the school parking lot after the Dec. 11, 2012, game. The ruling did not name the coach.

The “defendant was agitated and used profanity,” the decision said. And while talking with the coach, he hit “the car with his left hand,” it said.

The judge in the December 2013 trial found Tracy guilty of disorderly conduct “with intent to cause public inconvenience or annoyance, or recklessly creating a risk thereof ‘engaged in threatening behavior.’” He was sentenced to write a letter of apology and complete 75 hours of community service. Tracy appealed.

The Supreme Court also noted that what was once considered fighting words has changed.

“The use of foul language and vulgar insults is insufficient,” the decision said. “A likelihood of arousing animosity or inflaming anger is insufficient. The likelihood that the listener will feel an impulse to respond angrily or even forcefully is insufficient.”

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