On remand from this Court for reconsideration in light of
Gooding v. Wilson, 405 U. S. 518,
appellant's conviction of violating a New Orleans ordinance making
it unlawful "to curse or revile or to use obscene or opprobrious
language toward or with reference to" a police officer while in
performance of his duties was again sustained by the Louisiana
Supreme Court, which did not narrow or refine the words of the
ordinance, although stating that it was limited to "fighting words"
uttered to specific persons at a specific time.
Held: The ordinance, as thus construed, is susceptible
of application to protected speech, and therefore is overbroad in
violation of the First and Fourteenth Amendments and facially
invalid. The ordinance plainly has a broader sweep than the
constitutional definition of "fighting words" as being words
"which, by their very utterance inflict injury or tend to incite an
immediate breach of the peace,"
Chaplinsky v. New
Hampshire, 315 U. S. 568,
315 U. S. 572;
Gooding v. Wilson, supra, at
405 U. S. 522,
since, at the least, "opprobrious language" embraces words that do
not fall under that definition, the word "opprobrious" embracing
words "conveying or intended to convey disgrace,"
id. at
405 U. S. 525.
It is immaterial whether the words appellant used might be
punishable under a properly limited ordinance. Pp.
415 U. S.
131-134.
263 La. 809,
269
So. 2d 450, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. POWELL, J.,
filed an opinion concurring in the result,
post, p.
415 U. S. 134.
BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J.,
and REHNQUIST, J., joined,
post, p.
415 U. S.
136.
Page 415 U. S. 131
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Upon the Louisiana Supreme Court's reconsideration of this case
in light of
Gooding v. Wilson, 405 U.
S. 518 (1972), pursuant to our remand,
408 U.
S. 913 (1972), that court, three judges dissenting,
again sustained appellant's conviction upon a charge of addressing
spoken words to a New Orleans police officer in violation of New
Orleans Ordinance 828 M.C.S. § 49-7, 263 La. 809,
269 So. 2d
450 (1972). [
Footnote 1] We
noted probable jurisdiction, 412 U.S. 926 (1973), and we reverse.
We hold that § 49-7, as construed by the Louisiana Supreme Court,
is overbroad in violation of the First and Fourteenth
Page 415 U. S. 132
Amendments, and is therefore facially invalid. Section 49-7
provides:
"It shall be unlawful and a breach of the peace for any person
wantonly to curse or revile or to use obscene or opprobrious
language toward or with reference to any member of the city police
while in the actual performance of his duty."
The Louisiana Supreme Court, on remand, did not refine or narrow
these words, but took them as they stood: "The proscriptions are
narrow and specific -- wantonly cursing, reviling, and using
obscene or opprobrious language." 263 La. at 827, 269 So. 2d at
456. Nonetheless, that court took the position that, as written,
"it [ § 49-7] is narrowed to
fighting words' uttered to
specific persons at a specific time. . . ." Id. at 826,
269 So. 2d at 456. But § 49-7 plainly has a broader sweep than the
constitutional definition of "fighting words" announced in
Chaplinsky v. New Hampshire, 315 U.
S. 568, 315 U. S. 572
(1942), and reaffirmed in Gooding v. Wilson, supra, at
405 U. S. 522,
namely, "those [words] which, by their very utterance inflict
injury or tend to incite an immediate breach of the peace." That
the Louisiana Supreme Court contemplated a broader reach of the
ordinance is evident from its emphasis upon the city's
justification for regulation of
"the conduct of any person towards a member of the city police
while in the actual performance of his duty. . . . Permitting the
cursing or reviling of or using obscene or opprobrious words to a
police officer while in the actual performance of his duty would be
unreasonable and basically incompatible with the officer's
activities and the place where such activities are performed."
263 La. at 825, 269 So. 2d at 456. [
Footnote 2]
Page 415 U. S. 133
At the least, the proscription of the use of "opprobrious
language," embraces words that do not, "by their very utterance,
inflict injury or tend to incite an immediate breach of the peace."
That was our conclusion as to the word "opprobrious" in the Georgia
statute held unconstitutional in
Gooding v. Wilson, where
we found that the common dictionary definition of that term
embraced words "conveying or intended to convey disgrace," and
therefore that the term was not limited to words which, "by their
very utterance inflict injury or tend to incite an immediate breach
of the peace." 405 U.S. at
405 U. S. 525. The same conclusion is compelled as to
the reach of the term in § 49-7, for we find nothing in the opinion
of the Louisiana Supreme Court that makes any meaningful attempt to
limit or properly define -- as limited by
Chaplinsky and
Gooding -- "opprobrious," or indeed any other term in §
49-7. In that circumstance, it is immaterial whether the words
appellant used might be punishable under a properly limited statute
or ordinance. We reaffirm our holding in
Gooding v. Wilson,
supra, at
405 U. S.
520-521, in this respect:
"It matters not that the words [appellant] used might have been
constitutionally prohibited under a narrowly and precisely drawn
statute. At least when statutes regulate or proscribe speech and
when 'no readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution,' . . . the
transcendent value to all society of constitutionally protected
expression is deemed to justify allowing"
"attacks on overly broad statutes with no requirement that the
person making
Page 415 U. S. 134
the attack demonstrate that his own conduct could not be
regulated by a statute drawn with the requisite narrow specificity.
. . ."
"This is deemed necessary because persons whose expression is
constitutionally protected may well refrain from exercising their
rights for fear of criminal sanctions provided by a statute
susceptible of application to protected expression."
In sum, § 49-7 punishes only spoken words. It can therefore
withstand appellant's attack upon its facial constitutionality only
if, as authoritatively construed by the Louisiana Supreme Court, it
is not susceptible of application to speech, although vulgar or
offensive, that is protected by the First and Fourteenth
Amendments.
Cohen v. California, 403 U. S.
15,
403 U. S. 18-22
(1971);
Terminiello v. Chicago, 337 U. S.
1,
337 U. S. 4-5
(1949);
Gooding v. Wilson, supra, at
405 U. S. 520.
Since § 49-7, as construed by the Louisiana Supreme Court, is
susceptible of application to protected speech, the section is
constitutionally overbroad, and therefore is facially invalid.
The judgment of the Louisiana Supreme Court is reversed, and the
case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
On January 3, 1970, appellant and her husband were in their
pickup truck following a police patrol car that was taking their
young son to a police station after his arrest. An Officer Berner
in another patrol car intercepted and stopped the truck. Berner
left his car and, according to his testimony, asked the husband for
his driver's license. Words were exchanged between Berner and
appellant, and Berner arrested appellant on a charge of violating §
49-7. The parties' respective versions of the words exchanged were
in sharp contradiction. Berner testified that appellant left the
truck and
"started yelling and screaming that I had her son or did
something to her son and she wanted to know where he was. . . . She
said, 'you god damn m. f. police -- I am going to [the
Superintendent of Police] about this.'"
App. 8. Appellant's husband testified that Berner's first words
were
"'Let me see your god damned license. I'll show you that you
can't follow the police all over the streets.' . . . After
[appellant] got out and said 'Officer, I want to find out about my
son.' He said 'you get in the car, woman. Get your black ass in the
god damned car or I will show you something.'"
App. 27. Appellant denied that she had used "any profanity
toward the officer." App. 37. The Municipal Judge credited Berner's
testimony and disbelieved appellant and her husband.
[
Footnote 2]
We have no occasion in light of the result reached to address
the conflict between this view and that of the framers of the Model
Penal Code that suggests that even "fighting words" as defined by
Chaplinsky should not be punished when addressed to a
police officer trained to exercise a higher degree of restraint
than the average citizen.
See Model Penal Code § 250.1,
Comment 4 (Tent.Draft No. 13, 1961).
MR. JUSTICE POWELL, concurring in the result.
I previously concurred in the remand of this case,
408 U.
S. 913 (1972), but only for reconsideration in light of
Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942). Pursuant to the remand order, we now have
the Louisiana Supreme Court's decision construing New Orleans
Ordinance 828 M.C.S. § 49-7. I agree with the Court's conclusion
today that the Louisiana Supreme Court "did not refine or narrow
these words [of the ordinance], but took them as they stood."
Ante at
415 U. S. 132.
In conclusory language, that court construed the ordinance to
create
Page 415 U. S. 135
a
per se rule: whenever "obscene or opprobrious
language" is used "toward or with reference to any member of the
city police while in the actual performance of his duty," such
language constitutes "fighting words," and hence a violation
without regard to the facts and circumstances of a particular case.
As so construed, the ordinance is facially overbroad.
Quite apart from the ambiguity inherent in the term
"opprobrious," words may or may not be "fighting words," depending
upon the circumstances of their utterance. It is unlikely, for
example, that the words said to have been used here would have
precipitated a physical confrontation between the middle-aged woman
who spoke them and the police officer in whose presence they were
uttered. The words may well have conveyed anger and frustration
without provoking a violent reaction from the officer. Moreover, as
noted in my previous concurrence, a properly trained officer may
reasonably be expected to "exercise a higher degree of restraint"
than the average citizen, and thus be less likely to respond
belligerently to "fighting words."
408 U.
S. 913.
See Model Penal Code § 250.1, Comment 4
(Tent.Draft No. 13, 1961).
This ordinance, as construed by the Louisiana Supreme Court,
confers on police a virtually unrestrained power to arrest and
charge persons with a violation. Many arrests are made in
"one-on-one" situations where the only witnesses are the arresting
officer and the person charged. All that is required for conviction
is that the court accept the testimony of the officer that obscene
or opprobrious language had been used toward him while in
performance of his duties.
* Indeed, the
language need
Page 415 U. S. 136
not be addressed directly to the officer, since the ordinance is
violated even if the objectionable language is used only "with
reference to any member of the city police."
Contrary to the city's argument, it is unlikely that limiting
the ordinance's application to genuine "fighting words" would be
incompatible with the full and adequate performance of an officer's
duties. In arrests for the more common street crimes
(
e.g., robbery, assault, disorderly conduct, resisting
arrest), it is usually unnecessary that the person also be charged
with the less serious offense of addressing obscene words to the
officer. The present type of ordinance tends to be invoked only
where there is no other valid basis for arresting an objectionable
or suspicious person. The opportunity for abuse, especially where a
statute has received a virtually open-ended interpretation, is
self-evident.
I therefore concur in the result.
* The facts in this case, and particularly the direct conflict
of testimony as to "who said what," well illustrate the possibility
of abuse.
Ante at
415 U. S. 131 n. 1.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR.
JUSTICE REHNQUIST join, dissenting.
Mr. Justice Holmes aptly observed:
"All rights tend to declare themselves absolute to their logical
extreme."
Hudson County Water Co. v. McCarter, 209 U.
S. 349,
209 U. S. 355
(1908).
The extreme to which we allow ourselves to be manipulated by
theory extended to the end of logic is exemplified by the Court's
opinion in this case and in its blood brother of two years ago,
Gooding v. Wilson, 405 U. S. 518
(1972). The "overbreadth" and "vagueness" doctrines, as they are
now being applied by the Court, quietly and steadily have worked
their way into First Amendment parlance much as substantive due
process did for the "old Court" of the 20's and 30's. These
doctrines are being invoked indiscriminately, without regard to the
nature of the speech in question, the possible effect the statute
or
Page 415 U. S. 137
ordinance has upon such speech, the importance of the speech in
relation to the exposition of ideas, or the purported or asserted
community interest in preventing that speech. And it is no
happenstance that, in each case, the facts are relegated to
footnote status, conveniently distant and in a less disturbing
focus. This is the compulsion of a doctrine that reduces our
function to parsing words in the context of imaginary events. The
result is that we are not merely applying constitutional
limitations, as was intended by the Framers, and, indeed, as the
history of our constitutional adjudication indicates, but are
invalidating state statutes in wholesale lots because they
"conceivably might apply to others who might utter other words."
Gooding v. Wilson, 405 U.S. at
405 U. S. 535
(dissenting opinion).
The application of this elliptical analysis to
Gooding
and to this case is instructive. In
Gooding, officers were
attempting to restore public access to a building when they were
met by physical resistance and loud, personal abuse: "White son of
a bitch, I'll kill you," "You son of a bitch, I'll choke you to
death," and "You son of a bitch, if you ever put your hands on me
again, I'll cut you all to pieces." The defendant was convicted
under a Georgia statute which provided that any person
"who shall, without provocation, use to or of another, and in
his presence . . . opprobrious words or abusive language, tending
to cause a breach of the peace . . . shall be guilty of a
misdemeanor."
The Court seized upon dictionary definitions and language of
Georgia court decisions from the turn of the century. It concluded
that the statute swept beyond the bounds of the "fighting words"
limitation of
Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942), despite the fact that the language of the
statute virtually tracked the language used by the
Chaplinsky Court to describe words properly subject to
some regulation, and without any demonstration
Page 415 U. S. 138
in reason how "the narrow language of the Georgia statute has
any significant potential for sweeping application to suppress or
deter important protected speech." 405 U.S. at
405 U. S. 529
(BURGER, C.J., dissenting).
In the present case, appellant and her husband were stopped by a
police officer. Appellant's and the officer's respective versions
of the incident are conflicting, but the municipal judge credited
the officer's testimony. That finding, of course, on this record,
is binding upon us. The officer testified that, while he was
waiting for appellant's husband to produce his driver's license,
appellant came out of their truck
"and started yelling and screaming that I had her son or did
something to her son and she wanted to know where he was. I said
'lady, I don't have your son, and I am not talking to you. I am
talking to this man, and you can go sit in the truck.' She said
'you god damn m. f. police -- I am going to Giarrusso [the police
superintendent] to see about this.' I said 'lady you are going to
jail -- you are under arrest.' She said 'you're not taking me to
jail,' and she started to get back in the cab of the truck, and I
caught up to her while she was getting in the cab. I attempted to
take her, and she started fighting and swinging her arms."
App. 8. A fight ensued, and appellant was subdued with the help
of another officer. Appellant was charged with resisting arrest and
with wantonly reviling the police. She was convicted on both
charges ,but appealed only the conviction of wantonly reviling the
police.
We remanded this case to the Supreme Court of Louisiana to
construe the meaning of the ordinance. [
Footnote 2/1]
Page 415 U. S. 139
408 U. S. 913
(1972). That court, after reviewing the applicable precedents,
including
Chaplinsky and
Gooding, specifically
construed the ordinance as
"not offensive to protected speech; it is narrowed to 'fighting
words' uttered to specific persons at a specific time; it is not
overbroad, and is therefore not unconstitutional. . . . Any
reasonable man knows what it is to wantonly curse or revile. . . .
The Section definitely does not sweep within its proscriptions
all forms of abusive and derogatory speech."
263 La. 809, 826-827,
269
So. 2d 450, 456 (emphasis in original).
Again, setting the facts to one side, this Court selectively
dissects the wording of the Louisiana Supreme Court opinion, eyes
the word "opprobrious," refers us to its treatment of "opprobrious"
in
Gooding, observes that "§ 49-7 plainly has a broader
sweep than the constitutional definition of
fighting words'
announced in Chaplinsky," ante at 415 U. S. 132,
and concludes that
"we find nothing in the opinion of the Louisiana Supreme Court
that makes any meaningful attempt to limit or properly define -- as
limited by
Chaplinsky and
Gooding --
'opprobrious,' or indeed any other term in § 49-7."
Ante at
415 U. S. 133.
And, again, the ordinance is struck down with no discussion of
whether it might significantly affect protected speech, and no
reasons why the State's interest in public peace and the harmonious
administration of its laws should not prevail over a lone,
individual claim that the ordinance is unconstitutional as applied
to others. I cannot reconcile what the Court says with what the
Louisiana Supreme Court has said. I believe my Brethren of the
majority merely seek a result here, just as I was convinced they
sought a result in
Gooding.
Mr. Justice Jackson warned of the dangers of this kind of
constitutional analysis:
"But I did not suppose our function was that of a council of
revision. The issue before us is whether
Page 415 U. S. 140
what has been done has deprived this appellant of a
constitutional right. It is the law as applied that we review, not
the abstract, academic questions which it might raise in some more
doubtful case."
Saia v. New York, 334 U. S. 558,
334 U. S. 571
(1948) (dissenting opinion). Overbreadth and vagueness in the field
of speech, as the present case and
Gooding indicate, have
become result-oriented rubber stamps attuned to the easy and
imagined self-assurance that "one man's vulgarity is another's
lyric."
Cohen v. California, 403 U. S.
15,
403 U. S. 25
(1971). The danger is apparent. Inherent in the use of these
doctrines and this standard is a judicial-legislative
confrontation. The more frequent our intervention, which of late
has been unrestrained, the more we usurp the prerogative of
democratic government. Instead of applying constitutional
limitations, we do become a "council of revision." If the Court
adheres to its present course, no state statute or city ordinance
will be acceptable unless it parrots the wording of our
opinions.
This surely is not what the Framers intended, and this is not
our constitutional function. I would adhere to what Mr. Justice
Murphy, a known champion of First Amendment freedoms, wrote for a
unanimous bench in
Chaplinsky, 315 U.S. at
315 U. S.
571-572:
"Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, 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'
Page 415 U. S. 141
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,
310 U. S. 309-310."
(Footnotes omitted.)
The speech uttered by Mrs. Lewis to the arresting officer
"plainly" was profane, "plainly" it was insulting, and "plainly" it
was fighting. It therefore is within the reach of the ordinance, as
narrowed by Louisiana's highest court. The ordinance, moreover,
poses no significant threat to protected speech. And it reflects a
legitimate community interest in the harmonious administration of
its laws. Police officers in this day perhaps must be thick-skinned
and prepared for abuse, but a wanton, high-velocity verbal attack
often is but a step away from violence or passioned reaction, no
matter how self-disciplined the individuals involved. In the
interest of the arrested person who could become the victim of
police overbearance, and in the interest of the officer, who must
anticipate violence and who, like the rest of us, is fallibly
human, legislatures have enacted laws of the kind challenged in
this case to serve a legitimate social purpose and to restrict only
speech that is
"of such slight social value as a step to truth that any benefit
that may be derived from [it] is clearly outweighed by the social
interest in order and morality."
Chaplinsky, supra, at
Page 415 U. S. 142
315 U. S. 572.
[
Footnote 2/2] In such
circumstances, we should stay our hand and not yield to the
absolutes of doctrine.
I see no alternative to our affirmance, and I therefore
dissent.
[
Footnote 2/1]
"Section 47. Cursing, etc., police prohibited."
"It shall be unlawful and a breach of the peace for any person
wantonly to curse or revile or to use obscene or opprobrious
language toward or with reference to any member of the city police
while in the actual performance of his duty."
[
Footnote 2/2]
The suggestion that the ordinance is open to selective
enforcement is no reason to strike it down. Courts are capable of
stemming abusive application of statutes.
See, e.g., Norwell v.
City of Cincinnati, 414 U. S. 14
(1973). Questions of credibility, moreover, have been resolved by
courts for centuries, and there is no reason to believe the
so-called modern age requires any different treatment.