For decision of the Court, see .
For decision of the Court, see .
For decision of the Court, see .
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.
Page 408 U.S.
901 , 903
In Rosenfeld's case, for example, civilized people attending
such a meeting with wives and children would not likely have an
instantaneous, violent response, but it does not unduly tax the
imagination to think that some justifiably outraged parent whose
family were exposed to the foul mountings of the speaker would
'meet him outside' and either alone or with others, resort to the
19th Century's vigorous modes of dealing with such people. I cannot
see these holdings as an 'advance' in human liberty but rather a
retrogression to what men have struggled to escape for a long time.
[92SCt2483,408US901,33LEd2d321]
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice
BLACKMUN join, dissenting.
It has long been established that the First and Fourteenth
Amendments forbid the States from punishing all but the most
'narrowly limited classes of speech.' Chaplinsky v. New Hampshire,
315 U.S.
568, 571, 62 S. Ct. 766, 769 (1942). The right of free speech,
however, has never been held to be absolute at all times and under
all circumstances. To so hold would sanction invasion of cherished
personal rights and would deny the States the power to deal with
threats to public order. As the Court noted in Chaplinsky,
'. . . it is well understood that the
right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the
insulting or 'fighting' words-those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace.
It has been well observed that such utterances are no essential
part of any exposition of ideas, and are
Page 408 U.S.
901 , 904
of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality. 'Resort to epithets or personal
abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a
criminal act would raise no question under that instrument.'
Cantwell v. Connecticut,
310 U.S. 296, 309-310,
906.' 315 U.S., at 571-572. (Footnotes omitted.)
This case presents an example of gross abuse of the respected
privilege in this country of allowing every citizen to speak his
mind. Appellant addressed a public school board meeting attended by
about 150 people, approximately 40 of whom were children and 25 of
whom were women. In the course of his remarks he used the adjective
'M05q F05q' on four occasions, to describe the teachers, the school
board, the town and his own country.
For using this language under these circumstances, appellant was
prosecuted and convicted under a New Jersey statute which
provides:
'Any person who utters loud and
offensive or profane or indecent language in any public street or
other public place, public conveyance, or place to which the public
is invited . . . is a disorderly person.' N.J.Rev.Stat.
2A:170-29(1) (1970).
Prior to appellant's prosecution, the Supreme Court of New
Jersey had limited the statute's coverage as follows:
'. . . the words must be spoken
loudly, in a public place and must be of such a nature as to be
likely to incite the hearer to an immediate breach of the peace or
to be likely, in the light of the gender and age of the listener
and the setting of the utterance, to affect the sensibilities of a
hearer. The words
Page 408 U.S.
901 , 905
must be spoken with the intent to have the above effect or with
a reckless disregard of the probability of the above consequences.'
State v. Profaci, 56 N.J. 346, 353,
266 A.2d
579, 583-584 (1970).
The Court today decides to vacate and remand this case for
reconsideration in light of Gooding v. Wilson,
405 U.S. 518 (1972), and
Cohen v. California,
403 U.S. 15 (1971). As it
seems to me that neither of these cases is directly relevant, and
that considerations not present in those cases are here
controlling, I respectfully dissent.
Perhaps appellant's language did not constitute 'fighting words'
within the meaning of Chaplinsky. While most of those attending the
school board meeting were undoubtedly outraged and offended, the
good taste and restraint of such an audience may have made it
unlikely that physical violence would result. Moreover, the
offensive words were not directed at a specific individual. But the
exception to First Amendment protection recognized in Chaplinsky is
not limited to words whose mere utterance entails a cal violence.
It also extends to the willful use of scurrilous language
calculated ful use of scurrilous language calculated to offend the
sensibilities of an unwilling audience.
The Court of Appeals for the District of Columbia Circuit has
addressed this issue more explicitly. Judge McGowan, writing for
the court en banc in Williams v. District of Columbia, 136
U.S.App.D.C. 56,
419 F.2d
638 (1969), correctly stated:
'Apart from punishing profane or
obscene word which are spoken in circumstances which create a
threat of violence, the state may also have a legitimate interest
in stopping one person from 'inflict[ing] injury' [Chaplinsky v.
New Hampshire, 315 U.S., at 572] on others by verbally assaulting
them with language which is grossly offensive because of its
profane or obscene character. The fact
Page 408 U.S.
901 , 906
that a person may constitutionally indulge his taste for
obscenities in private does not mean that he is free to intrude
them upon the attentions of others.' 419 F.2d, at 646.
I agree with this view that a verbal assault on an unwilling
audience may be so grossly offensive and emotionally disturbing as
to be the proper subject of criminal proscription, whether under a
statute denominating it disorderly conduct, or more accurately, a
public nuisance. Judge McGowan further noted in Williams:
'. . . a breach of the peace is
threatened either because the language creates a substantial risk
of provoking violence, or because it is, under 'contemporary
community standards,' so grossly offensive to members of the public
who actually overhear it as to amount to a nuisance.' 419 F.2d, at
646. (Footnotes omitted.)
The Model Penal Code, proposed by the American Law Institute,
also recognizes a distinction between utterances which may threaten
physical violence and those which may amount to a public nuisance,
recognizing that neither category falls within the protection of
the First Amendment. See Model Penal Code 250.2(1)(a) and (b).
(Proposed Official Draft 1962.)
The decision in Gooding v. Wilson,
405 U.S. 518, 31 L. Ed.
2d 408 (1972), turned largely on an application of the First
Amendment overbreadth doctrine,1 and the Court's remand order
sug-
Page 408 U.S.
901 , 907
gests that the overbreadth doctrine should be applied in this
case. The consequences and the unusual character of the overbreadth
doctrine have been accurately summarized in Note, The First
Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 852 (1970):
'[The overbreadth doctrine] results
often in the wholesale invalidation of the legislature's handiwork,
creating a judicial- legislative confrontation.
'In the end, this departure from the
normal method of judging the constitutionality of statutes must
find justification in the favored status of rights to expression
and association in the constitutional scheme.' (Footnotes
omitted.)
Because a 'judicial-legislative confrontation' often results
from application of the overbreadth doctrine, and because it is a
departure from the normal method of judicial review,2 it should be
applied with restraint. In my view, the doctrine is not applicable
in this case.
The New Jersey statute was designed to prohibit the public use
of language such as that involved in this case, and certainly the
State has an interest-perhaps a compelling one-in protecting
non-assenting citizens from vulgar and offensive verbal assaults. A
statute directed narrowly to this interest does not impinge upon
the values of protected free speech. Legitimate First Amendment
interests are not furthered by stretching the overbreadth doctrine
to cover a case of this kind. In Cohen v. California,
403 U.S. 15 (1971), which
deals
Page 408 U.S.
901 , 908
with the question of what expressive activity is
constitutionally punishable, Mr. Justice Harlan described the
purpose of the free speech guarantee as follows:
"It is designed and intended to
remove governmental restraints from the arena of public discussion,
putting the decision as to what views shall be voiced largely into
the hands of each of us, in the hope that use of such freedom will
ultimately produce a more capable citizenry and more perfect polity
and in the belief that no other approach would comport with the
premise of individual dignity and choice upon which our political
system rests. See Whitney v. California,
274 U.S.
357, 375-377 (1927) ( Brandeis, J., concurring).' 403 U.S., at
24.
The purpose of the overbreadth doctrine is to excise statutes
which have a deterrent effect on the exercise of protected speech.
[
Footnote 3] It is difficult to
believe that sustaining appellant's conviction under this statute
will deter others from the exercise of legitimate First Amendment
rights. [
Footnote 4]
The line between such rights and the type of conduct proscribed
by the New Jersey statute is difficult to draw.
Page 408 U.S.
901 , 909
The preservation of the right of free and robust speech is
accorded high priority in our society and under the Constitution.
Yet, there are other significant values. One of the hallmarks of a
civilized society is the level and quality of discourse. We have
witnessed in recent years a disquieting deterioration in standards
of taste and civility in speech. For the increasing number of
persons who derive satisfaction from vocabularies dependent upon
filth and obscenities, there are abundant opportunities to gratify
their debased tastes. But our free society must be flexible enough
to tolerate even such a debasement provided it occurs without
subjecting unwilling audiences to the type of verbal nuisance
committed in this case. The shock and sense of affront, and
sometimes the injury to mind and spirit, can be as great from words
as from some physical attacks.
I conclude in this case that appellant's utterances fall within
the proscription of the New Jersey statute, and are not protected
by the First Amendment. Accordingly, I would dismiss the appeal for
want of a substantial federal question.
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr.
Justice REHNQUIST join, dissents; for dissenting opinion see .
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr.
Justice BLACKMUN join, dissents; for dissenting opinion see .
In Lewis, the police were engaged in making an arrest of
petitioner's son on grounds not challenged here. While the police
were engaged in the performance of their duty, appellant intervened
and ultimately addressed the police officers as 'G- d- m--- f---
police.' At that poin she was herself arrested for violation of a
city ordinance providing:
'It shall be unlawful and a breach of
the peace for any person wantonly to curse or revile or to
Page 408 U.S.
901 , 910
use obscene or opprobrious language toward or with reference to
any member of the city police while in the actual performance of
his duty.'
In Rosenfeld, appellant appeared and spoke at a public school
board meeting that was held in an auditorium and was attended by
more than 150 men, women, and children of mixed ethnic and racial
backgrounds. It was estimated that there were approximately 40
children and 25 women present at the meeting. During his speech,
appellant used the adjective 'M--- f---' on four different
occasions while concluding his remarks. Testimony varied as to what
particular nouns were joined with this adjective, but they were
said to include teachers, the community, the school system, the
schoolboard, the country, the county, and the town.
Rosenfeld was convicted under a New Jersey statute that
provides:
'Any person who utters loud and
offensive or profane or indecent language in any public street or
other public place, public conveyance or place to which the public
is invited . . . 'is a disorderly person." N.J.S. 2A:
170-29.1.
The New Jersey Supreme Court prior to the instant case, had
placed the following limiting construction on the New Jersey
statute:
'. . . the words must be spoken
loudly, in a public place and must be of such a nature as to be
likely to incite the hearer to an immediate breach of the peace or
to be likely, in the light of the gender and age of the listener
and the setting of the utterance, to affect the sensibilities of a
hearer. The words must be spoken with the intent to have the above
effect or with a reckless disregard of the probability of the above
consequences.' State v.
Page 408 U.S.
901 , 911
Profaci, 56 N.J. 346, 353,
266 A.2d
579, 383 (1970).
Appellant in Brown spoke to a large group of men and women
gathered in the University of Tulsa chapel. During a question and
answer period he referred to some policemen as 'm--- f--- fascist
pig cops' and to a particular Tulsa police officer as that '. . .
black m--- f--- pig ___.' Brown was convicted of violating an
Oklahoma statute the prohibited the utterance of 'any obscene or
lascivious language or word in any public place, or in the presence
of females . . ..'
The Court vacates and remands these cases for reconsideration in
the light of Gooding v. Wilson,
405 U.S. 518 ( 1972), and
Cohen v. California,
403 U.S. 15 ( 1971) (the
latter decided some five months before the opinion of the New
Jersey Superior Court, Appellate Division, which upheld Rosenfeld's
conviction, and 10 months before that of the Oklahoma Court of
Criminal Appeals in Brown).
Insofar as the Court's remand is based on Cohen, supra, for the
reasons stated in Mr. Justice Blackmun's dissenting opinion in that
case I would not deny to these States the power to punish language
of the sort used here by appropriate legislation. Appellant Lewis'
words to the police officers were 'fighting words,' and those of
appellants Rosenfeld and Brown were 'lewd and obscene' and
'profane' as those terms are used in Chaplinsky v. New Hampshire,
315 U.S. 568 (
1942), the leading case in the field. Delineating the type of
language that the States may constitutionally punish, the Court
there said:
'There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise
Page 408 U.S.
901 , 912
any constitutional problems. These include the lewd and obscene,
the profane, the libelous, and the insulting or 'fighting'
words-those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well observed
that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality. 'Resort to epithets or
personal abuse is not in any proper sense communication of
information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that
instrument.' Cantwell v. Connecticut,
310 U.S. 296, 309-310.'
315 U.S., at 572, 62 S. Ct. at 769.
The language used by these appellants therefore clearly falls
within the class of punishable utterances described in
Chaplinsky.
Gooding v. Wilson, supra, dealt both with the type of speech
that the States could constitutionally punish, and the doctrine of
First Amendment overbreadth. With respect to the latter, the Court
said:
'The constitutional guarantees of
freedom of speech forbid the States from punishing the use of words
or language not within 'narrowly limited classes of speech.'
Chaplinsky v. New Hampshire,
315 U.S.
568, 571 (1942). Even as to such a class, however, because 'the
line between speech unconditionally guaranteed and speech which may
legitimately be regulated, suppressed, or punished is finely
drawn,' Speiser v. Randall,
357 U.S.
513, 525 (1958), '[i]n every case the power to regulate must be
so exercised as not, in obtaining a permissible end, unduly to
infringe the protected freedom,' Cant-
Page 408 U.S.
901 , 913
well v. Connecticut,
310 U.S.
296, 304 ( 1940). In other words, the statute must be carefully
drawn or be authoritatively construed to punish only unprotected
speech and not be susceptible of application to protected
expression.' Gooding v. Wilson, supra, 405 U.S. at 521-522, 92 S.
Ct. at 1106.
Unless we are to distort the doctrine of overbreadth into a
verbal game of logic chopping and sentence parsing reminiscent of
common law pleading, it cannot fairly be said here that either the
New Orleans ordinance, or the New Jersey statute as construed by
the highest court of that State, could reasonably be thought
'unduly to infringe the protected freedom,' Cantwell v.
Connecticut, supra.
I would dismiss these appeals for lack of a substantial federal
question.
Footnotes
Footnote 1 Insofar as the
Court's decision in Gooding turns on vagueness principles, it seems
inapplicable to this case. The essence of the due process vagueness
concern is that no man shall be punished for violating a statute
which is not 'sufficiently explicit to inform those who are subject
to it what conduct on their part will render them lable to its
penalties.' Connally v. General Construction Co.,
269 U.S.
385, 391, 46 S. Ct. 126 (1926). Although the New Jersey statute
involved in this case is hardly a model of clarity, it cannot
reasonably be said that appellant could have been unaware that the
language used under the circumstances was prescribed by the
statute. Unless he is a person of infirm mentality, appellant
certainly knew that his deliberate use four times of what Mr.
Justice Harlan terms in Cohen a 'scurrilous epithet,' in the
presence of a captive audience of women and children, violated the
statute.
Footnote 2 See, e. g.,
United States v. Raines,
362 U.S. 17, 20-22
(1960).
Footnote 3 See Note, The
First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 853
(1970).
Footnote 4 Nor does the
continued existence of the New Jersey statute, which must now be
construed and applied by the New Jersey courts in light of Gooding,
have the effect of deterring others in the exercise of their First
Amendment rights. To remand this case with the suggestion that the
overbreadth doctrine be applied accomplishes only one result: it
creates the potential that appellant will receive an undeserved
windfall.
I recognize, of course, that serious definitional and
enforcement problems are likely to arise even where the statutes in
this area are carefully drawn. Yet, the inherent difficulty of the
problem is not sufficient reason for legislatures and the courts to
abdicate their responsibility to protect non-assenting citizens
from verbal conduct which is so grossly offensive as to amount to a
nuisance.