NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                          2018 VT 45

                                          No. 2016-166

State of Vermont                                               Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Chittenden Unit,
                                                               Criminal Division

William Schenk                                                 March Term, 2017


A. Gregory Rainville, J.

Justin Jiron, Acting Chittenden County State’s Attorney, and Aimee Griffin, Deputy State’s
 Attorney, Burlington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and James LaRock
 and Andrew Rome, Law Clerks (On the Brief), Montpelier, for Defendant-Appellant.

James Diaz, Lia Ernst and Julie Kalish, ACLU Foundation of Vermont, Montpelier, for
 Amicus Curiae American Civil Liberties Union Foundation of Vermont.

Thomas J. Donovan, Jr., Attorney General, and Benjamin D. Battles, Assistant Attorney General,
 Montpelier, for Amicus Curiae Vermont Attorney General.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   DOOLEY, J.        Defendant William Schenk was charged with two counts of

disorderly conduct, in violation of 13 V.S.A. § 1026(a)(1), in connection with the distribution of

Ku Klux Klan recruitment flyers in the City of Burlington. For each count, the State charged that

the penalty should be enhanced under 13 V.S.A. § 1455 because the crime was hate-motivated.

Defendant appeals the trial court’s denial of his motion to dismiss the two disorderly conduct

charges and the associated sentence enhancement. We hold that the State failed to establish a
prima facie case because defendant’s conduct conveyed neither the physical nor imminent threat

of harm that we construe the definition of “threatening behavior” to require. Accordingly, we do

not reach defendant’s challenge to the application of the hate-motivated crime sentence

enhancement. We reverse and grant defendant’s motion to dismiss.

          ¶ 2.   The facts may be summarized as follows. In late October 2015, two women in

Burlington found flyers advertising the Ku Klux Klan at their homes. One of the women is

Mexican American; the other is African American. One woman found the flyer folded up and

inserted into the mailbox by her front door, while the other woman found the flyer tucked into her

front door. The one-page flyer depicted a hooded and robed Klansman mounted on a horse and

holding a burning cross. The Confederate flag and the colonial thirteen-star American flag are

shown behind the horse and rider. Across the top of the flyer were the words: “Join the Klan and

Save Our Land!!!!” The bottom of the flyer read “United Northern & Southern Knights of the Ku

Klux Klan” and included a web address. The flyer had no other content. Neither woman saw this

flyer at neighboring homes.

          ¶ 3.   Burlington police canvassed the area where the flyers were found looking for other

flyers, though they were unable to speak with some residents because those residents were not at

home. Police also reached out through social media and the local news to determine whether any

other flyers had been found. The only other reported sighting was at a local copy store, where an

employee reported finding the flyer in one of the store’s copy machines.            Police viewed

surveillance camera footage from the store and were able to identify defendant. The investigating

detective then contacted defendant. Defendant admitted to distributing the flyers and explained

that he is a Kleagle, a recruiter for the Ku Klux Klan. Defendant told the detective that he had

distributed a total of thirty to forty flyers in neighborhoods that defendant described as “more

white.”



                                                 2
       ¶ 4.    The State charged defendant with two counts of disorderly conduct under 13 V.S.A.

§ 1026(a)(1), which states that:

                 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 . . . engages in fighting or in violent, tumultuous, or
               threatening behavior . . . .

For each count, the charging information specifically alleged that defendant had “recklessly

created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO

WIT, by anonymously placing a flyer endorsing the Ku Klux Klan.” The State also sought a hate

motivated crime sentence enhancement under 13 V.S.A. § 1455.1

       ¶ 5.    Defendant filed a motion to dismiss the charges under Vermont Rule of Criminal

Procedure 12(b)(2)(B), which permits a defendant to raise at any time “a claim that the indictment

or information fails to state an offense.” As the court noted in its decision, the motion to dismiss

for failure to state an offense was essentially converted into a motion to dismiss for lack of a prima

facie case under Rule 12(d). In his motion, defendant argued that his conduct was protected speech

under the U.S. Constitution’s First Amendment and that his speech did not fall into any of the

narrow categories of unprotected speech, such as true threats. The trial court held an evidentiary

hearing on defendant’s motion at which the two alleged victims and the investigating police officer

testified. The court applied the standard for whether the State demonstrated a prima facie case:

“whether, taking the evidence in the light most favorable to the State and excluding modifying

evidence, the State has produced evidence fairly and reasonably tending to show the defendant

guilty beyond a reasonable doubt.” State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999)

(quotation omitted). The court concluded in a written order that defendant’s conduct was the kind



       1
          13 V.S.A. § 1455 applies when the person has committed “any crime” and the conduct
involved is “maliciously motivated by the victim’s actual or perceived race, color, religion,
national origin, sex, ancestry, age, service in the U.S. Armed Forces, disability as defined by 21
V.S.A. § 495d(5), sexual orientation, or gender identity.” The effect of a determination that the
crime was hate-motivated is to enhance the maximum sentence for the crime.
                                                  3
of threatening behavior proscribed by 13 V.S.A. § 1026(a)(1), the disorderly conduct statute. The

court correctly noted that this Court has construed this statute such that correct application of the

threatening behavior provision steers away from constitutional infirmity. See State v. Albarelli,

2011 VT 24, 189 Vt. 293, 19 A.3d 130. The court read Albarelli to list five factors, including:

(1) whether the conduct would be considered threatening to a reasonable witness; (2) whether the

conduct was directed at a particular person; (3) whether the conduct included only speech or also

included a significant physical component; (4) whether the conduct carried a strong implication of

imminent harm to the victim; and (5) whether the conduct conveyed the charged level of intent to

harm, in this case, recklessness.

       ¶ 6.    The court considered each of these factors in turn, concluding that each weighed

against dismissal. The court found it particularly persuasive that defendant had entered the

curtilage of each alleged victim’s home, an area that the court noted typically bears a heightened

expectation of privacy. The court’s decision also placed great weight on the content of the flyers

distributed by defendant, reasoning for example that because “the Klan name and imagery,

particularly the image of a burning cross, implies impending harm,” defendant’s conduct carried a

strong implication of harm. The court summarized its decision as follows: “[T]he nature of the

flyer and placement of the flyer in a part of the complaining witnesses’ homes, where the recipients

are members of an ethnic group historically targeted for violence by the Klan, results in the

conclusion that the Defendant used the flyer as a tool to convey a strong message of intimidation

and the potential for harm.”

       ¶ 7.    Following the trial court’s denial of his motion to dismiss, defendant entered a

conditional guilty plea, reserving the right to appeal the trial court’s decision. Defendant was

sentenced to concurrent terms of 119 to 120 days, with credit for time served. This appeal

followed.



                                                 4
       ¶ 8.    On appeal, defendant raises both facial and as-applied constitutional arguments. He

essentially asks this Court to hold that either the disorderly conduct statute reaches only physical

behavior, and speech can never serve as the basis for a charge under the statute, or that the statute

can reach speech and, as such, either unconstitutionally regulates free speech under the First

Amendment or prohibits only unprotected true threats. If the statute does reach true threats,

defendant argues that his speech does not convey the imminent harm that defendant argues is

necessary to find a true threat under U.S. Supreme Court caselaw.

       ¶ 9.    It is fair to say from the briefing that the parties center their arguments on whether

defendant’s conduct can be found to involve a true threat such that defendant’s speech was not

protected by the First Amendment to the U.S. Constitution. The U.S. Supreme Court has held in

two main cases that true threats are not constitutionally protected: Watts v. United States, 394 U.S.

705 (1969) (per curiam), and Virginia v. Black, 538 U.S. 343 (2003). Watts is brief and generally

provides that speech constituting a true threat is not protected by the First Amendment but offers

little explanation of what constitutes a true threat. Watts, 394 U.S. at 707-08. Virginia v. Black

provides some more guidance on the definition of a true threat: “ ‘True threats’ encompass those

statements where the speaker means to communicate a serious expression of an intent to commit

an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at

359 (plurality opinion). The decision goes on:

               [A] prohibition on true threats “protect[s] individuals from the fear
               of violence” and “from the disruption that fear engenders,” in
               addition to protecting people “from the possibility that the
               threatened violence will occur.” Intimidation in the constitutionally
               proscribable sense of the word is a type of true threat, where a
               speaker directs a threat to a person or group of persons with the
               intent of placing the victim in fear of bodily harm or death.
               Respondents do not contest that some cross burnings fit within this
               meaning of intimidating speech, and rightly so. . . . [T]he history of
               cross burning in this country shows that cross burning is often
               intimidating, intended to create a pervasive fear in victims that they
               are a target of violence.

Id. at 360 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)).
                                                  5
       ¶ 10.   We cannot decide this case on the constitutional issues raised by the parties unless

it is clear that the State has made out a prima facie case that defendant has violated the statute

under which he is charged. In arguing the constitutional question, the parties are assuming that a

true threat will violate the statute. We must examine this assumption. This method of proceeding

is required by our policy to decide cases on nonconstitutional grounds if possible, and to adopt a

construction of the statute that avoids constitutional deficiencies. See State v. Read, 165 Vt. 141,

146, 680 A.2d 944, 947 (1996) (“[W]e will not reach challenges based on facial unconstitutionality

if there is a readily apparent construction that suggests itself as a vehicle for rehabilitating the

statute.” (quotation and alteration omitted)).

       ¶ 11.   Defendant is accused of threatening behavior. We have relevant decisions of this

Court in two contexts explaining the meaning of “threatening behavior.” The first is decisions

construing this language in cases brought under the statute before us here, 13 V.S.A. § 1026(a)(1).

In construing this statute, we have held that behavior is threatening when it communicates a

threat—“[a] threat is a communicated intent to inflict harm on person or property.” State v. Cole,

150 Vt. 453, 456, 554 A.2d 253, 255 (1988).

       ¶ 12.   The most recent decision construing this language is State v. Albarelli, in which the

defendant was charged with disorderly conduct in violation of 13 V.S.A. § 1026(a)(1). In

Albarelli, the defendant was charged under the same prong of the disorderly conduct statute as

defendant here—with threatening behavior—after he approached a “Vermonters for Hope” table

on the Church Street Mall in Burlington and began “ranting about the Obama candidacy.” His

hands were in his pockets for most of the time, though occasionally he “gestur[ed] wildly.” This

behavior lasted for approximately twenty minutes. Albarelli, 2011 VT 24, ¶ 2. The table

volunteers testified that they felt threatened and nervous, and that they found the defendant’s

conduct disruptive.



                                                 6
       ¶ 13.   Albarelli went further than earlier decisions in describing the elements of the crime.

We noted that “[d]isorderly conduct statutes have long raised free speech concerns.” 2011 VT 24,

¶ 9. To avoid constitutional infirmity “the language of the statute [prohibiting threatening

behavior] properly interpreted proscribes conduct, not speech, and therefore does not penalize

speech.” Id. Further, we held that “threatening behavior” creates an objective standard—whether

a reasonable person would conclude a defendant’s conduct was threatening—not a subjective

standard—whether the recipient of a defendant’s allegedly threatening behavior perceived that

behavior as a threat. Id. ¶¶ 13-14. Thus, the reaction of the “table volunteers” was irrelevant to

whether the defendant committed the crime in Albarelli. Although the decision did not specify

required elements of threatening behavior, it relied upon the absence of circumstances that are

typically relied upon to find guilt. These include whether the threatening behavior was directed at

a particular person, the threatening behavior contained a significant physical component, the strong

implication that harm may come to the victim, and a comment or act coupled with an aggressive

move toward the victim. Id. ¶¶ 21-23. In concluding that the defendant could not be found guilty

of the crime, the Court stated that “[d]efendant did not, however, direct threats against anyone, nor

did he physically touch them, attempt to touch them, or threaten to touch them. He did not convey

any intent to harm another person.” Id. ¶ 24.

       ¶ 14.   In the second context in which we have considered “threatening behavior,” we have

several times over considered whether a probationer has violated a condition of probation

prohibiting him or her from engaging in threatening behavior. One of these cases, decided shortly

after Albarelli, in particular defines the contours of expressive conduct as threatening behavior. In

State v. Sanville, we held that this probation condition was impermissibly vague as applied to the

charged violation in that case. 2011 VT 34, ¶ 10, 189 Vt. 626, 22 A.3d 450 (mem.). The Sanville

probationer was in a dispute with the landlord of his mobile home, and the landlord began eviction

proceedings. The probationer was charged with violating the threatening behavior condition after

                                                 7
he shouted at his landlord, including telling the landlord that he would burn down the mobile home

and “kick [landlord and her husband’s] butts.” Id. ¶ 3 (alteration in original). The probationer did

not make any physical gesture toward his landlord, though the landlord did state that the

probationer would “start to get huffy.” Id. We held that the probationer could not have had notice

that his behavior would violate the condition prohibiting threatening behavior because his behavior

did not meet our caselaw’s standard for threatening behavior—the behavior “did not necessarily

‘communicate intent to inflict physical or other harm.’ ” Id. ¶ 12 (quoting State v. Ashley, 161 Vt.

65, 72, 632 A.2d 1368, 1372 (1993)).

       ¶ 15.   Sanville is particularly significant because the State argued that the probationer had

committed the crime of disorderly conduct under 13 V.S.A. § 1026(a)(1) by engaging in

threatening behavior, and that this crime constituted the basis for his probation violation. Id. ¶ 12.

We rejected that argument, holding that the verbal threats did not violate the statute because the

statute proscribes conduct, not speech, citing Albarelli.2 Id. Sanville is a controlling precedent for

the question before us today.

       ¶ 16.   Two other cases addressing the same probation condition are related to Sanville,

but neither is helpful to the question before us today. See State v. Johnstone, 2013 VT 57, 194 Vt.

230, 75 A.3d 642 (holding condition prohibiting threatening behavior not violated where

probationer was alleged to have violated condition when overheard telling bystander that his

probation officer would “end up in a body bag” but statement was not communicated directly to

probation officer); State v. Miles, 2011 VT 6, 189 Vt. 564, 15 A.3d 596 (mem.) (holding condition

prohibiting threatening behavior not violated because objectively reasonable person would not

judge message as serious threat to harm where probationer was charged with violating condition

after he told mental health nurse, while he was incarcerated in mental health unit of correctional


       2
          The dissent finds Sanville unimportant because it is a probation violation case. We
disagree. It construes § 1026(a)(1) in a manner directly contrary to the dissent’s construction. To
adopt the dissent’s position, we would have to overrule Sanville.
                                                8
center, that he intended to kill one Bill Brown who, probationer claimed, “was getting into his head

through thoughts and the television”).

       ¶ 17.   Johnstone noted that Sanville had not specifically addressed whether pure speech

could violate the probation condition, and it refused to answer that question, but nonetheless

narrowed the meaning of the condition to apply only to behavior that was intended to put the target

of the threat in fear of harm. Id. ¶ 17. It did not address whether defendant’s actions could be

found to violate the criminal statute, § 1026(a)(1), and is not inconsistent with Sanville.

       ¶ 18.   Miles preceded Sanville. Like Johnstone, it noted that we had not decided whether

speech alone could violate the probation condition prohibiting threatening behavior and declined

to address that question. 2011 VT 6, ¶ 8. Also as in Johnstone, we concluded that the trial court

could not find that the defendant intended to put the target of the threat in fear of bodily harm

because the defendant was delusional and there was no evidence that the target existed or that the

threat was real. Id. Finally, like Johnstone, Miles did not address whether defendant’s verbal

threats could be found to have violated the criminal statute, 13 V.S.A. § 1026(a)(1).

       ¶ 19.   There are also relevant and helpful decisions from courts in other jurisdictions. As

we explained in Cole, much of the language of § 1026 was derived from § 250.2(1) of the Model

Penal Code, including a variant of the “threatening behavior” language.3 150 Vt. at 455, 554 A.2d

at 255; see also Read, 165 Vt. at 147, 680 A.2d at 948 (noting that “[i]n 1972, the Legislature

amended Vermont’s ‘breach of the peace’ statute to follow the ‘disorderly conduct’ language of



       3
          The relevant section of the Model Penal Code has language that significantly differs from
that enacted by the Vermont Legislature in § 1026(a)(1). The Model Penal Code section provides
that a person is guilty of disorderly conduct if, “with purpose to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof,” the person “engages in fighting or
threatening, or in violent or tumultuous behavior.” Model Penal Code § 250.2(a). As the dissent
acknowledges, the free-standing word “threatening” does not modify the word “behavior” in the
Model Penal Code provision as it clearly does in § 1026(a)(1). Without the tie to behavior, we
acknowledge that the statement in the Commentary that the statute covers speech alone is
consistent with the statutory language. It is the tie to behavior in § 1026(a)(1) that leads to a
different result.
                                                9
Model Penal Code § 250.2(1)”). As a result, many states have statutes that use this or similar

language to define crimes of disorderly conduct or breach of the peace. See Albarelli, 2011 VT

24, ¶ 9 (noting several states have modeled disorderly conduct statutes after Model Penal Code

language and listing examples).

       ¶ 20.   Cases from two states—Oregon and Connecticut—are particularly helpful in

addressing the statutory construction issue before us because in both states, the statutory language

is identical to that in 13 V.S.A. § 1026(a)(1).4 In Oregon, the leading case is State v. Cantwell,

676 P.2d 353 (Or. Ct. App. 1984), one of the cases we relied on in Albarelli for the proposition

that § 1026(a)(1) criminalizes behavior, not speech. See Albarelli, 2011 VT 24, ¶ 9. The issue in

Cantwell was whether the threatening behavior language of the Oregon disorderly conduct statute

was overbroad in violation of the Oregon Constitution. 676 P.2d at 356-57. The court held the

language was not overbroad, in part by adopting a narrowing interpretation of the statutory

language:

                We next consider defendants’ contention that [the disorderly
               conduct statute] is overbroad in violation of [the Oregon
               Constitution], and, if so, whether a saving construction is possible.
               A criminal law is overbroad if it purports to reach activities that are
               constitutionally protected. [The statute] makes it a crime to engage
               in “fighting or in violent, tumultuous or threatening behavior” with
               the intent to cause, or recklessly creating a risk of, public
               inconvenience, annoyance or alarm. Defendants argue that, under
               certain circumstances, “behavior” could include actual or symbolic
               constitutionally-protected speech. We do not read the statute to
               encompass speech in the term “behavior,” but construe it to refer
               only to physical acts of violence. . . . . “[F]ighting” and “violent,
               tumultuous or threatening behavior” describe physical acts of
               aggression, not speech, and in prohibiting such physical acts [the
               statute] does not run afoul of [the Oregon Constitution].

               ....

               We hold that [the statute] makes unlawful only the use of physical
               force or physical conduct which is immediately likely to produce the

       4
         The majority of appellate decisions construing statutory language based at least in part
on § 250.2(1) of the Model Penal Code come from these two states.

                                                 10
               use of such force and which is intended to create or recklessly
               creates a risk of public inconvenience, annoyance or alarm.

Id. (citations omitted).5 Since Cantwell, the Oregon courts have consistently ruled that threatening

behavior cannot be proven by speech alone. See State v. Hosley, 388 P.3d 387, 389 (Or. Ct. App.

2016) (describing Oregon decisions); State v. Wade, 377 P.3d 660, 663 (Or. Ct. App. 2016); State

v. Richardson, 370 P.3d 548, 551-52 (Or. Ct. App. 2016); State v. Kreft, 346 P.3d 1294, 1298 (Or.

Ct. App. 2015); State v. Miller, 203 P.3d 319, 321-22 (Or. Ct. App. 2009); State v. Atwood, 98

P.3d 751, 755-56 (Or. Ct. App. 2004); State ex rel. Juvenile Dep’t of Union Cty v. Krieger, 33

P.3d 351, 352-53 (Or. Ct. App. 2000).

       ¶ 21.   Hosley is instructive in applying the construction of the Oregon disorderly conduct

statute. The defendant in that case, while walking in front of a neighbor’s yard, talked with and

picked up and hugged the neighbor’s seven-year-old daughter and became emotional in doing so.

He said he wanted a girl as pretty as her. A day later, the defendant placed a letter on the neighbor’s

porch, which thanked the neighbor for his understanding in a difficult time, but also included a

page containing a “promise,” with a signature line for the young girl and a signature line on which

the defendant had already signed his name. Above the signature lines, the page set out a promise

that “[i]f any boy or older man ever touches my privates or hurts me in any bad way, I promise I

will tell my daddy.” Hosley, 388 P.3d at 388 (alteration omitted).

       ¶ 22.   The Oregon court held that neither defendant’s actions nor his letter met the

standard of physical force or physical conduct which is immediately likely to produce the use of

physical force. Id. at 390. With respect to the argument that the physical act was the delivery of

the letter to the neighbor’s porch, the court held:

               [W]e reject the state’s contention that the communicative act of
               leaving a letter can support defendant’s disorderly conduct

       5
          In State v. Begins, we relied upon the second holding of Cantwell that the statute was
not void for vagueness. 147 Vt. 45, 48, 509 A.2d 1007, 1009 (1986). That holding also relies
upon the narrowing construction of the statute as set out in the text above. See Cantwell, 676 P.2d
at 357.
                                                11
               conviction. The statute does not reach physical conduct that is
               actual but incidental to a defendant’s speech. We have specifically
               exempted physical acts that are a common method of gaining
               someone’s attention, such as banging on a door and shouting for
               someone to open it. When defendant left the letter on T’s porch, he
               engaged in a common method of gaining someone’s attention, and
               that communicative act is not proscribed by [the disorderly conduct
               statute].

Id. at 389-90 (citations and quotations omitted).

       ¶ 23.   In Connecticut, the critical decision is State v. Lo Sacco, a case that involves the

same disorderly conduct language as 13 V.S.A. § 1026(a)(1) in the context of a domestic violence

incident. 531 A.2d 184 (Conn. Ct. App. 1987). The court reached its interpretation of threatening

behavior as follows:

                 “Violent” is defined as “characterized by extreme force” and
               “furious or vehement to the point of being improper, unjust, or
               illegal.” “Threatening” is defined as a “promise [of] punishment”
               or, “to give signs of the approach of (something evil or unpleasant).”
               When two or more words are grouped together, it is possible to
               ascertain the meaning of a particular word by reference to its
               relationship with other associated words and phrases under the
               doctrine of noscitur a sociis. Placed within the context of the other
               words in the statute, the word “threatening” takes on a more
               ominous tone. The statute proscribes “engaging in fighting or in
               violent, tumultuous, or threatening behavior.” In State v. Duhan, the
               Appellate Session of the Superior Court defined “tumultuous” as
               “riotous” and “turbulent.” Fighting, by its plain meaning, involves
               physical force. We conclude that the language of [the disorderly
               conduct statute] involved in this case, namely, “violent or
               threatening behavior,” evinces a legislative intent to proscribe
               conduct which actually involves physical violence or portends
               imminent physical violence.

Lo Sacco, 531 A.2d at 189-90 (citations and quotations omitted). The reasoning and decision of

the court in Lo Sacco was endorsed by the Connecticut Supreme Court in State v. Indrisano in

order to hold that the statute as interpreted was not unconstitutionally vague. 640 A.2d 986, 995

(Conn. 1994). In State v. Szymkiewicz, the Connecticut Supreme Court further explained its

construction of the disorderly conduct statute by holding that a conviction for threatening behavior

could be upheld if the offending conduct was pure speech without a physical component but only

                                                12
if the speech involved “fighting words.” 678 A.2d 473, 478 (Conn. 1996). It defined fighting

words as “speech that has a direct tendency to cause imminent acts of violence or an immediate

breach of the peace. Such speech must be of such a nature that it is ‘likely to provoke the average

person to retaliation.’ ” Id. at 478 (quoting Texas v. Johnson, 491 U.S. 397, 409 (1989)); see also

State v. Baccala, 163 A.3d 1, 13, 15-16 (Conn. 2017) (reaffirming Szymkiewicz, but holding that

customer angrily calling supermarket manager “fat ugly bitch” and “cunt” and saying “fuck you,

you’re not a manager” was not disorderly conduct because terms were not fighting words).

       ¶ 24.   The courts in Connecticut and Oregon reached essentially the same statutory

construction but for different reasons. The Oregon court adopted a narrowing construction limiting

the reach of the statute to improper conduct in order to hold the statute was not vague or

overbroad.6    The Connecticut court adopted its construction based on normal statutory


       6
           The dissent’s argument that the narrowing construction adopted by the Oregon courts is
unnecessary is premised on the unspoken conclusion that the only issue is whether the statute is
overbroad. We relied upon the construction of the language in Cantwell to hold that the statute
was not void for vagueness with respect to § 1026’s prefatory language. See State v. Begins, 147
Vt. 45, 48, 509 A.2d 1007, 1009 (1986) (noting Cantwell held statute not void for vagueness where
fighting or violent, tumultuous, or threatening behavior was intended to create or recklessly created
risk of public inconvenience, annoyance, or harm). Certainly, our history with respect to the
“threatening behavior” language demonstrates continuing concern over the difficulties in
interpreting the language. See Johnstone, 2013 VT 57, ¶¶ 20-21 (Dooley, J., concurring). The
dissent’s solution, to incorporate the true threats doctrine into the statute, makes the interpretation
of the statutory language as applied to pure speech even more uncertain. The U.S. Supreme Court
has never adopted a comprehensive definition of a true threat, and it is not a term with a historic
and well-developed meaning. The U.S. Supreme Court’s guidance is limited to a few sentences
in Virginia v. Black. Thus, we must look to decisions in other jurisdictions, many of which are
conflicting, to develop an adequate definition and scope to apply to individual cases.

       A sampling of cases, including some of those cited by the dissent, illustrates this point. For
example, in United States v. Turner, the Second Circuit held that a true threat can be both
“conditional and inexplicit.” 720 F.3d 411, 424 (2013). The court reiterated its own prior
precedent to the effect that “ ‘an absence of explicitly threatening language does not preclude the
finding of a threat[,] and, of course, a conditional threat—e.g., ‘your money or your life’—is
nonetheless a threat.’ ” Id. (alteration omitted) (quoting United States v. Malik, 16 F.3d 45, 49 (2d
Cir. 1994)).

        In contrast, the Third Circuit has interpreted Watts v. United States to require that a true
threat be unconditional. That court, writing six years after Virginia v. Black, cited Watts for the
premise that “while advocating violence that is not imminent and unlikely to occur is protected,
                                                 13
interpretation methodology, although the Connecticut Supreme Court in Indrisano adopted the

construction in part to respond to a vagueness challenge to the statute. We agree with both

rationales for reaching this construction.

       ¶ 25.   There is also a third reason for us to adopt this construction. As we noted in Cole,

§ 1026 is really “a criminal public nuisance statute.” 150 Vt. at 455-56, 554 A.2d at 255. This is



speech that constitutes a ‘true threat’ is not.” United States v. Fullmer, 584 F.3d 132, 154 (2009)
(citing Watts, 394 U.S. at 708). This language suggests that speech loses constitutional protection
under the doctrine of true threats only if the speech conveys a threat both imminent and likely to
occur. This reading is supported by the Fullmer court’s decision, which examined the context of
the threats at issue in that case and concluded that “[d]efendants used past incidents to instill fear
in future targets,” and “given the success of the campaign in the past, including the destruction of
private property and the telecommunication attacks on various companies, the implied threats were
not conditional, and this speech rightly instilled fear in the listeners.” Id. at 156 (emphasis added).
As the court explained, the defendants’ actions met “the standard of a ‘true threat’ as articulated
in Watts.” Id.

       Fullmer does not cite or discuss Black in its true threats analysis. Indeed, not all recent
U.S. Supreme Court First Amendment cases list true threats among the categories of unprotected
speech. In United States v. Stevens, the Court was asked to rule that depictions of animal cruelty
were a categorically unprotected class of speech. 559 U.S. 460 (2010). The Court wrote that:

                 From 1791 to the present, . . . the First Amendment has permitted
               restrictions upon the content of speech in a few limited areas, and
               has never included a freedom to disregard these traditional
               limitations. These historical and traditional categories long familiar
               to the bar—including obscenity, defamation, fraud, incitement, and
               speech integral to criminal conduct—are well-defined and narrowly
               limited classes of speech, the prevention and punishment of which
               have never been thought to raise any Constitutional problem.

Stevens, 559 U.S. at 468-69 (quotations, citations, and alterations omitted); see also Brown v.
Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (listing limited areas of unprotected speech “such
as obscenity, incitement, and fighting words” (citations omitted)). But see United States v.
Alvarez, 567 U.S. 709, 717-18 (2012) (citing Watts and including true threats among categories
of unprotected speech). We do not read too much into the Court’s omission of true threats in the
language above. The point is simply that this omission coupled with at least one circuit’s reliance
on Watts rather than Black for the definition of a true threat supports construing § 1026(a)(1)’s
threatening behavior provision such that the statute avoids the constitutional question.

       The situation here is much different from that in Read, 165 Vt. at 148, 680 A.2d at 948,
which narrowed the term “abusive language” in 13 V.S.A. § 1026(3) to fighting words, a well-
developed and understood concept in American law.

                                                  14
shown by the statute’s element of “public inconvenience, or annoyance,” the statute’s placement

in the Chapter on “Breach of the Peace; Disturbances,” 13 V.S.A. Ch. 19, and the name of the

crime as “Disorderly Conduct.” Thus, the statute’s intent is less about protecting individuals from

threats and more about protecting the public from breaches of the public order caused by threats.

       ¶ 26.   In fact, Vermont has a general criminal statute that defines a misdemeanor crime of

threats of violence to persons, but defendant was not charged under it.7 Section 1702 of Title 13

is entitled “Criminal threatening” and provides:



       7
           This statute became effective on July 1, 2016. See 2015, No. 162 (Adj. Sess.), §§ 6b, 7.
Because defendant was not charged under this statute, and, given the timing of the charge in this
case and § 1702’s enactment date, could not have been charged under this statute, we do not
address whether the State has shown a prima facie case that defendant violated it. We are unwilling
also to speculate, as the dissent does, that this statute is too narrow to cover threats to the public.
We note, for example, that a threat to explode a bomb in a shopping mall is a threat to harm the
persons who are in it when the threat is made. Further, § 1702 indicates that the Legislature is less
concerned with a threat that the person who utters it cannot carry out. The inability to carry out
the threat is an affirmative defense under the statute. See 13 V.S.A. § 1702(f). What the dissent
sees as an unexplained gap in coverage may be a legislative decision not to extend the coverage as
far as the dissent would want.

         Likewise, the “mixed bag” that the dissent sees in the Legislature’s use of the words
“threat” and “threatening behavior” across several statutes, post, ¶ 44, may actually indicate that
these terms are used consistently across statutes. Three of the statutes discussed by the dissent use
the word “threat” rather than “threatening behavior,” and each of these three references can be
understood to refer to a pure speech threat, with no accompanying physical conduct. First, 13
V.S.A. § 1027(a) provides that a person commits the offense of disturbing the peace by use of
telephonic or other electronic communication if the person, “with intent to . . . threaten . . . makes
contact by means of a telephone or other electronic communication with another and . . . threatens
to inflict injury or physical harm to the person or property of any person.” Given that this statute’s
reach is limited to threats conveyed by either telephone or electronic communication—i.e., through
media that by its nature is not dependent on in-person contact between perpetrator and subject—it
would be illogical to require a physical component to a threat for purposes of this statute. Thus,
this statute’s reference to threats rather than threatening behavior is consistent with our
interpretation of threatening behavior under § 1026(a)(1).

         Second, as discussed above, 13 V.S.A. § 1702(a) refers solely to threats, and not to
threatening behavior. And since the Legislature saw fit to expressly limit the application of this
statute to stay within the confines of the First Amendment, see id. § 1702(d)(2), it is reasonable to
conclude that § 1702’s reference to threats is meant to address threats conveyed through speech
without accompanying physical conduct. Thus, § 1702 is also consistent with our interpretation
of threatening behavior under § 1026(a)(1). Finally, 13 V.S.A. § 1026a refers to both threats and
threatening behavior, which supports the conclusion that these two terms have two different
                                                  15
               (a) A person shall not by words or conduct knowingly:
                   (1) threaten another person; and
                   (2) as a result of the threat, place the other person in reasonable
                       apprehension of death or serious bodily injury.
               (b) A person who violates subsection (a) of this section shall be
                   imprisoned not more than one year or fined not more than
                   $1000.00, or both.

The statute goes on to define serious bodily injury as bodily injury that creates “a substantial risk

of death, . . . a substantial loss or impairment of the function of any bodily member or organ; . . . a

substantial impairment of health; . . . or substantial disfigurement.”              Id. § 1702(d)(1)

(incorporating definition of serious bodily injury in 13 V.S.A. § 1021(a)(2)). It also provides that

“ ‘[t]hreat’ and ‘threaten’ shall not include constitutionally protected activity.” Id. § 1702(d)(2).

       ¶ 27.   Our point is that a construction of § 1026(a)(1) that limits the statute’s coverage to

threatening conduct and doesn’t cover threatening speech does not leave our law without a crime

for speech that threatens personal violence. Indeed, the Legislature may have enacted § 1702

based on a concern that the disorderly conduct statute would not prohibit pure speech. Thus,

§ 1702 specifically addresses threatening speech and acknowledges that such a crime can extend

only as far as the First Amendment allows. The presence of this statute is an indication that

“threatening behavior,” as criminalized in § 1026(a)(1) should not extend to threatening speech.

       ¶ 28.   Although the Connecticut court did not rely on this rationale for its decision to

construe the threatening behavior statutes to include threatening speech, we note that the same

situation applies in Connecticut. The Connecticut Legislature has enacted statutes that criminalize

speech that threatens violence to a person, and these statutes have been challenged as inconsistent

with the First Amendment. See Conn. Gen. Stat. Ann. § 53a-181(a)(3) (“A person is guilty of a

breach of the peace . . . when, with intent to cause inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, such person . . . “threatens to commit any crime against another



meanings. Again, this statute is consistent with our reading of threatening behavior under
§ 1026(a)(1).
                                            16
person or such other person’s property”). The Connecticut court has held that these statutes can

be applied only to true threats to stay within constitutional limits. See State v. Krijger, 97 A.3d

946, 956 (Conn. 2014) (holding that conviction under § 53a-181(a)(3) requires state “to prove

beyond a reasonable doubt that [the defendant’s] statements represented a true threat”). The

Connecticut court has not recognized a true-threat requirement with respect to charges of

threatening behavior because that charge under the Lo Sacco construction of the language does

not involve speech.8 Id.

       ¶ 29.   For the reasons stated in Cantwell and Lo Sacco, as well as adherence to our own

precedent in Sanville, we adopt the construction of the term “threatening behavior” in those cases.

We provide the following explanations of this construction’s application.

       ¶ 30.   In Albarelli, we held that the disorderly conduct statute proscribing threatening

behavior “proscribes conduct, not speech, and therefore does not penalize speech.” 2011 VT 24,

¶ 9. In a later paragraph, however, we relied upon a Massachusetts decision to state “[l]anguage

may be treated as a threat to harm a victim, even in the absence of an explicit statement to do so,

‘as long as circumstances support the victim’s fearful or apprehensive response.’ ” Id. ¶ 20

(quoting Commonwealth v. Chou, 741 N.E.2d 17, 22 (Mass. 2001)). These statements are at least

arguably inconsistent, particularly if the latter is interpreted to apply when the “threatened

behavior” is entirely or primarily speech. We clarify the statement that speech can be relevant to

explain whether threatening behavior has occurred but only where the behavior is physical conduct

and not speech. Oregon cases explain this use of speech. See Richardson, 370 P.3d at 551-52

(explaining that Oregon statute “does not reach physical conduct that is actual but incidental to

speech,” including speech that is “a common method of gaining someone’s attention” (quotation

omitted)). For example, a person using one hand to punch the other hand is more likely to be


       8
         After Szymkiewicz, speech can be “threatening behavior,” but only if it contains fighting
words, a requirement different from a true threat. As we explain in the text, we do not adopt this
requirement.
                                                17
engaging in threatening behavior if the physical activity is accompanied by threatening statements

than if not.

        ¶ 31.   We do not adopt the holding of Szymkiewicz that threatening behavior can be

composed of fighting words despite the fact that the behavior is uttering speech. In Read, 165 Vt.

at 148, 680 A.2d at 948, we adopted a construction of the “abusive language” language prong of

13 V.S.A. § 1026(a)(3) that limits the statute’s reach to “fighting words” as defined in Chaplinsky

v. New Hampshire, 315 U.S. 568 (1942). More recently, in State v. Tracy, we questioned the

continued vitality of the fighting words exception. 2015 VT 111, ¶¶ 16-17, 200 Vt. 216, 130 A.3d

196. Thus, we further narrowed the reach of § 1026(a)(3):

                 For these reasons, if § 1026(a)(3) has any continuing force, it is
                necessarily exceedingly narrow in scope. The use of foul language
                and vulgar insults is insufficient. 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. 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.

Id. ¶ 38. Even if the fighting words doctrine has continuing vitality, we would not apply it to the

threatening behavior prong of § 1026, which has a different scope and purpose than the “abusive

language” prong.

        ¶ 32.   The definition of violent or threatening behavior in the Oregon cases—“physical

force or physical conduct which is immediately likely to produce the use of such force”—is very

similar to that in the Connecticut cases—“physical violence or portends imminent physical

violence.” We adopt the Oregon definition, with our explanation that speech can be introduced to

explain or provide context for physical conduct.

        ¶ 33.   We turn now to the trial court’s decision on defendant’s motion to dismiss. We

apply the standard for a prima facie case pursuant to V.R.Cr.P. 12(d)(2). See supra, ¶ 5; State v.

Hutchins, 2005 VT 47, ¶ 6, 178 Vt. 551, 878 A.2d 241 (mem.) (we “determine whether the State

met its burden in demonstrating that it had substantial, admissible evidence as to the elements of
                                               18
the offense challenged by the defendant’s motion” and “we view the evidence in the light most

favorable to the State, and exclude modifying evidence, to determine if the evidence can fairly and

reasonably establish defendant’s guilt beyond a reasonable doubt” (quotation omitted)). Since

defendant’s leaving of the flyers at the homes of the two women constituted speech and not

nonspeech behavior, it does not fall within the disorderly conduct statute, 13 V.S.A. § 1026(a)(1),

which criminalizes conduct that is not speech. The trial court answered the need for a physical

threat by relying on the fact that defendant entered the curtilage of the alleged victims’ homes and

placed the flyer in the recipients’ mailbox or between their doors. We agree with the decision in

Hosley that a method of delivery that is incidental to the speech alleged to be the threat cannot

meet the requirement for physical conduct. See 388 P.3d at 389-90.

       ¶ 34.   Further, even if the statute could be violated by pure speech, the charged conduct

would also need to convey the imminent threat of harm, which the conduct in this case does not.

The flyer is a recruitment solicitation—its overt message is to join the Ku Klux Klan. It contains

no explicit statement of threat. To the extent it conveys a message of personal threat to the

recipient, it is that the Klan will recruit members and inflict harm in the future. The flyer itself is

not “immediately likely to produce” force and harm. Cantwell, 676 P.2d at 357.

       ¶ 35.   For the above reasons, we hold that the State has not demonstrated that it has a

prima facie case that defendant violated 13 V.S.A. § 1026(a)(1). The State’s evidence cannot

establish defendant’s guilt beyond a reasonable doubt. The motion to dismiss the two disorderly

conduct charges must be granted.

       ¶ 36.   We need not reach whether defendant’s conduct included a true threat. Even if

defendant’s speech contained a true threat, it would not violate the statute under which defendant

was charged as we have construed that statute here and as explained above. In reaching this

conclusion, we do recognize that any communication from the Ku Klux Klan complete with

symbols of the Klan, particularly the burning cross, would raise concern and fear in a reasonable

                                                  19
person who is a member of an ethnic or racial minority. We are not ruling today whether the

Legislature can make criminal such action or has done so in a different statute. Our ruling today

is only that defendant’s conduct does not violate the specific statute under which he was charged,

13 V.S.A. § 1026(a)(1).

       ¶ 37.   Because of our decision dismissing the disorderly conduct charges against

defendant, we also need not reach the issues related to the hate-motivated sentence enhancement

provided by 13 V.S.A. § 1455.

       Reversed.

                                                 FOR THE COURT:



                                                 Associate Justice


       ¶ 38.   ROBINSON, J., dissenting. Although I am sympathetic to the goal of narrowing

a criminal statute to avoid constitutional infirmity, I believe the majority’s construction of the term

“threatening behavior” is excessively narrow because it precludes prosecution for a serious

expression of an intent to commit acts of unlawful violence to a particular individual or group of

individuals uttered in public with an intent to cause public inconvenience or annoyance if that

threat is unaccompanied by a physical gesture. I would construe the definition of “threatening

behavior” in the statute to reach a communication of an intent to inflict physical or other harm—

even that which takes the form of threatening words unaccompanied by a physical motion beyond

the act of speaking—to the extent that in its overall context such threatening behavior, including

its expressive component, is not constitutionally protected. Our standard of review at this stage of

the proceedings is significant. The question for us on appeal is not how this Court construes the

evidence but whether a reasonable jury could find defendant guilty if it viewed the record evidence,

and the inferences from that evidence, in the light most favorable to the State. Given the

combination of three critical factors—that the communications in this case were targeted
                                            20
exclusively at two minority residents in a predominantly white, nonhispanic neighborhood, they

invoked powerful symbols of violence against racial and ethnic minorities, and they were placed

inside or next to the screen doors of two targeted individuals’ homes—a reasonable and properly

instructed jury could conclude that the threats in this case were not constitutionally protected.

Accordingly, I would affirm.

  I. In Some Contexts Stated Threats Can Constitute “Threatening Behavior” Under 13 V.S.A
          § 1026(a) Consistent with the Legislature’s Intent and the First Amendment

       ¶ 39.   The majority’s conclusion that the “threatening behavior” prong of the disorderly

conduct statute reaches only physical actions,9 and that any accompanying words are relevant only

insofar as they provide insight as to the meaning of the physical actions, is not supported by our

own prior caselaw, the plain language of the statute, the statutory scheme more broadly, the

Legislature’s intent, or the constitutional imperative driving the majority’s construction.

       ¶ 40.   In prior cases, our focus in assessing threatening behavior has not been the presence

or absence of a physical component but the presence or absence of a “ ‘communicated intent to

inflict physical or other harm.’ ” State v. Sanville, 2011 VT 34, ¶ 9, 189 Vt. 626, 22 A.3d 450

(quoting State v. Ashley, 161 Vt. 65, 72, 632 A.2d 1368, 1372 (1993)); see State v. Cole, 150 Vt.

453, 456, 554 A.2d 253, 255 (1988) (describing “[t]hreatening behavior” as “behavior that



       9
          I am deliberately avoiding the terms “speech” and “conduct” in my discussion, as I find
the speech-conduct distinction as sometimes articulated unhelpful and circular. See, e.g., R.A.V.
v. City of St. Paul, 505 U.S. 377, 386 (1992) (“In other words, the exclusion of ‘fighting words’
from the scope of the First Amendment simply means that, for purposes of that Amendment, the
unprotected features of the words are, despite their verbal character, essentially a ‘nonspeech’
element of communication.”); Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun, J.,
dissenting) (describing defendant’s wearing a jacket bearing the words “fuck the draft” as “mainly
conduct and little speech”). When some courts and commentators describe words that can be
proscribed consistent with the First Amendment as “conduct,” the label takes on the character of
a legal conclusion rather than an empirical description. See generally, Eugene Volokh, Speech as
Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering
Utterances,” and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1347-48 (July 2005) (describing
various rationales courts and commentators have used to describe speech as “conduct” on the basis
of its content and arguing that the only sustainable speech-conduct distinction is that between the
communicative and noncommunicative aspects of speech).
                                                 21
communicates the requisite intent” to “inflict harm on person or property”). We have considered

conduct’s “physical component” in assessing whether the conduct was threatening, and frequently

we have found physical actions to communicate threatening intent.

       ¶ 41.   For example, in State v. Albarelli, we considered a disorderly conduct charge

against a defendant who had engaged in a loud, agitated, and prolonged rant on a public pedestrian

way by a table where individuals were promoting the presidential campaign of then-candidate

Barack Obama. 2011 VT 24, ¶¶ 2-6. We concluded that the evidence was insufficient to support

a conviction for “threatening behavior” because the behavior did not convey an intent to do harm

to another person. Id. ¶ 18. We recognized that “[l]anguage may be treated as a threat to harm a

victim, even in the absence of an explicit statement to do so, as long as circumstances support the

victim’s fearful or apprehensive response” from the perspective of a reasonable person. Id. ¶¶ 14,

20 (quotation omitted). We identified factors to consider in determining whether a defendant has

engaged in “threatening behavior,” including whether the defendant made targeted threats to a

specific person or made threatening physical gestures. Id. ¶ 21. Noting that the defendant in that

case had not made any explicit threats to harm any other person, his conduct was not directed at

any person in particular, and his conduct lacked any “physical component” beyond gesticulating,

this Court concluded that the evidence did not support the charge that he had engaged in

threatening behavior. Id. ¶¶ 22-25. Although we considered the presence or absence of physical

gestures as a factor in determining whether defendant engaged in “threatening behavior,” we

recognized that the critical consideration was the effect of defendant’s behavior on a reasonable

listener. Physical gestures are undoubtedly relevant to a reasonable assessment of the situation,

but we have never said that the physical component, or its absence, is dispositive. Rather, we have




                                                22
focused on the overall context—including the words spoken, the context in which they were

spoken, and any accompanying physical actions—to assess the threat.10

       ¶ 42.   To the extent that they are relevant, our probation condition cases reinforce this

conclusion.11 In State v. Johnstone, we noted that there was “no allegation that defendant knew

that the target of his statements was within earshot” and concluded, without any discussion of the

presence or absence of a physical component, that facts did not indicate “defendant intended to

put his probation officer in fear of harm or to convey a message of actual intent to harm her.” 2013

VT 57, ¶¶ 17-18, 194 Vt. 230, 75 A.3d 642. In State v. Sanville, we recognized that this Court

had not yet decided whether verbal threats can constitute threatening behavior in the context of

probation conditions. 2011 VT 34, ¶ 7, 189 Vt. 626, 22 A.3d 450. However, we did not then

decide the issue, and, as noted above, we applied a standard that defined “threat” as a

“communicated intent to inflict physical or other harm” and “threatening behavior” as “behavior

that communicates the requisite intent.” Id. ¶ 9 (concluding that probationer did not have sufficient

notice that his heated arguments, in which he “mouthed off” inappropriately, would be deemed to

be violent and threatening behavior).12 Likewise, in State v. Miles, we declined to reach the

question because the defendant in that case was being held in the mental health unit of a state

correctional facility, made statements that suggested that he was delusional, and threatened to kill


       10
         For that reason, I find the majority’s attempt to reinterpret Albarelli unpersuasive. Ante,
¶ 30. The Court’s recognition in that case that “[l]anguage may be treated as a threat to harm a
victim” makes total sense when the harm targeted by the statute is the impact of the threat.
       11
           The purpose of the disorderly conduct statute—protecting against a public disturbance—
is different from that of a probation condition—promoting individual rehabilitation. But insofar
as one issue in probation condition cases is whether the prohibition of “threatening behavior” gives
ample notice of what is proscribed, our understanding of “threatening behavior” in the probation
condition context could be illustrative.
       12
           The majority suggests that in Sanville this Court held that verbal threats do not violate
§ 1026(a)(1). I respectfully disagree. The Court in Sanville concluded that the particular threats
at issue in that case did not amount to “violent and threatening behavior” but did not state that
threats of violence communicated through words unaccompanied by physical gestures can never
run afoul of § 1026(a)(1).
                                                23
someone who may or may not have actually been a real person. 2011 VT 6, ¶ 8, 189 Vt. 564, 15

A.3d 596.

       ¶ 43.   Our decisions have been faithful to the plain language of the statute. The everyday

meaning of “threatening behavior” includes making serious threats to cause imminent bodily harm.

Common usage supports the understanding that “threatening behavior” includes standing in the

middle of a crowded pedestrian way and asserting loudly and repeatedly, to nobody in particular

but in a way that reasonably gives rise to fear of bodily harm, that you will detonate a pipe bomb

if people don’t stop and listen. See State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129

(“When interpreting a statute our goal is to give effect to the intent of the Legislature, and to do so

we first look at the plain, ordinary meaning of the statute.” (quotation omitted)). In construing the

statute, we ought not lose sight of this common sense understanding. At most, the Legislature’s

use of the term “threatening behavior” is ambiguous; it is by no means clear that it is limited to

physical actions that convey a threat, as opposed to the expression of words that do the same. It

may well be intended to expand the reach of the statute by including threats that are inferred from

actions rather than exclusively threats that are communicated through words.

       ¶ 44.   On balance, the statutory scheme likewise supports the view that “threatening

behavior” can describe communicated threats unaccompanied by physical gestures, although I

acknowledge that it’s a mixed bag. On the one hand, the Legislature has expressly prohibited

threats in several statutes without describing the offense as “threatening behavior.” See, e.g., 13

V.S.A. § 1027(a) (prohibiting disturbing the peace by electronic communications including threats

“to inflict injury or physical harm to the person or property” of another with intent to “terrify,

intimidate, threaten, harass, or annoy); id. § 1702(a) (prohibiting criminal threatening, defined as

knowingly threatening another person and “plac[ing] that person in reasonable apprehension of

death or serious bodily injury”); id. § 1026a(a) (prohibiting aggravated disorderly conduct offense

including both “threatening behavior” and threats of “bodily injury or serious bodily injury” if

                                                  24
threats or threatening behavior are undertaken as course of conduct with intent to cause person

“inconvenience or annoyance, or to disturb the person’s peace, quiet, or right of privacy”).13

       ¶ 45.   On the other hand, in prohibiting attempts “by physical menace to put another in

fear of imminent serious bodily injury” the Legislature has expressly identified a “physical action”

requirement when it has sought to address threats conveyed through physical actions.               Id.

§ 1023(a)(3); see also Graham v. State, 2006-KA-00518-COA (¶ 16), 967 So. 2d 670, 675 (Miss.

Ct. App. 2007) (“Physical menace demands something more than words.”); Ickes v. Ickes, No. 89-

S-520, 1989 WL 223538, at *2 (Pa. Com. Pl.) (“A ‘menace’ is a threat. A physical menace




       13
            In 2014, the Legislature established the offense of “aggravated disorderly conduct,”
codified at 13 V.S.A. § 1026a. 2013, No. 150 (Adj. Sess.), § 4. This new offense is directed at
many of the actions listed in § 1026, but rather than requiring that they be undertaken with an
intent to cause “public inconvenience or annoyance” or recklessly create a risk thereof, the offense
targets several of the same actions as the disorderly conduct statute—fighting, violent, tumultuous
or threatening behavior, unreasonable noise, etc.—when undertaken as a course of conduct with
the intent to cause a specific person “inconvenience or annoyance,” or “to disturb the person’s
peace, quiet, or right of privacy.” 13 V.S.A. § 1026a. Although the aggravated disorderly conduct
offense tracks many of the elements of the regular disorderly conduct statute, it includes an
additional prong applicable when, with the requisite intent, the actor “threatens bodily injury or
serious bodily injury, or threatens to commit a felony crime of violence.” Id. § 1026a(a)(4). The
addition of this language might suggest that the Legislature in 2014 believed that the existing
disorderly conduct statute, § 1026, did not reach “threats,” but the legislative history does not bear
this out.

        The “threat” element of § 1026a(a)(4) got scant attention through House and Senate
committee hearings, and nobody in either committee testified that the language was added to
expand the limited reach of the “threatening behavior” prong. Instead, the primary goal of the new
offense was to create an offense with greater penalties than the disorderly conduct statute to
address behavior that may not meet all the elements of stalking but is nonetheless targeted at an
individual and involves a course of harassing conduct. The penalty for violating the new statute
is up to 180 days imprisonment or a $2000 fine—more than three times the incarcerative penalty
for ordinary disorderly conduct, first offense, and four times the financial penalty. If anything, the
legislative history suggests a desire to provide the State a broad range of tools, consistent with
constitutional limitations, to combat behavior on the harassment-threat spectrum. See generally
2013, No. 150 (Adj. Sess.), Hearings on S.195 Before Senate Judiciary Comm. and House
Judiciary Comm. (Vt. Feb. 19, 27, 2014, Apr. 11, 2014, May 30, 2014).

                                                 25
therefore would be a physical threat as opposed to a verbal threat directed toward a victim.”

(citation omitted)).14

        ¶ 46.   The reason I conclude that the statutory scheme as a whole supports the view that

the disorderly conduct statute reaches some threats that are unaccompanied by physical gestures if

made with the intent to cause public inconvenience or annoyance is that a contrary construction

would leave a major gap in the statutory scheme. Under the majority’s view, as the majority notes,

Vermont law does prohibit threats against a specific individual without regard to the presence or

absence of physical gestures accompanying the threats. See ante, ¶ 26-27. The private interest in

freedom from targeted threats may be amply protected by other statutes besides 13 V.S.A. § 1026.

See 13 V.S.A. §§ 1026a, § 1027, § 1702. In fact, these other statutory provisions are arguably far

better suited than § 1026 to address defendant’s alleged conduct in this case. But in the context of

threats to the public generally, communicated in words with the requisite intent to cause the kinds

of public disruptions targeted by the disorderly conduct statute, the majority’s construction leaves

the State with no tools for regulating, say, the hypothetical shouted threat to detonate an explosive

in the middle of a crowded pedestrian mall.15 I find it hard to believe that the Legislature has so

comprehensively regulated private threats, and has broadly proscribed public nuisances, but

intended to exempt from prosecution all generalized public threats unaccompanied by physical




        14
           In State v. Gagne, we upheld on plain error review a jury instruction that described the
threat required for “physical menace” to be “a threat, by word or act, to inflict physical injury upon
a person.” 2016 VT 68, ¶¶ 29-32, 202 Vt. 255, 148 A.3d 986. The threat in that “road rage” case
arose from the defendant’s chasing the victims through town, eventually pulling up next to their
truck and pointing a rifle at them, and the defendant’s challenge on appeal focused on whether the
jury instruction properly required the jury to assess the threat of the “physical menace” from the
perspective of a reasonable person. We did not discuss or rule on the trial court’s instruction
suggesting that words could amount to a “physical menace.”
        15
           If a defendant actually possesses such a weapon, this action would support a charge of
aggravated assault with a deadly weapon pursuant to 13 V.S.A. § 1024(a)(5). However, this
charge is only applicable if the defendant is actually armed with such a weapon.
                                                 26
gestures, without regard to the seriousness of the threat, the context in which it is communicated,

or the intended public disruption underlying the threat.

       ¶ 47.   The legislative intent underlying § 1026 supports this view. As we have previously

noted, § 1026 is really a “criminal public nuisance statute.” State v. Cole, 150 Vt. 453, 455-56,

554 A.2d 253, 255 (1988). The statute is based, to a large extent, on the Model Penal Code § 250.2.

We have recognized that “[w]hen our statute is taken from a model act, it is often helpful to

examine the intent behind the model act.” State v. Papazoni, 159 Vt. 578, 581, 622 A.2d 501, 503

(1993). The focus of the Model Penal Code disorderly conduct provision is “those who are

consciously indifferent to the public peace and tranquility,” which is the ultimate target of the

provision. Model Penal Code § 250.2 Commentaries (Am. Law Inst., Official Draft and Revised

Comments 1980). With respect to the prohibition of threatening in the Model Penal Code, the

official commentary explains:

               Because the concept of threatening is not otherwise defined, this
               aspect of the offense reaches any kind of threat, whether verbal or
               physical, that creates risk of public inconvenience, annoyance, or
               alarm. This coverage is broader than [the section of the Model Code
               that] proscribes as a form of assault attempting “by physical menace
               to put another in fear of imminent serious bodily injury.” The
               disorderly conduct provision contains no such limitation on the
               kinds of threats covered, but that breadth is balanced by the
               requirement of purpose or recklessness with respect to creation of a
               public nuisance. Again, the differences between disorderly conduct
               and assault reflect the different rationales of the two offenses and
               the distinct harms at which they are aimed.

Id. cmt. 3 at 331.

       ¶ 48.   There can be no doubt that the Model Penal Code, upon which our disorderly

conduct statute is based, reaches public disruption arising from threatening words. To the extent

that a threat of harm, whether communicated through words, gestures, or both, can be quite




                                                27
disruptive to public order, it falls squarely within the universe of harms the Vermont Legislature

intended to address with the disorderly conduct prohibition.16

        ¶ 49.   By contrast, the majority’s approach—focusing on the presence or absence of

physical movement—hones in on the wrong factor. The public harm from threatening behavior

does not arise from a defendant’s gesticulating while engaging in a threatening tirade; it flows

from the threatening tirade itself. Excluding from the statute’s reach those public threats that are

communicated in words without the accompanying gesticulation would frustrate the purpose of

the statute.

        ¶ 50.   Most important, I believe the majority’s approach to narrowing the statute is both

overinclusive and underinclusive relative to the constitutional considerations that motivate the

majority to narrow the statute in the first place. Even though the majority’s interpretation is at

odds with our caselaw and the statutory language, scheme, and purpose for the reasons set forth

above, I might join in the majority’s attempt to narrow the scope of the statute if its construction

made sense as a way of avoiding conflict with the First Amendment. But by narrowing the statute

based on a factor that has little to do with the underlying purposes of the statute or the relevant


        16
             The relevant section of the Model Penal Code provides that a person is guilty of
disorderly conduct if, “with purpose to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof,” the person “engages in fighting or threatening, or in violent or
tumultuous behavior.” Model Penal Code § 250.2(a). Our statute prohibits actions undertaken
with a similar purpose—although we exclude an intent to cause public “alarm” from the intent
element—and directs the analogous prong of the statute at “engag[ing] in fighting or in violent,
tumultuous, or threatening behavior.” 13 V.S.A. § 1026(a)(1). One can imagine various
explanations for the Vermont Legislature’s rewording of the Model Penal Code language to refer
to “threatening behavior” as opposed to using the term “threatening” as a gerund. Perhaps,
consistent with the majority’s opinion, the Legislature adopted the phrase “threatening behavior”
in order to limit the universe of threats subject to prosecution to only those communicated through
physical actions. Alternatively, and equally plausibly, the Legislature may have intended to be
more expansive than the Model Penal Code by providing that the threats in question may be
communicated by means other than words alone—including by physical gestures or some
combination of words and physical actions. Or perhaps the Vermont Legislature adopted different
phraseology because it found the Model Penal Code language clunky, with no intent to
substantively depart from the Model Penal Code’s description of the scope of the offense. In the
absence of any evidence resolving this question, I cannot ascribe significance to the difference in
wording between the Vermont statute and the Model Penal Code provision on which it is based.
                                                   28
constitutional considerations, the majority has defined out of the statute’s reach much behavior

that can constitutionally be prohibited, and that the Legislature intended to include, while

simultaneously leaving considerable room for constitutional conflict in cases in which a threat is

conveyed through expression other than words.

          ¶ 51.   The U.S. Supreme Court has long recognized that some threatening speech may be

prohibited without offense to the First Amendment. In Watts v. United States, the Court upheld a

constitutional challenge to a statute prohibiting threats against the life of the President of the United

States. 394 U.S. 705, 706 (1969). Consistent with “the commands of the First Amendment,” the

Court explained that in applying the statute a court must distinguish a threat from constitutionally

protected speech. Id. It concluded that a protester’s conditional statement that if he was drafted

to serve in the war he would shoot the President was, in context, political hyperbole and not a true

threat.

          ¶ 52.   More recently, in Virginia v. Black, the Court reaffirmed that among the categories

of expression states may regulate consistent with the Constitution are “true threats,” defined to

“encompass those statements where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular individual or group of individuals.”

538 U.S. 343, 359 (2003) (plurality opinion). The Court explained that a speaker “need not

actually intend to carry out the threat,” because the prohibition on true threats “protects individuals

from the fear of violence and from the disruption that fear engenders, in addition to protecting

people from the possibility that the threatened violence will occur.” Id. at 360 (quotations and

alteration omitted). Considering a statute proscribing intimidation through cross burning, the

Court said, “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true

threat, where a speaker directs a threat to a person or group of persons with the intent of placing

the victim in fear of bodily harm or death.” Id. The Court declined to strike down the statute

insofar as it prohibited cross burning with the intent to intimidate, although it did strike down

                                                   29
convictions under the statute on account of a provision in the statute that the fact of cross burning

alone is facial evidence of an intent to intimidate.

       ¶ 53.   State and federal courts have relied on this test in construing statutes that

criminalize threats, and in evaluating their constitutionality. See, e.g., United States v. Turner, 720

F.3d 411, 421 (2d Cir. 2013) (affirming defendant’s conviction for threatening judges online where

evidence was sufficient to show that his statements were not “political hyperbole,” but violent

threats against the judges lives); United States v. Parr, 545 F.3d 491, 493 (7th Cir. 2008) (affirming

defendant’s conviction for threatening to blow up federal building where he described his plans in

great detail and had history of building bombs and supporting terrorism); In re Robert T., 2008 WI

App 22, ¶¶ 18-19, 746 N.W.2d 564 (evaluating statute prohibiting bomb scares, holding that “true

threats” are not limited to those directed at specific person or group of people and threatening

bodily harm or death); State v. DeLoreto, 827 A.2d 671, 679, 686 (Conn. 2003) (concluding that

in context, defendant’s threats to “kick your punk ass” to two different police officers constituted

true threats subject to prosecution under statute prohibiting breach of peace).

       ¶ 54.   The majority’s holding precludes prosecution under the disorderly conduct statute

for a large swath of true threats that the Legislature can permissibly prohibit consistent with the

First Amendment and which, as argued above, the Legislature intended to proscribe. In particular,

the majority removes from the disorderly conduct statute true threats communicated without an

accompanying physical gesture, even if the other elements of the disorderly conduct statute are

satisfied. Its construction of the statute is far narrower than required by the First Amendment, to

the detriment of the State’s ability to regulate public disturbances occasioned by true threats.

       ¶ 55.   At the same time, the majority’s holding does little to address the serious

constitutional questions that may arise even when a threat is communicated through physical

gestures alone, or in combination with words. What makes a threat threatening—whether it is

communicated through words, physical actions, or some combination of the two—is the substance

                                                  30
and credibility of the communication itself. Even if the State could only prosecute gestures or

physical acts as “threatening behavior,” it’s the expressive content of the gestures or acts that make

them threats. See, e.g., Cole, 150 Vt. at 456-67 (noting that defendant’s “act of grabbing the

flashlight could be found to be threatening behavior, done to communicate the intent to harm”).

Prosecuting someone who delivers a Ku Klux Klan recruitment flyer with a threatening gesture

raises First Amendment concerns, notwithstanding the physical action accompanying the written

communication. Ultimately, what matters—both from the perspective of the goals of the statute

and from the perspective of the First Amendment—is what is communicated by the gesture, words,

or combination thereof—and whether that communication falls within or outside of the protection

of the First Amendment. A raised fist can communicate a threat, but may also act as symbolic

speech. Although the majority succeeds in avoiding these constitutional questions in this case, its

analysis makes them no less inevitable.

       ¶ 56.   In sum, the focus of the disorderly conduct statute is not the physical movements

that convey or accompany the communication of threats; it’s the threats themselves. And the

exception to the U.S. Constitution’s protection of free speech is based on the meaning and

significance of the threats themselves, not the manner in which they are communicated. The factor

relied upon by the majority to limit the scope of § 1026 accomplishes the goal, in this case, of

avoiding difficult constitutional questions, but does so by relying on a factor that has little to do

with anything. For these reasons, I cannot join the majority’s construction of § 1026.

                     II. “Threatening Behavior” Encompasses “True Threats”

       ¶ 57.   To narrow the statute against a facial challenge, I would construe the “threatening

behavior” prong of the disorderly conduct statute consistent with our prior decisions as well as

with the limitations of the First Amendment, as we have done in connection with the “abusive

language” prong of that statute. This construction incorporates ample safeguards for free speech

insofar as it requires, in addition to a “true threat” in the constitutional sense, (1) an intent to

                                                 31
threaten; (2) an objective threat; and (3) a finding of intent, or at least recklessness, with respect to

the public disruption engendered by the threatening behavior.

        ¶ 58.   In construing another provision of the disorderly conduct statute that raises First

Amendment concerns, we have narrowed the reach of that provision to include the activity the

Legislature sought to regulate, but only to the extent permitted under the U.S. Constitution. In

State v. Read, we considered a facial challenge under the First Amendment to the prong of the

disorderly conduct statute addressing “abusive language.” 165 Vt. 141, 680 A.2d 944 (1996). We

noted the longstanding “ ‘tenet of First Amendment law that in determining a facial challenge to a

statute, if it be “readily susceptible” to a narrowing construction that would make it constitutional,

it will be upheld.’ ” Id. at 146, 680 A.2d at 947 (quoting Virginia v. Am. Booksellers Ass’n, 484

U.S. 383, 397 (1988)). And we emphasized our obligation “to narrow and limit the statute in light

of the protections guaranteed by the United States and Vermont constitutions.” Id.; see also State

v. Cantrell, 151 Vt. 130, 134, 558 A.2d 639, 642 (1989) (“Where possible, a statute must be

construed to avoid constitutional infirmities.”). Accordingly, in Read, we held that the “abusive

language” prong of the disorderly conduct statute could only reach abusive language that falls

outside the protection of the First Amendment—namely, “fighting words.” 165 Vt. at 148, 680

A.2d at 948. More recently, in State v. Tracy, we reaffirmed this approach to construction of the

statute, emphasizing that in modern times, speech that would meet the constitutional test for

“fighting words” is rare, if it exists at all. 2015 VT 111, ¶¶ 35-38, 200 Vt. 216, 130 A.3d 196. I

would take the same approach to the “threatening behavior” prong of the disorderly conduct statute

and limit its reach to threatening behavior that may be proscribed under the First Amendment—

including speech that constitutes a “true threat” under the caselaw set forth above.

        ¶ 59.   While this construction is broader than the majority’s construction, at least with

regard to the scope of verbal threats subject to regulation under the statute, its scope is subject to

three important limitations that mitigate the free speech concerns that it raises.

                                                   32
       ¶ 60.   First, whatever state of mind is required relative to the risk of public annoyance or

inconvenience, the speaker of a “true threat” under our disorderly conduct statute must intend to

threaten. We recognized in Cole that the word “threaten” includes “some element of volition,”

namely, “a communicated intent to inflict harm on person or property.” 150 Vt. at 456, 554 A.2d

at 255. Accordingly, although courts are divided as to whether the constitutional test for “true

threats” is an objective standard from the perspective of the speaker, we have already recognized

that under our disorderly conduct statute the speaker must intend to threaten. Compare In re Robert

T., 2008 WI App 22, ¶ 11 (explaining test for true threats “is an objective standard from the

perspectives of both the speaker and listener”), with United States v. Cassel, 408 F.3d 622, 631

(9th Cir. 2005) (concluding that in Black, U.S. Supreme Court established “intent to threaten” as

essential to “constitutionally punishable threat”); see also Parr, 545 F.3d at 499-500 (noting federal

appellate courts are divided on question of whether true threat requires subjective intent on part of

threatener).

       ¶ 61.   Second, whether the content of the threatening communication, taking into account

the full context, rises to the level of a true threat is evaluated from the objective perspective of a

reasonable, similarly situated person, and is not based on the particular response of a recipient of

the threat. See State v. Gagne, 2016 VT 68, ¶ 23, 202 Vt. 255, 148 A.3d 986 (“[W]hether conduct

amounts to a threat is generally discerned from the perspective of a reasonable person under similar

circumstances.”); see also United States v. Bagdasarian, 652 F.3d 1113,1118-23 (9th Cir. 2011)

(explaining that analysis of threats includes both subjective and objective considerations: whether

reasonable person hearing statement would understand it as serious expression of intention to

inflict bodily harm, and whether defendant had subjective intent to communicate threat);

Brewington v. State, 7 N.E.3d 946, 963, 969 (Ind. 2014) (considering both whether speaker

subjectively intends threat to place victim in fear of bodily harm or death, and whether reasonable



                                                 33
person, similarly situated to victims, would fear for their safety or that of someone close to them

on account of threat).

        ¶ 62.   Finally, in addition to the intent to convey a threat, the speaker must also intend to

cause public inconvenience or annoyance, or recklessly create such a risk. This requirement keeps

the ultimate focus of the disorderly conduct statute aligned with its purpose: to protect against

public disturbances more generally. See supra,¶¶ 46-48.

        ¶ 63.   The disorderly conduct statute requires reckless or intentional creation of a public

inconvenience or annoyance. We have on several occasions addressed the “public annoyance”

requirement. In State v. Lund, we upheld the disorderly conduct conviction of a defendant who

yelled at a sheriff and attempted to bite the sheriff’s hand at the sheriff’s office and local jail. 144

Vt. 171, 173-74, 475 A.2d 1055, 1057-58 (1987), overruled on other grounds by State v. Begins,

148 Vt. 186, 531 A.2d 595 (1987). In response to the defendant’s argument that the statute did

not apply because members of the public were not present, we explained, “[p]ublic is defined as a

place open to common or general use.” Id. 144 Vt. at 179, 475 A.2d at 1060-61 (quotation

omitted). Because the sheriff’s office fell within this definition, the statute applied. We reiterated

this analysis in Cole, concluding that defendant’s act of grabbing a flashlight from a law

enforcement officer alongside a public highway was sufficiently public because a public roadway

“is clearly open to general and common use.” 150 Vt. at 456, 554 A.2d at 255. “Public” is not

defined in Vermont’s disorderly conduct statute, but is defined in the Model Penal Code section

upon which our statute is based as “affecting or likely to affect persons in a place to which the

public or a substantial group has access; among the places included are highways, transport

facilities, schools, prisons, apartment houses, places of business or amusement, or any

neighborhood.” Model Penal Code § 250.2(1)(c). Public disturbances may occur “in such

privately owned facilities as stores, apartment houses, and theaters, but the Model Code does not

follow prior statutes making it criminal to disturb the “peace and quiet of any person.” Id. cmt. 2

                                                  34
at 329. The model code does not authorize police intrusion into the home or place of business to

control private misbehavior.17

       ¶ 64.   These three factors, in addition to the requirement that the threats themselves meet

the constitutional standard for “true threats” further limit the scope of the “threatening behavior”

prong of the disorderly conduct statute.

  III. A Reasonable Jury Could Conclude That Defendant’s Communications In This Case Are
                                        True Threats

       ¶ 65.   A reasonable jury could conclude that defendant’s communications amount to

“threatening behavior” and constitutionally unprotected true threats because, taking the evidence

in the light most favorable to the State and considering the context of the flyers as well as their

actual language, the jury could conclude that defendant intended to threaten the victims, and that

a reasonable person in the victims’ circumstances would understand defendant’s communications

as an actual threat. The singling out of these particular minority victims for receipt of the flyers,

the history of the Ku Klux Klan and the imagery of hooded Klansmen and burning crosses, and




       17
            This raises questions as to whether the State’s charge would have survived a motion to
dismiss on this factor. Two of the most significant factors in support of the State’s claim that
defendant’s communications amounted to “true threats”—that they were targeted at only minority
individuals in a predominantly white, nonhispanic neighborhood, and they were delivered inside
or by the doors of the victims’ homes—undermine the State’s claim that defendant’s actions
created a public nuisance. The fact that, once publicized in the media, defendant’s flyers caused
great public outcry cannot be sufficient to satisfy the “public nuisance” requirement at the heart of
the disorderly conduct statute. If that were so, any act of private brawling or private tumultuous
behavior could be deemed a public nuisance if the news coverage of the event generated public
outcry. Had defendant blanketed the neighborhood with flyers, the State’s case as to public
nuisance would be far more compelling; even though the flyers may have all been distributed
inside screen doors, the scale of distribution could reasonably have supported the inference of
intent to cause public disturbance, or recklessness in doing so. But if defendant had blanketed the
predominantly white neighborhood with these Ku Klux Klan recruitment flyers—without the
targeting relied upon by the State to support its prosecution—his communications would not
qualify as “true threats” as opposed to “political hyperbole.” See Watts, 394 U.S. at 708
(describing protester’s statement that if forced to carry a rifle “the first man I want to get in my
sights is L.B.J.” as political hyperbole). Because this case comes to us on a conditional plea, and
defendant has preserved his right to appeal only those issues raised in his motion to dismiss, this
issue is not before us.
                                                  35
the anonymous and intrusive placement of the flyers in the doors of the victims’ homes are three

critical factors that, in combination, support this conclusion.

        ¶ 66.   The question for us on appeal is not whether, as a matter of law, defendants engaged

in threatening behavior that communicated a constitutionally unprotected true threat, and is not

how the Court construes the evidence, but, rather, is whether a properly instructed reasonable jury

could find defendant guilty. We will affirm the trial court’s denial of the State’s motion to dismiss

if the State’s evidence “fairly and reasonably tend[ed] to show the defendant guilty beyond a

reasonable doubt when we view the evidence in the light most favorable to the State and exclude

modifying evidence.” Cole, 150 Vt. at 455, 554 A.2d at 254-55 (quotation omitted). This

threshold is high: “Because the grant of a motion to dismiss precludes a jury from hearing any

evidence and because a jury is in the best position to weigh facts and deliver a verdict, courts

should grant a [motion to dismiss] only when there is no evidence to support a guilty verdict.”

State v. Baird, 2017 VT 78, ¶ 2, __ Vt. __, 175 A.3d 493 (quotation omitted).

        ¶ 67.   Moreover, we consider whether a reasonable jury could conclude that defendant’s

communications amount to “true threats,” not whether this Court itself reaches that conclusion.

See United States v. Stevens, 881 F.3d 1249, 1252 (10th Cir. 2018) (“Whether a reasonable jury

could find [defendant’s] statements to be true threats is a question of law. If there is no question

that a defendant’s speech is protected by the First Amendment, the court may dismiss the charge

as a matter of law. But absent an unusual set of facts, the question whether statements amount to

true threats is a question generally best left to a jury.” (citation, quotations, and alteration omitted));

Turner, 720 F.3d at 419 (noting that most cases involving threats are within broad expanse of

varying fact patterns which may not be resolved as matter of law, and indicating that court should

affirm conviction for threats “if the evidence at trial was sufficient to permit a reasonable jury to

find that [defendant’s] conduct constituted a threat”(citations omitted)); Fogel v. Collins, 531 F.3d



                                                    36
824, 829 (9th Cir. 2008) (“Deciding whether political speech is protected political hyperbole or an

unprotected true threat can be an issue for a jury, particularly in cases of criminal prosecution.”).

       ¶ 68.   In reviewing defendant’s appeal based on the trial court’s denial of his motion to

dismiss, we view the State’s evidence in the light most favorable to the State, and excluding any

modifying evidence. State v. Elkins, 155 Vt. 9, 17-18, 580 A.2d 1200, 1204 (1990). That means,

for example, that we discount the evidence that defendant distributed the offending flyers broadly,

and accept as fact that he delivered them only to the two individuals identified in the complaint.

As the trial court noted, defendant left one flyer between one victim’s screen door and her inner

door. In order to do that, defendant had to “ascend a set of stairs, walk across her porch, and open

the screen door.” Defendant left the other flyer in the victim’s mailbox, which also required

defendant to walk directly to the second victim’s front door. Further, we must draw the most

prosecution-friendly inferences concerning the defendant’s intent that the evidence can support.

       ¶ 69.   The critical question in this case is whether a reasonable person in the position of

the target of defendant’s threats would understand that an actual threat had been made. Stevens,

881 F.3d at 1253. The specific language of a communication and the context in which the

statements are made are both relevant. Id.; see also United States v. Dillard, 795 F.3d 1191, 1201

(10th Cir. 2015) (explaining statement is true threat if “reasonable recipient could conclude, based

on the language of the communication and the context in which it is delivered, that this was in fact

a veiled threat of violence by defendant”).

       ¶ 70.   The fact that a communication does not expressly articulate a threat of violence or

harm, while relevant, is not dispositive in the “true threats” analysis. We have recognized that

“[l]anguage may be treated as a threat to harm a victim, even in the absence of an explicit statement

to do so, as long as circumstances support the victim’s fearful or apprehensive response.”

Albarelli, 2011 VT 24, ¶ 20 (quotation omitted). Courts should avoid “rigid adherence to the literal

meaning of a communication without regard to its reasonable connotations derived from its

                                                 37
ambience” as ingenious threateners “can instill in the victim’s mind as clear an apprehension of

impending injury by an implied menace as by a literal threat.” Turner, 720 F.3d at 422 (holding

that public statements that judges should be killed, describing murder of another judge’s family,

and posting judges’ photos and work addresses amounted to true threats); see also Planned

Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. Of Life Activists, 290 F.3d 1058, 1075

(9th Cir. 2002) (en banc) (“The fact that a threat is subtle does not make it less of a threat.”

(quotation omitted)).

       ¶ 71.   Moreover, the context of a communication, both immediate and historical, is highly

relevant to understanding whether it amounts to a threat. “Context is critical in a true threats case

and history can give meaning to the medium.” Planned Parenthood of the Columbia/Willamette,

Inc., 290 F.3d at 1078. “[W]ithout context, a burning cross or dead rat mean nothing.” Id. at 1079.

For example, where an anti-abortion defendant was aware that a “GUILTY” poster would likely

be interpreted by a doctor in the reproductive health services community who was identified on

one as a serious threat of death or bodily harm, given the previous pattern of “WANTED” posters

identifying a specific physician followed by the physician’s murder, the poster was “true threat.”

Id. at 1063, 1079. Similarly, in United States v Hart, the Eighth Circuit concluded that a

defendant’s parking Ryder trucks in the driveways of a reproductive health clinic could be

construed as a threat to intimidate the clinic in the context of, among other factors, ongoing protests

and violence against such clinics and the similarity of the defendant’s actions to the well-known

events of the Oklahoma City bombing. 212 F.3d 1067, 1072 (8th Cir. 2000).18


       18
            “Context” considerations may run the other way as well, preserving constitutional
protection for statements that on their face are explicitly threatening. See, e.g., State v. Krijger,
97 A.3d 946, 960-61 (Conn. 2014) (concluding that in context of angry interaction following town
hearing, defendant’s menacing statements about town lawyer suffering same fate as lawyer’s son
who had recently been injured in car accident were more reasonably understood as hurtful blow
leveled in frustration, and not as serious expression of intent to cause lawyer harm of nature
suffered by his son); Watts, 394 U.S. at 708 (concluding that in context defendant’s expression of
intent to shoot President if conscripted into army was “very crude offensive method of stating a
political opposition to the President” and could not be reasonably interpreted otherwise).
                                                 38
          ¶ 72.   A threat need not suggest “imminent” harm to lose its constitutional protection.

See, e.g., Parr, 545 F.3d at 497 (“A threat doesn’t need to . . . specify when it will be carried out.”);

DeLoreto, 827 A.2d at 682 (“The threat need not be imminent to constitute a constitutionally

punishable true threat.”); People v. Lowery, 257 P.3d 72, 78 (Cal. 2011) (rejecting contention that

statute violates First Amendment because it lacks any requirement that threat to harm crime victim

or witness is to be carried out immediately, or that defendant have apparent ability to carry it out).

But see United States v. Fullmer, 584 F.3d 132, 154 (3d Cir. 2009) (“While advocating violence

that is not imminent and unlikely to occur is protected, speech that constitutes a ‘true threat’ is

not.”).

          ¶ 73.   Applying these standards, although I believe this is a close case, I conclude that a

reasonable jury, drawing permissible inferences from the evidence most favorable to the State,

could conclude that defendant’s communications amount to true threats. I rely primarily on three

closely related considerations.

          ¶ 74.   First and foremost, the jury could infer that these communications were specifically

directed at two individuals, one identified as African American and one identified as Mexican, in

a predominantly white, nonhispanic neighborhood. This factor is critical. If this was, in fact, a

general recruitment solicitation for the Ku Klux Klan, as suggested by the majority, ante, ¶ 34, the

State would lose. A communication merely urging people to join an organization, even a heinous

one with unlawful or violent goals, is not a true threat. See Brandenburg v. Ohio, 395 U.S. 444,

447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to

forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or produce such

action.”). But, as noted above, a jury must consider the facial language of the communication in

its actual context.



                                                   39
       ¶ 75.   The evidence viewed in the light most favorable to the State is that defendant

acknowledged that he would usually choose “white” neighborhoods for distributing such flyers,

and that the only two people to whom he actually delivered the flyers are members of ethnic or

racial minorities. Given that members of racial and ethnic minorities are not typically considered

prime recruits for the Ku Klux Klan, a reasonable jury could conclude that defendant’s targeted

communications to a black person and a Mexican person were not intended to communicate a

message of recruitment and would be reasonably understood to convey a different message—albeit

veiled. Moreover, the fact that the communications were targeted at the two victims bolsters the

argument that the communications were threats directed at them in particular, rather than general

political advocacy of a menacing message. See Fogel, 531 F.3d at 830 (explaining that whether

speech is directed at specific individuals is relevant to whether speech can reasonably be

characterized as protected political rhetoric or hyperbole).

       ¶ 76.   Second, the historical and modern-day association of hooded Klan members

carrying burning crosses with intimidation of and violence against racial and ethnic minorities and

their perceived allies is deeply ingrained in our nation’s DNA. In Virginia v. Black, the U.S.

Supreme Court traced the history of the Ku Klux Klan and its use of cross burning as a tool of

intimidation. 538 U.S. at 352-57 (plurality opinion). The Court explained that a 1905 book

portrayed the by-then-defunct Klan from the post-Civil War Reconstruction period as heroes, and

depicted the Klan as burning crosses to celebrate the execution of former slaves. Id. at 353. This

publication, and the 1915 movie it inspired—The Birth of a Nation—launched the second genesis

of the Klan. Id. at 353-54. A poster advertising the film “displayed a hooded Klansman riding a

hooded horse, with his left hand holding the reins of the horse and his right hand holding a burning

cross above his head.” Id. at 354. From that time on, “the association between cross burning and

the Klan became indelible.” Id.



                                                 40
       ¶ 77.   The Court traced the activities of the Klan, and its use of cross burning, through the

twentieth century, explaining that the Klan often used cross burnings as a tool of intimidation and

a threat of impending violence. Id. at 354. It described cross burnings in front of synagogues,

proposed housing projects, and union halls, explaining, “[t]hese cross burnings embodied threats

to people whom the Klan deemed antithetical to its goals. And these threats had special force

given the long history of Klan violence.” Id. at 355. The Court described bombings, beatings,

shootings, stabbings, and mutilations in response to the civil rights movement of the 1950s and

1960s, and noted that “[m]embers of the Klan burned crosses on the lawns of those associated with

the civil rights movement, assaulted the Freedom Riders, bombed churches, and murdered blacks

as well as whites whom the Klan viewed as sympathetic toward the civil rights movement.” Id. at

355-56. The Court recognized that

               when a cross burning is directed at a particular person not affiliated
               with the Klan, the burning cross often serves as a message of
               intimidation, designed to inspire in the victim a fear of bodily harm.
               Moreover, the history of violence associated with the Klan shows
               that the possibility of injury or death is not just hypothetical. The
               person who burns a cross directed at a particular person often is
               making a serious threat, meant to coerce the victim to comply with
               the Klan's wishes unless the victim is willing to risk the wrath of the
               Klan.

Id. at 357. The Court concluded that “the First Amendment permits Virginia to outlaw cross

burnings done with the intent to intimidate because burning a cross is a particularly virulent form

of intimidation.” Id. at 363. The Court concluded that insofar as the Virginia statute appeared to

allow a jury to infer an intent to intimidate from the fact of burning a cross alone, it was facially

invalid. Id. at 367. The Court reversed the conviction of one defendant who had burned a cross

at what the Court characterized as a “political rally,” and reversed and remanded the other

convictions to leave open the possibility that the Virginia statute might be construed on remand in

a way that was different from the Court’s understanding. Id. at 367.



                                                 41
          ¶ 78.   In his dissent, Justice Thomas wrote, “[i]n every culture, certain things acquire

meaning well beyond what outsiders can comprehend. That goes for both the sacred, and the

profane. I believe that cross burning is the paradigmatic example of the latter.” Id. at 388 (Thomas,

J., dissenting) (citation omitted). Justice Thomas described the Klan as “a terrorist organization,

which, in its endeavor to intimidate, or even eliminate those it dislikes, uses the most brutal of

methods,” and concluded, “[i]n our culture, cross burning has almost invariably meant lawlessness

and understandably instills in its victims well-grounded fear of physical violence.” Id. at 389-91.

          ¶ 79.   I recognize that this case does not involve an actual cross burning. That would

present a much easier case. But even though we do not today see the breadth and severity of the

violence associated with the Klan of a prior era, the legacy of the Klan and the violence it represents

is not a dead letter in today’s America. The potency of the burning cross symbol, and the

organization with which it is so closely associated, shapes the context of the communications in

this case. Even a crude drawing of a hooded member of the Klan riding a hooded horse while

raising a burning cross, when distributed selectively to two minority individuals in a predominantly

white, nonhispanic neighborhood, can reasonably be understood to impart a substantial veiled

threat.

          ¶ 80.   Third, a jury could conclude that by placing the flyers anonymously in or next to

the front doors of the victims homes, defendant intended to convey a message —“I know who you

are and I know where you live”—calculated to arouse fear of violence or harm from an unknown

enemy. The trial court found that in order to place one of the flyers, someone would have to ascend

a set of stairs, walk across the victim’s porch, and open the screen door. The second flyer was

folded and inserted into a victim’s mailbox, located next to her front door. The U.S. Supreme

Court has concluded that “true threats” are not protected speech. The primary interests identified

by the Court as the basis for its conclusion are “protect[ing] individuals from the fear of violence

and from the disruption that fear engenders, in addition to protecting people from the possibility

                                                  42
that the threatened violence will occur.” Black, 538 U.S. at 360 (plurality opinion) (quoting

R.A.V., 505 U.S. at 388). An approving invocation of the history and goals of the Klan or the act

of cross burning in a public debate about racial justice, or even a protest in the town park, might

be deeply unsettling and disturbing, but would not rise to the level of constitutionally unprotected

speech. But an anonymous flyer with imagery deeply associated with extreme violence toward

racial and ethnic minorities distributed exclusively to a member of a racial or ethnic minority in a

primarily white, nonhispanic community inside the resident’s screen door would reasonably

engender particular fear if part of the message conveyed was, “I have stood here, on the threshold

of your home. You don’t know who I am, but I know who you are and where you live.”

       ¶ 81.   In other contexts, courts have consistently recognized the particular privacy interest

people enjoy in their homes and the immediate surroundings. State v. Blow, 157 Vt. 513, 518,

602 A.2d 552, 555 (1991) (invoking “deeply-rooted legal and societal principle that the coveted

privacy of the home should be especially protected”); see also Frisby v. Schultz, 487 U.S. 474,

484 (1988) (“Our prior decisions have often remarked on the unique nature of the home . . . and

have recognized that preserving the sanctity of the home, the one retreat to which men and women

can repair to escape from the tribulations of their daily pursuits, is surely an important value.”

(quotations and alterations in original omitted)); Rowan v. U.S. Post Office Dep’t, 397 U.S. 728,

737 (1970) (“The ancient concept that a man’s home is his castle into which not even the king may

enter has lost none of its vitality . . . .” (quotations omitted)). Even in cases in which the U.S.

Supreme Court has struck down restrictions on “door-to-door” advocacy, the Court has

acknowledged the significance of privacy interests in one’s home:

               Of all the methods of spreading unpopular ideas, [house-to-house
               canvassing] seems the least entitled to extensive protection. The
               possibilities of persuasion are slight compared with the certainties
               of annoyance. Great as is the value of exposing citizens to novel
               views, home is one place where [people] ought to be able to shut
               [themselves] up in [their] own ideas if [they] desire[].”

                ....
                                                43
                There is, of course, no absolute right under the Federal Constitution
               to enter on the private premises of another and knock on a door for
               any purpose . . . . We cannot say . . . that door-to-door canvassing
               and solicitation are immune from regulation . . . whether the purpose
               of the regulation is to protect from danger or to protect the peaceful
               enjoyment of the home.

Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 619-20 (1976) (quotation

omitted) (first alteration in original). I do not mean to suggest that the distribution of political

flyers to someone’s doorstep is not constitutionally protected; it clearly is, subject to reasonable

restrictions. But the distribution of literature extolling the Ku Klux Klan, when delivered only to

two targeted individuals who are racial or ethnic minorities, is especially threatening when

delivered inside the curtilage of their homes.

       ¶ 82.   This is a difficult and close case. I admit that most, though not all, of the reported

appellate decisions dealing with true threats involve more explicit threats of violence, or at least

more strongly implied suggestions of extreme violence or death. The law surrounding “true

threats” remains unsettled on many issues.19 And just as threats delivered to one’s doorstep may

be particularly unsettling, political leafleting and door-to-door canvassing are time-honored, vital

and constitutionally protected means of sharing heartfelt views on matters of religion, politics,

human rights, and other subjects. The potential tension in this case between the values of free

expression and personal security is real.

       ¶ 83.   Moreover, there is much in this record to suggest that defendant’s actions did not

amount to true threats, and that a properly instructed jury would have concluded that his flyers,

while repugnant, were constitutionally protected. If he distributed the flyers more broadly, as he

claimed, his actions clearly fell on the “political advocacy” side of the somewhat elusive line

between unprotected speech and protected advocacy. Although it could conclude otherwise, a jury

could well have been persuaded that defendant lacked the requisite intent to threaten—that he was


       19
       For a helpful analysis, see generally M. Strasser, Advocacy, True Threats, and the First
Amendment, 38 Hastings L.Q. 339 (2011).
                                             44
more of a bumbling patron of an organization that gave him a sense of purpose, albeit a misguided

one, and that he did not intend to actually threaten anyone. The jury may well have decided that

as unsettling as the flyers were in light of their manner of distribution, they did not amount to true

threats as defined in constitutional terms. And, as I noted above, I believe the State’s ability to

satisfy the public nuisance requirement of the disorderly conduct statute may have been

compromised by its necessary reliance on the highly targeted, nonpublic nature of defendant’s

placement of flyers at only two homes.

       ¶ 84.   But I am constrained by the record as it comes to us and the standard of review that

applies, and for the reasons set forth above, I respectfully dissent.

       ¶ 85.   I am authorized to state that Chief Justice Reiber joins this dissent.



                                                 Associate Justice




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