United States Supreme Court Cases & Opinions

U.S. Supreme Court

ROSENFELD v. NEW JERSEY , 408 U.S. 901 (1972)

June 26, 1972

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Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.

Page 408 U.S. 901 , 902

Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.

I am constrained to express my profound disagreement with what the Court does in these three cases on the basis of Gooding v. Wilson, 405 U.S. 518 (1972).

The important underlying aspect of these cases goes really to the function of law in preserving ordered liberty. Civilized people refrain from 'taking the law into their own hands' because of a belief that the government, as their agent, will take care of the problem in a organized, orderly way with as nearly a uniform response as human skills can manage. History is replete with evidence of what happens when the law cannot or does not provide a collective response for conduct so widely regarded as impermissible and intolerable.

It is barely a century since men in parts of this country carried guns constantly because the law did not afford protection. In that setting, the words used in these cases, if directed toward such an armed civilian, could well have led to death or serious bodily injury. When we undermine the general belief that the law will give protection against fighting words and profane and abusive language such as the utterances involved in these cases, we take steps to return to the law of the jungle. These three cases, like Gooding, are small but symptomatic steps. If continued, this permissiveness will tend further to erode public confidence in the law- that subtle but indispensable ingredient of ordered liberty. [408 U.S. 901 , 903]

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