*1 v. CITY OF TULSA EATON No. 73-5925. Decided March Per Curiam.

In answering question on cross-examination at his trial, in the Municipal Court Tulsa, Oklahoma, for violating a municipal ordinance, petitioner referred to alleged an assailant as “chicken shit.” In consequence prosecuted he was and convicted under an information charged him with “direct contempt,” violation of another Tulsa ordinance, “by his insolent behavior during open court and in presence judge], [the .” . . . 'chicken-shit’ using to wit: unreported in an Appeals, Criminal Court Oklahoma *2 affirmed. opinion, order and vernacular, of street usage single isolated This cannot court, the of officer any or judge at the directed con- criminal of support the constitutionally not alone used language of the “The vehemence tempt. The contempt. punish to power the the measure imminent, not an constitute must it kindles fires which justice.” the administration threat to likely, merely In using (1947). 367, 376 331 S. Harney, U. Craig on cross-examina- question the answering expletive the [petitioner] disobeyed here charged that tion is not “[i]t boisterously, acted order, loudly, court talked any valid or other officer judge attempted prevent or Holt v. court duties.” carrying of the court from on his Little, In re Virginia, (1965); 381 U. S. see also In the (1972). circumstances, the use thus cannot be to “constitute an im- held justice.” . . threat minent to the administration of . In affirming, the Court of Criminal however, Appeals rejected petitioner’s contention that the conviction must resting taken as solely expletive. the use of the Rather, court concluded from its examination of the trial record that, addition the use of the exple- tive, petitioner made responses” “discourteous to the trial The judge. court therefore held the conviction should be affirmed because “[c]oupling defendant’s ex- pletive with the discourteous it responses, is this Court’s opinion there was sufficient upon evidence which the trial could find defendant inwas direct contempt of court.” (Emphasis supplied.)

However, question is not upon what evidence the judge trial could find petitioner guilty but upon what evi- dence the judge trial did find petitioner guilty. There since transcript contempt proceeding is no proceeding stenographically was not recorded. trial judge did, however, “Judgment Sentence,” enter a and we clearly read that document to establish upon rested the -.conviction use of the expletive only. single For the charge of “insolent be specified havior” the information was “to wit: using ,” 'chicken-shit^ . . . the Judg expressly ment and Sentence, referring the informa records that tion, was “duly legally tried and convicted of and, said further, that “the offense” hereby adjudge Court does now and sentence the said defendant for said him (Em committed.” offense phasis supplied.) The Court of Appeals Criminal thus *3 petitioner denied process constitutional due in sustaining the trial treating the conviction as a conviction upon a charge Arkansas, not made. Cole v. 333 U. S. 196 (1948).* *Assuming, arguendo, (1) sufficiently that the charged information

petitioner for both of the allegedly use and his “dis- responses,” (2) courteous and that there was evidence of the latter offense, required, reversal is “negate still since the record fails possibility,” the Street York, v. New 576, 394 (1969), that solely the conviction was part based or in on the use of the expletive. single-count .. . charges “[W]hen information the com- mission of a crime virtue of the having defendant’s done both a constitutionally protected may act one unprotected, and be guilty and a verdict elucidation, ensues without unaccept- there is an danger able that the trier of regarded fact will have the two acts as 'intertwined’ and have rested the conviction together.” on both Ibid. Stromberg Cf. California, Collins, 283 U. S. (1931); Thomas v. (1945); 323 U. S. Bachellar v. Maryland, (1970). 397 U. S. 564 principle And this limited, is be, not nor should it to cases in which may the conviction have been protected based on speech. See Williams v. Carolina, North 317 U. S. (1942). 291-292 Here, “Judgment the only and Sentence” not dispel does not the possibility that solely was based partially or and the pauperis proceed motion

The forma is judgment the granted, are certiorari for petition proceed- further remanded case is reversed, opinion. with this inconsistent not ing ordered. is so

It concurring. Powell, Mr. Justice I write opinion. curiam per the Court’s I concur in understanding my clear briefly to make only used holding. Whether of its scope limited exer- during justified trial in a courtroom by petitioner upon the facts. depended contempt power cise a con- imposition here, the circumstances Under process him due petitioner denied tempt against sanction of law. by petitioner phrase “chicken shit” used believed person petitioner whom

a characterization of opinion, noted in the Court’s it was assaulted him. As con- anyone officially directed at the trial or controlling fact, nected with the court. But my view, that emphasized, one should petitioner prior warning received no or from caution respect trial judge etiquette. to court It may be, well in view of contemporary standards as to use vulgar profane even language, partic- this ular had no reason believe ex- this *4 pletive would offensive in way or disruptive of proper courtroom decorum. Language to likely offend sensibility of some listeners is now fairly common- place in many gatherings social as well public as in performances.

I place high a premium on the importance of main- taining civility good order in the courtroom. But expletive, on the use of the plainly but supports opposite conclusion. summary of crim- remedy before there is resort to the party the court at least owes the con- contempt, inal or warning. cerned some sort of notice No doubt there so in which a outburst are circumstances courtroom justify response by judge egregious summary surely not specific without but this is such warning, a case. Rehnquist, Justice with whom Chief

Mr. dissenting. join, Justice and Mr. Justice Blackmun petitioner’s summarily The Court reverses of on the grounds court that used could not itself constitute a con- tempt, responses” that the additional “discourteous petitioner made to the trial judge properly could not be considered either Municipal Court of Tulsa or the Oklahoma Appeals Court of Criminal which affirmed I disagree conviction. with the Court as each of grounds. these appears

Even the Court to shy away rule, from a flat analogous hoary doctrine the law of torts that dog every is entitled to one to the bite, every effect that witness is entitled to one free contumacious or other impermissible remark. The Court, quoting language Holt Virginia, from says 136 (1965), “ ‘ not charged t is [petitioner] [i] here ... talked loudly, acted or boisterously,. attempted to prevent or any other officer from carrying ” his court duties.’ we do not any transcript But have of petitioner’s trial for contempt, simply we do not know whether the evidence may may or have shown that petitioner loudly” “talked or “acted boisterously” in the course his rather unusual colloquy judge. with the Respondent brief opposition its *5 If, as in favor. petitioner’s no concession makes certainly position is in a to furnish party neither appears likely, contempt petitioner’s account of the cognizable judicially by what filled in record cannot be hiatus the this trial, peti- speculation than in favor no more amounts to position: tioner’s not to adjudicatory process

“If the result much asking is not too naught, be set it at be sustained showing burden of essential unfairness injustice him claims such and seeks to have who it be not as aside, the result set and that sustained speculation a matter of as a demonstrable real- but McCann, Adams v. United States ex rel. ity.” (1942). 269, 281 California, v. 343 U. (1952). See Stroble S.

II Having “single expletive” assumed that uttered by petitioner itself consti- constitutionally could hold contempt, goes tute the Court Court Appeals’ petitioner’s of Criminal reliance on dis- during courteous additional remarks the course of his colloquy with the trial amounted court, “treating upon a conviction made,” a charge not Arkansas, violation of Cole (1948). 333 U. S. 196 we do not have transcript While trial, record does show the colloquy which occurred between and the trial Municipal Court during trial for an alleged violation of a Tulsa ordinance. During cross-examination in response question to a asked him by city the assistant prosecutor, the following exchange occurred (emphasis supplied):

“Q. you What did do? I “A. sensed something from behind me turned maybe enough to my look over shoulder. At *6 I my time turned and looked over I shoulder guy’s coming me; could see this face and shoulders at n almost he simultaneously hit me and he knocked my me over on back a bench down. some- Luckily, him I body grabbed pulled back, got him and and my being my off of back after knocked down up on my elbow, got wrenched back, up posture to vertical I defensibility where have some kind of would I up square footing. moved to where had some “Q. defensibility? What’s I place you “A. think that would be a where were you would get your square able to feet to stand so ready jumped be half for some chicken that had shit from you behind. you

“THE COURT: until Eaton, Mr. will have morning why tomorrow to show me should not you contempt be held in direct of this I’m not Court. going put up to with of language that kind in this Court.

“THE I WITNESS: That’s don’t as fine. feel though I put need Iwhy to up received this.

“THE COURT: Mr. Eaton, you did hear what I just said?

“THE Yes, WITNESS: sir.

“THE COURT: kind That of you used in I Court, put up this will not with any more of that talk in this courtroom. That not was responsive any to type of question whatsoever I’m go- not ing profanity to have in this courtroom you’re going to be held direct contempt of this Court unless you can show byme tomorrow morning, cause why you should not be.

“THE WITNESS: Fine. I’m not going to show you anything in morning any more than can now, show you but I think me being specu- asked to me jump would why someone late from realm kind within behind of of prosecution— in recess.” will be The Court

“THE COURT: court returned to 1972, petitioner On November that time was at direction, and judge's response violation direct guilty found plus fined $50 Petitioner Tulsa ordinance. another the Court his conviction appealed costs. Petitioner con- principal His of Oklahoma. Appeals of Criminal *7 expletive the use of the in court was that tention judge, not directed at the “chicken shit” contempt was based conviction for direct also in of his solely expletive, use of the violation rights. First Fourteenth Amendment The Appeals Court of Criminal affirmed the conviction in this language: expletive

“Counsel submits brief the used his by contempt defendant. . . does not constitute direct per only se. We find the to not expletive be the in question. studying comment After the entire portion of the record above reproduced, we note that clearly record manifests its entirety discour- responses teous to the trial upon court the trial court's observations during made the course of trial. In Champion State, Okl. P. 2d 571 Cr., (1969), this Court held such responses discourteous are sufficient to warrant a citation for contempt. Coupling defendant's expletive with the discourteous responses, it is this opinon Court's there was sufficient upon evidence which the trial court could find de- fendant was in direct contempt of court.” Yet the Court petitioner's reverses conviction on its determination that the trial “rested judge the conviction expletive only.” The Court reads use of the upon charge solely the use of the information to the criminal Judgment the fact that and relies on expletive, charged in specifically to the “offense” refers Sentence the information. of the informa- reading language Court’s restrictive; much the information

tion seems to me too contempt . “did . . commit petitioner charged open court and during his insolent behavior by Crewson, to-wit: presence Judge Thomas S. Mu- in the of Tulsa language 'chicken-shit,’ City using the say that this prepared . . . .” am not nicipal Court he was put petitioner would not on notice that contempt of court his course being charged began with the use of the of conduct to the trial and ended with his discourteous remarks transcript In the absence of a judge. position in a

proceedings, simply the Court contempt con- judge the trial based the know whether the Court expletive, on the use of the solely viction whether the trial found assumes, or of conduct which contempt based on the course guilty of *8 ended with the discourteous began with the remarks. Appeals apparently Court of Criminal

The Oklahoma other re- judge felt that the trial had considered the him of con- by petitioner finding guilty made marks Presumably court was aware of the tempt.1 that what unsophisticated was or There is no indication so as be unaware that his was perhaps even so illiterate to contrary, inappropriate for a courtroom. To the state courtroom, example, being “I me in the think asked ments why jump speculate someone on me from behind is not would prosecution,” he kind of realm of indicate that within and sen- judgment the and what charged information re- heavily “Judgment and Sentence” The tence said. to the reference “[said] for its by the Court upon lied pre- simply a is in the information charged offense” thing to only the in which standardized form printed the name sentencing judge is filled in the im- the sentence judgment, defendant, the date of charged with defendant and the ordinance the posed, violating. (1948), very was a dif- Arkansas,

Cole v. petitioners the instant one. There the ferent case from charging only them were tried under an information it of- making a violation of a section of a state statute an assemblage during an unlawful labor promote fense to on jury court had that sec- dispute. trial instructed jury and the had a conviction. tion, appeal returned On Supreme Arkansas, petitioners Court of had con- tended that the section of the state statute violated the Constitution. passing question, Without on Supreme State petitioners’ Court sustained convictions on grounds charged information and the evidence petitioners showed that entirely had violated an section of the statute, proscribed same different the distinct offense using force pre- and violence to vent a person from engaging in a lawful vocation. This Court reversed, noting that the trial at had, request of the prosecutor, read the former section to “ the jury and had instructed that 'offense ... ” “ in this case’ is the 'promoting, encouraging or aiding of such unlawful assemblage concert of action among the defendants as is charged in the information ” Id., here.’ at 199.

not a victim of his own lack of awareness of the demands of the situation. *9 cer- any degree to conclude with of

Here we have no basis solely contempt conviction rests tainty petitioner’s that the York, v. New of Both Street expletive. on the use Carolina, v. North and Williams (1969), 394 U. S. all S. 287 were cases where of the relevant (1942), U. proceedings were in the record incorporated lower present ambiguity despite before this was Court, Here, however, arising fact.2 there is no such ambiguity a full there is a total of record; out of instead absence which in the record resulted conviction I have no a Court now reverses. doubt that would majority this Court refuse to reverse if had full it, this case it record before contempt and the record indicated that hearing at the made petitioner the trial had it clear to he being charged was with based on the course of conduct beginning his use with his discourteous remarks ending to the judge. Street Whatever force of and Williams on their own facts, ambiguity present despite where the fact that there was a full record available in this would Court, not extend them reach this petitioner where case, has to preserve failed a full record of transpired what below. year This Court each reviews thousands of cases courts, from the state many which, one, like this are perfect characterized than less records. Reversal of judgments state court of conviction, especially in sum- mary fashion, without argument, should be for reserved palpably clear cases of constitutional error. Adams v. addition, In since I conclude that herein could consti tutionally punished expletive, use of the cases such as inapposite, Street and Williams are for me they since dealt with situations where the Court felt that may convictions have been based constitutionally impermissible charges elements inor evidence. *10 McCann,

United States ex rel. (1942); 317 U. S. 269 California, Stroble v. (1952). here Since the basis for the Court's reversal is its own highly specula- tive judgment essentially as to factual matters on a record which offers no more support for than it does respondent, dissent.