416 U.S. 924 | SCOTUS | 1974
Dissenting Opinion
dissenting.
These cases all involve convictions under ordinances and statutes which punish the mere utterance of words variously described as “abusive,” “vulgar,” “insulting, “profane,” “indecent,” “boisterous,” and the like.
Overbreadth, on the other hand,. “offends the constitutional principle that ‘a governmental purposé to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily- broadly and thereby invade the area of protected freedoms;’ ” Zwickler v. Koota, 389 U. S. 241, 250 (1967), quoting NAACP v. Alabama, 377 U. S. 288, 307 (1964). A vague statute may be overbroad if its uncertain boundaries leave open the possibility of punishment for. protected conduct and thus lead citizens to ayoid such protected activity in order to steer clear of the uncertain proscriptions. Grayned v. City of Rockford, supra, at 109; Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). A statute is also overbroad, however, if, even though it is clear and precise, it prohibits constitutionally protected conduct. Aptheker v. Secretary of State, 378 U. S. 500, 508-509 (1964); Shelton v. Tucker, 364 U. S. 479, 488 (1960).
The statutes before us punish the mere utterance of words. They thus attempt to regulate the delicate ¿rea of speech and they are all overbroad since “as authoritatively construed [they are] susceptible of application to speech, although vulgar or offensive, that is protected by
The landmark case in the area is Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), which involved the conviction of a Jehovah’s Witness for violation of a statute prohibiting “offensive or derisive” speech. There the State Supreme Court had narrowed the- statute by construing, it as applicable only to what were referred to as “fighting'words”
We explained the rationale of Chaplinsky’s fighting-words limitation in Terminiello v. Chicago, 337 U. S. 1 (1949), which involved a "conviction under a Chicago disorderly conduct ordinance. The case grew out of a
“The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
“Accordingly a function of free speech under our system of government is to invite dispute .... Speech is often provocative and challenging. . . . That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire ... is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id., at 4.
The constitutional necessity of limiting this type of statute to words which “ ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace’ ” was expressly reaffirmed in Gooding v. Wilson, supra, at 522, where we held facially unconstitutional a Georgia statute which proscribed “opprobrious” or “abusive” language and which had been held by state courts to apply to utterances which were “not ‘fighting’ words as Chaplinsky defines them.” Id., at 525.
This principle was again enunciated in Lewis v. City of New Orleans, 415 U. S. 130 (1974), and four cases are today remanded for reconsideration in light of Lewis. If the principle announced in Lewis were new, I would agree with this disposition. Only state courts can construe these statutes since “we lack jurisdiction authoritatively to construe state legislation.” United States v. Thirtyseven Photographs. 402 U. S. 363, 369 (1971). Before we strike down a statute-as facially unconstitutional,
But experience has shown that such guidance is often unheeded. The duty of the States in this area has long been clear. After Chaplinsky, federal intervention in Terminiello should have been unnecessary. After Chaplinsky and Terminiello, Gooding should have been unnecessary. Yet after them all, the State Supreme Court in Lewis, on reconsideration in light of Gooding, again failed to narrow the ordinance and affirmed a conviction which we found necessary to reverse. The principle in Lewis was not new; it was not new in Gooding, or in Terminiello, or even in Chaplinsky.
Karlan v. City of Cincinnati, No. 73-537, involves a violation of Cincinnati Municipal Code § 901-D4, which provides:
“No person shall wilfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person or the citizens of the city or any portion thereof . . . .”
The ordinance was held by the- court below, 35 Ohio St. 2d 34, 298 N. E. 2d 573 (1973), to withstand facial constitutional attack on the authority of Cincinnati v. Hoffman, 31 Ohio St. 2d 163, 168, 285 N. E. 2d 714, 718-719 (1972), which,' rather than limit the ordinance in Chaplinsky terms, gave it blanket approval: “As reasonably construed; the ordinance néithe'r prohibits'the lawful exercise of any constitutional right nor escapes the understanding of any person of •‘common intelligence’ who desires to obey it.” The ordinance thus remains unconstitutionally overbroad since it prohibits words which are merely “rude” and has not been limited to words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Ducas v. Arkansas, No. 73-544, involves a violation of Ark. Stat. Ann. § 41-1412. (1964), which provides:
“If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to*930 cause a breach of the peace or assault, [he] shall be deemed guilty of a breach of the peace . . .
In purporting to limit the statute, the court below held:
“As we construe § 41-1412 it is narrowed to ‘fighting words’ addressed to, toward, or about another person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed or to cause a breach of the peace or an assault.” 254 Ark. 584, 589, 494 S. W. 2d 705, 708 (1973). (Emphasis added.)
This construction leaves the statute overbroad since it permits punishment for words which, though not likely to cause a breach of the peace, are “calculated” to do so. In striking down a similar construction in Gooding v. Wilson, we said: “‘[T]o make an offense of conduct which is “calculated to create disturbances of the peace” leáves wide open the standard of responsibility.’ ” 405 U. S. 518, 527, quoting Ashton v. Kentucky, 384 U. S. 195, 200 (1966). The construction here does not even require that the words be calculated to cause a breach of the peace; it is enough that they are calculated to arouse anger in the addressee.
Kelly v. Ohio, No. 72-1379, involves a violation of Codified Ordinances of the City of Kent § 509.02 (A) which provides:
“[N]o person shall willfully conduct himself in a noisy, boisterous or other disorderly manner by either words or acts which disturb the good order and quiet of the Municipality.”
While finding that petitioner’s language constituted “fighting, words,” the court below did not construe the ordinance as limited to súch words. The court below
“Defendant, maintaining freedom' of speech is constitutionally protected, declares the ordinance is unconstitutional because it punishes both protected and unprotected conduct (i. e., by words or. acts). We do 'not . find the ordinance’ overbroad as to the words used herein, nor constitutionally protected premised on the evidence before the Court, hence neither the words nor acts herein are found to be constitutionally protected.” Ohio Ct. App., No. 466 (July 31, 1972).
But, “[i]t matters not that the words [petitioner] used might have, been constitutionally prohibited under a narrowly and precisely drawn statute,” for petitioner may attack an overly broad statute without demonstrating that his own conduct could not be regulated by a more precisely drawn, act. Gooding v. Wilson, 405 U. S., at 520.
Rosen v. California, No. 72-1738, involves Calif. Penal Code § 415, which provides:
“Every person who maliciously and willfully disturbs the peace or .quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct ... or use[s] any viilgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor . . . .”
There has been no limiting construction of the “vulgar” language component of the provision. The jury here was instructed that: “Vulgar means coarse, ill-bred, ill-mannered, rude .... Profane means serving to debase or defile that which is holy or worthy of reverence . . . .
This opinion applies also to No. 73-544, Lucas v. Arkansas, supra, p. 919; No. 72-1379, Kelly v. Ohio, supra, p. 923; and No. 72-1738, Rosen v. California, supra, this page. ,
The statutes and respective authoritative constructions' are set forth in the Appendix to this ppinion, infra, p. 929.
See, e. g., State v. Brown, 68 N. H. 200, 38 A. 731 (1895).
See Cantwell v. Connecticut, 310 U. S. 296, 311 (1940).
See, e. g., Cantwell v. Connecticut, supra. Nor were Gooding and Lewis the' only recent- instances of its reaffirmance. See, e. g., Cohen v. California, 403 U. S. 15, 20 (1971); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); Street v. New York, 394 U. S. 576, 592 (1969).
Lead Opinion
Sup. Ct. Ohio. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974).