The Ohio Supreme Court erred in finding no constitutional
infirmity in the lower Court's holding that a city ordinance
punishing abuse of another by using menacing, insulting,
slanderous, or profane language might constitutionally reach
appellant's use of "fighting words" where the ordinance, as
construed by the Ohio courts, is facially unconstitutional because
it may be applied to punish not only unprotected, but also
protected, speech. Even though a law may be valid as applied to the
conduct charged against a particular defendant, he may raise its
vagueness or unconstitutional overbreadth as applied to others,
and, if the law is found deficient in one of these respects, it may
not be applied to him either, absent a satisfactory limiting
construction.
Reversed.
PER CURIAM.
The Court of Appeals of Franklin County, Ohio, in an unreported
opinion, affirmed appellant's conviction of violating Columbus City
Code § 2327.03, which provides: "No person shall abuse another by
using menacing, insulting, slanderous, or profane language." The
Ohio Supreme Court, in an unreported order,
sua sponte,
dismissed appellant's appeal to that court "for the reason that no
substantial constitutional question exists herein." We granted
leave to proceed
in forma pauperis and reverse.
On December 11, 1972, we held that
Gooding v. Wilson,
405 U. S. 518
(1972), required the reversal of a previous action of the Ohio
Supreme Court that dismissed an appeal from a conviction under §
2327.03.
Cason v. City of Columbus, 409 U.S. 1053. Section
2327.03 punishes only spoken words, and, as construed by the Ohio
courts, is facially unconstitutional because not limited
Page 414 U. S. 3
in application "to punish only unprotected speech," but is
"susceptible of application to protected expression."
Gooding
v. Wilson, supra, at
405 U. S. 522.
In that circumstance, the Ohio Supreme Court erred when it found no
constitutional infirmity in the holding of the Court of Appeals of
Franklin County that the ordinance might constitutionally reach
appellant's conduct because
"the words as used by the [appellant] are in the nature of
'fighting words,' and thereby fall within that limit of conduct
proscribed by the ordinance. . . ."
For
"'[a]lthough [the ordinance] may be neither vague, overbroad,
nor otherwise invalid as applied to the conduct charged against a
particular defendant, he is permitted to raise its vagueness or
unconstitutional overbreadth as applied to others. And if the law
is found deficient in one of these respects, it may not be applied
to him either, until and unless a satisfactory limiting
construction is placed on the [ordinance]. The [ordinance], in
effect, is stricken down on its face. . . .'"
Id. at
405 U. S.
521.
Reversed.
THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN dissent for the
reasons expressed in MR. JUSTICE BLACKMUN's dissenting opinion in
Gooding v. Wilson, 405 U. S. 518,
405 U. S. 534
(1972), and in the dissenting statement in
Cason v. City of
Columbus, 409 U.S. 1053 (1972).
MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST concurs,
dissenting.
Appellant is a Columbus cab driver. He had a female fare in his
cab who had requested to be taken to a certain address. When he
passed this address, the fare complained and -- according to the
statement of the trial court -- the cab driver's response was "a
series of absolutely
Page 414 U. S. 4
vulgar, suggestive and abhorrent sexually oriented
statements."
I would sustain appellant's conviction for the reasons stated in
my dissenting opinion in
Rosenfeld v. New Jersey,
408 U. S. 901, 906
(1972). As stated therein:
"[A] verbal assault on an unwilling audience [or an individual]
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."
The Columbus City Code was certainly sufficiently explicit to
inform appellant that his verbal assault on a female passenger in
his cab was "menacing and insulting." As a wrong of this character
does not fall within the protection of the First Amendment, the
overbreadth doctrine is not applicable.
See Model Penal
Code, §§ 250.2(1)(a) and (b) (Proposed Official Draft 1962);
see also Williams v. District of Columbia, 136
U.S.App.D.C. 56, 64, 419 F.2d 638, 646 (1969).