dissenting. I respectfully dissent. In my view, the “fighting words” doctrine has become an archaic relic, which found its genesis in more chauvinistic times when it was considered bad form for a man to back down from a fight. Even the United States Supreme Court, which created it in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), has never since used the “fighting words” doctrine to uphold a conviction. Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for its Interment, 106 Harv. L. Rev. 1129, 1129 (1993). Recognition in legal analysis that it is “reasonable” to expect a person to retaliate with his fists when provoked by speech, it seems to me, runs counter to what the law should endorse. And, even if the doctrine has any vitality left to it, it is not available to save the conviction in this case.
To begin with, the statute under consideration does not limit itself to “fighting words,” and it is not our proper function to rewrite it. The statute reads:
§ 1026 Disorderly conduct
A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:
(1) Engages in fighting or in violent, tumultuous or threatening behavior; or
(2) Makes unreasonable noise; or
(3) In a public place uses abusive or obscene language; or
*157(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or
(5) Obstructs vehicular or pedestrian traffic, shall be imprisoned for not more than 60 days or fined not more than $500.00 or both.
13 V.S.A. § 1026 (emphasis added). Defendant was charged with violating the emphasized provision of § 1026. As can be readily determined, “fighting” under § 1026(1) is limited to the physical, not the verbal.
The victim of the offense was a police officer. The so-called “fighting words” “specifically addressed” to him were:
You’re a fucking piece of shit.
You’re a fucking asshole.
I want you to get out of my face.
You’re dead.
Go ahead, you fucking pig.
You’re a stupid fucking pig.
You’re not even here, you pig.
These words — parroting familiar dialogue of screenwriters — are as devoid of fighting content as they are lacking in imagination. The trooper simply attributed the choice of words to “street language,” spoken by a man whom he knew (“Mike, I fucked up”). The “fighting” content of the tirade can only be attributed to defendant’s ascension emotionally from calm and friendly to “very uncooperative, very aggressive, very argumentative, very insulting, very profane, and display[ing] a number of very aggressive mannerisms,” such as arms flexed and rigid, fists clenched, teeth grinding, and facial expression rigidly set in the “thousand-mile stare.” Indeed, the situation more approximates a violation of § 1026(1) (“[e]ngages in . . . threatening behavior”) than a violation of § 1026(3) (“uses abusive . . . language”).
The scene ironically suggests that had defendant not vented in his “very profane” way, he would have probably punched the trooper in the nose. The evidence does not suggest, on the other hand, that defendant was in any danger of assault from the trooper. The trooper inferred “an imminent attack” from defendant’s language and demeanor, but had no intention to strike defendant. The trooper felt “a sense of great anger” build up and fear, but he assured the court that his training, experience, and knowledge of disciplinary rules prevented him from striking defendant. There is nothing in this record or *158common sense to suggest that even an average person would have been so provoked by defendant’s behavior that he would have physically attacked defendant. Defendant’s words were certainly annoying, and, I suppose, someone — perhaps another intoxicated male — might reasonably have been expected to start a fight upon hearing them. But, a conviction cannot validly rest on that. The Court has misunderstood the “fighting words” doctrine.
The doctrine has undergone a rather ragged development since World War II when it was first announced. Today, it is largely discredited as “a hopeless anachronism that mimics the macho code of barroom brawls.” K. Sullivan, The First Amendment Wars, New Republic, Sept. 28, 1992, at 35, 50. The doctrine is limited to words likely to immediately provoke the individual listener to whom they are directed to start a fight. An objective standard is required to determine that issue — that is, would a reasonable police officer be expected to use violence against the speaker given the circumstances and the characteristics of the speaker and officer? The test is not met just because somebody somewhere hearing “the words” might start a fight. See Gooding v. Wilson, 405 U.S. 518, 524 (1972) (words must have direct tendency to provoke violent acts “by the person to whom, individually, the remark is addressed”).
In Gooding, the high court struck down a statute interpreted by Georgia exactly as this Court interprets the Vermont statute. Georgia applied the fighting words doctrine to prohibit “abusive language,” which tends to cause a “breach of peace,” directed at one “‘who, on account of circumstances or by virtue of the obligations of office, can not actually then and there resent the same by a breach of the peace.’” Id. at 519, 526 (quoting Elmore v. State, 83 S.E. 799, 799-800 (Ga. Ct. App. 1914). Most evidently, the United States Supreme Court has included a “clear and present danger” component in the doctrine. City of Houston v. Hill, 482 U.S. 451, 461 (1987) (speech may be punished only if likely to produce “‘a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest’”) (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). The words spoken must prompt the one addressed to respond with violence by attacking the speaker then and there. See L. Tribe, American Constitutional Law § 12-18, at 929 n.9 (2d ed. 1988).
Because this Court has acknowledged that under an objective test the police officer here was not likely to assault defendant due to what he said, that finding should be dispositive of this appeal. Instead, the Court overrides the federal law announced in Gooding by saying *159merely that people should be discouraged from using vulgar language around police because ‘“we do not pay [police officers] enough’” to put up with it. 165 Vt. at 151, 680 A.2d at 950 (quoting City of Bismarck v. Shoppert, 469 N.W.2d 808, 814 (N.D. 1991) (VandeWalle, J., concurring). That, of course, begs the constitutional question.
I agree that abusive language is annoying and sometimes exceedingly painful to take. If, however, mere words that might hypothetically induce pugnacious persons to lash out may serve as a basis for punishing the speaker, no matter to whom spoken, two dangers are apparent: one, the law is driven by the lowest common denominator modeled after the stereotypical “male chauvinist,” and, two, the very vagueness of the test will sweep up content-protected speech if spoken -with sufficiently agitated body language.
The Court concludes that the statute is saved from a vagueness challenge because defendant must have had the specific intent as defined in the law. At the very least, then, the State must prove that by uttering the fighting words defendant was recklessly creating a risk of public inconvenience or annoyance. This mental element did not save the Louisiana breach of peace law in Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974) (unlawful for person “wantonly. . . to use . . . opprobrious language toward” police officer). Indeed, this element would be present in every ease where the other elements of the crime are proved. A person speaking abusively in public would naturally expect somebody to be annoyed. The Court, however, has not narrowed the definition of the mental element to an intent to provoke a fight. It seems to me that the fighting words doctrine, no matter how archaic that concept, demands no less. In short, the law’s mental element, intent to annoy, is not a “large enough tail to wag this dog.”
I would reverse. I am authorized to say that Justice Dooley joins this dissent.