73-544 | SCOTUS | Apr 15, 1974
Dissenting Opinion
dissenting.
A North Little Rock policeman On routine patrol drpve his car at midnight through a parking lot adjacent to "a motel and restaurant. He heard loud language and thought a fight was in progress. He rolled the window down and heard one of the appellants say, “Well, there goes the big, bad mother fucking-cops.” He ignored this and slowly drove on.. The language grew louder. He pulled over behind a large parking sign. An appellant said, “Look at the chicken shit mother fucker hide over there behind that sign.” He drove back. An appellant then said, “Now the sorry son-ofra-bitch is going to come back over here.” Appellants'were arrested and convicted of.breaching the peace, in violation of Arkansas law.
The Arkansas. Court has already clearly construed § 41-1412 to apply only to “fighting words,” as defined in Chaplinsky v. New Hampshire, 315 U.S. 568" court="SCOTUS" date_filed="1942-03-09" href="https://app.midpage.ai/document/chaplinsky-v-new-hampshire-103632?utm_source=webapp" opinion_id="103632">315 U. S. 568, 572 (1942), in Gooding v. Wilson, 405 U.S. 518" court="SCOTUS" date_filed="1972-03-23" href="https://app.midpage.ai/document/gooding-v-wilson-108492?utm_source=webapp" opinion_id="108492">405 U. S. 518, 523-525 (1972), and in Lewis, supra, at 132. That court, in Holmes v. State, 135 Ark. 187" court="Ark." date_filed="1918-07-08" href="https://app.midpage.ai/document/holmes-v-state-7809514?utm_source=webapp" opinion_id="7809514">135 Ark. 187, 204 S. W. 846 (1918), held that the statute was narrow in its scope. “It is not sufficient that the language used gives offense to the person to whom or about whom it is addressed, but it must be that which in its ordinary acceptation is calculated to give offense and to arouse to anger.” 135 Ark. 187" court="Ark." date_filed="1918-07-08" href="https://app.midpage.ai/document/holmes-v-state-7809514?utm_source=webapp" opinion_id="7809514">135 Ark., at 189, 204 S. W., at 847. In its opinion in this case, the Arkansas Court reaffirmed its prior interpretation: of the statute:
“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. We can conceive of no stronger ‘fighting words’ than those employed by the appellants in this case, and there is substantial evidence they were calculated to arouse to anger the officer to whom they were spoken or addressed. As a matter of fact the appellant, Fred Lucas, admits that if the mildest of the epithets employed by him, were directed to or about him, it would arouse him to anger.” 254 Ark. 584" court="Ark." date_filed="1973-05-28" href="https://app.midpage.ai/document/lucas-v-state-7819186?utm_source=webapp" opinion_id="7819186">254 Ark., at 589-590, 494 S. W. 2d, at 708.
I am at a loss to understand what this Court further requires in a narrowing interpretation under its version of the Chaplinsky standard espoused in Gooding.
Ark. Stat. Ann. §41-1412 (1964) 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 cause a breach of the peace or an assault, [he} shall be deemed guilty of a breach of the peace . . .
The standard of responsibility is not'left open as the Court said
In Chaplinsky, the Court accepted a limiting construction .which held that the statute was “not to bé defined in terms of what a particular addressee thinks. _. . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” 315 U.S. 568" court="SCOTUS" date_filed="1942-03-09" href="https://app.midpage.ai/document/chaplinsky-v-new-hampshire-103632?utm_source=webapp" opinion_id="103632">315 U. S., at 573. In its Holmes case, the Arkansas Supreme Court pronounced exactly the same standard: “It is not sufficient that the language used gives offense "to the person to whom or about whom it .is addressed, but it .must be that which in its ordinary acceptation is calculated to give offense and to arouse to anger.” 135 Ark. 187" court="Ark." date_filed="1918-07-08" href="https://app.midpage.ai/document/holmes-v-state-7809514?utm_source=webapp" opinion_id="7809514">135 Ark., at 189, 204 S. W., at 847.
My Brother. Douglas asserts that the principle enunciated in Gooding and Lewis is not “new.” It hardly needs stating, however, that the speech at issue in Cantwell v. Connecticut, 310 U.S. 296" court="SCOTUS" date_filed="1940-05-20" href="https://app.midpage.ai/document/cantwell-v-connecticut-103355?utm_source=webapp" opinion_id="103355">310 U. S. 296 (1940), and in Terminiello v. Chicago, 337 U.S. 1" court="SCOTUS" date_filed="1949-06-13" href="https://app.midpage.ai/document/terminiello-v-chicago-104668?utm_source=webapp" opinion_id="104668">337 U. S. 1 (1949), and the manner and place of delivery, are not at all similar to the speech at issue in Chaplinsky, Gooding, and Lewis. - •
Cantwell was a case where the State sought to punish Jehovah’s Witnesses, who claimed to be ordained ministers, for a message which attacked the Catholic religion. This the State could not do. But we expressly noted that the case involved “no assaultf'ér threatening of bo.dily harm, no truculent, bearing, no intentionál discourtesy, no personal abuse.” 310 U.S. 296" court="SCOTUS" date_filed="1940-05-20" href="https://app.midpage.ai/document/cantwell-v-connecticut-103355?utm_source=webapp" opinion_id="103355">310 U. S., at 310. In Terminiello the petitioner was arrested for an address made under the auspices df the Christian Veterans of- America. Our concern there was the protection of
Before we. rush headlong into scrapping legislative enactments that on théir face, or as applied, appear. to interfere with some form of speech, we should pause long enough to inquire into “the nature of the speech in question, the possible effect the statute or ordinance has upon such .speech, the importance of the speech in relation to the exposition of.ideas., [and] the purported or asserted community interest in preventing that speech.” Lewis v. City of New Orleans, 415 U.S. 130" court="SCOTUS" date_filed="1974-02-20" href="https://app.midpage.ai/document/lewis-v-city-of-new-orleans-108965?utm_source=webapp" opinion_id="108965">415 U. S. 130, 136-137 (1974) (dissenting opinion).
Lead Opinion
Appeal from Sup. Ct. Ark. Judgment, vacated and case remanded for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974). [For dissenting opinion of Mr. Justice Douglas, see infra, p. 924.]