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LEWIS v. CITY OF NEW ORLEANS
Lewis v. City of New Orleans
Factual and Procedural Background
On January 3, 1970, the appellant and her husband were driving in their pickup truck behind a police patrol car that was transporting their young son to a police station following his arrest. Another patrol car, driven by Officer Berner, intercepted and stopped the truck. Berner exited his vehicle and, according to his testimony, requested the husband's driver's license. A verbal exchange then occurred between Berner and the appellant.
Officer Berner testified that the appellant exited the truck, began yelling and screaming about her son, and stated, “you god damn m. f. police — I am going to [the Superintendent of Police] about this.” The appellant's husband testified that Berner's initial remarks were profane and threatening toward him and the appellant, and the appellant herself denied using any profanity toward the officer. The Municipal Judge credited Berner's testimony and disbelieved the appellant and her husband.
The appellant was arrested and charged, among other things, with violating New Orleans Ordinance 828 M.C.S. § 49-7, which 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 appellant was convicted in municipal court on the § 49-7 charge (and also on a resisting arrest charge, which she did not pursue on appeal). The Louisiana Supreme Court sustained her conviction under § 49-7. The United States Supreme Court initially remanded the case to the Louisiana Supreme Court for reconsideration in light of Gooding v. Wilson, 405 U.S. 518 (1972), and later noted probable jurisdiction, 412 U.S. 926 (1973), after the Louisiana court again upheld the conviction and sustained the ordinance. In the decision summarized here, the United States Supreme Court reviews that post-remand Louisiana judgment, reverses it, and remands for further proceedings not inconsistent with its opinion.
Legal Issues Presented
- Whether New Orleans Ordinance 828 M.C.S. § 49-7, which criminalizes “wantonly” cursing, reviling, or using “obscene or opprobrious language” toward or with reference to a police officer in the performance of his duty, is overbroad and therefore facially invalid under the First and Fourteenth Amendments.
- Whether the Louisiana Supreme Court’s construction of § 49-7 as limited to “fighting words” is sufficient to save the ordinance from a facial overbreadth challenge when the court did not meaningfully narrow or refine the operative terms, particularly “opprobrious language.”
- Whether, in light of the Court’s overbreadth doctrine as articulated in Gooding v. Wilson, the appellant may mount a facial attack on the ordinance even if the particular words she used might be punishable under a properly drawn, narrower law.
Arguments of the Parties
Appellant's Arguments
- The opinion describes the appellant as mounting “an attack upon [the ordinance’s] facial constitutionality,” contending that § 49-7, as construed by the Louisiana Supreme Court, violates the First and Fourteenth Amendments because it is overbroad and “susceptible of application to speech, although vulgar or offensive, that is protected” by the Constitution.
- The appellant’s position, as reflected in the Court’s discussion, relied on the overbreadth doctrine recognized in Gooding v. Wilson, under which a person may challenge a statute regulating speech on its face when “no readily apparent construction suggests itself as a vehicle for rehabilitating the statute in a single prosecution,” even if her own conduct might be punishable under a more narrowly drawn measure.
City's Arguments
- The Louisiana Supreme Court, emphasizing the city’s justification, stressed the governmental interest in regulating “the conduct of any person towards a member of the city police while in the actual performance of his duty,” and reasoned that “[p]ermitting 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.”
- Justice Powell’s concurrence reports that, “contrary to the city's argument,” the city asserted that limiting the ordinance’s application strictly to genuine “fighting words” would be incompatible with the “full and adequate performance” of police officers’ duties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gooding v. Wilson, 405 U.S. 518 (1972) |
Reaffirmed the constitutional definition of “fighting words” from Chaplinsky; held that statutory terms such as “opprobrious” could render a law overbroad where they reach words “conveying or intended to convey disgrace” beyond “fighting words.” Articulated that, in the First Amendment context, facial overbreadth challenges are permitted when statutes regulating speech are susceptible of application to protected expression and “no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution.” |
The Court remanded this case to the Louisiana Supreme Court “for reconsideration in light of Gooding.” On review of the post-remand judgment, the Court relied on Gooding to conclude that the term “opprobrious language” in § 49-7, as in the Georgia statute in Gooding, extends beyond “fighting words” and thus renders the ordinance overbroad. The Court also expressly “reaffirm[ed]” its holding in Gooding that a defendant may attack an overly broad statute regulating speech on its face “with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” |
| Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) |
Defined “fighting words” as those “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In the dissent’s quotation, further described certain “well-defined and narrowly limited classes of speech” (lewd and obscene, profane, libelous, and insulting or “fighting” words) as not raising constitutional problems because they are of “such slight social value” relative to the social interest in order and morality. |
The majority treated the Chaplinsky definition as the constitutional benchmark for evaluating whether the Louisiana ordinance was limited to unprotected “fighting words.” It held that § 49-7 “plainly has a broader sweep” than this definition and thus captures protected speech. Justice Powell’s concurrence noted that words may or may not be “fighting words” depending on circumstances, again referring to the Chaplinsky standard. The dissent relied heavily on Chaplinsky to argue that the appellant’s speech fell squarely within punishable “fighting words.” |
| Cohen v. California, 403 U.S. 15 (1971) |
Cited for the principle that speech may be vulgar or offensive yet still be protected by the First and Fourteenth Amendments, and that a statute punishing spoken words may survive facial scrutiny only if not susceptible of application to such protected expression. |
The Court referenced Cohen in explaining that, because § 49-7 “punishes only spoken words,” it can withstand a facial challenge “only if, as authoritatively construed,” it is not susceptible of application to constitutionally protected, even if vulgar or offensive, speech. Finding that the ordinance, as construed, did reach such speech, the Court deemed it overbroad and facially invalid. |
| Terminiello v. Chicago, 337 U.S. 1 (1949) |
Cited alongside Cohen and Gooding for the principle that laws regulating speech must be drawn so as not to reach protected expression, even where the speech is provocative. |
The Court invoked Terminiello as one of the authorities supporting its conclusion that a statute punishing only spoken words must, to survive a facial constitutional attack, be construed so that it is not “susceptible of application” to protected speech. This underpinned the determination that § 49-7 is overbroad. |
| Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908) |
Quoted in the dissent for Justice Holmes’ observation that “[a]ll rights tend to declare themselves absolute to their logical extreme.” |
Justice Blackmun cited this case to criticize what he viewed as the majority’s extension of the overbreadth and vagueness doctrines “to the end of logic,” suggesting that the Court was allowing abstract First Amendment theory to dominate practical adjudication. |
| Saia v. New York, 334 U.S. 558 (1948) |
Quoted in the dissent (Justice Jackson’s dissent in Saia) for the principle that the Court’s role is to review “the law as applied” to an appellant, not “abstract, academic questions” the law might raise in hypothetical cases. |
Justice Blackmun relied on this quotation to argue against the majority’s use of facial overbreadth analysis, contending that the Court was acting as a “council of revision” by invalidating statutes based on speculative applications to others rather than on the law’s application to the particular appellant. |
| Cantwell v. Connecticut, 310 U.S. 296 (1940) |
Cited in the dissent through a quotation in Chaplinsky for the proposition that “resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.” |
Justice Blackmun used this reference to support his view that the appellant’s profane and insulting remarks to the officer were not constitutionally protected and thus fell within a category of speech that may be punished without raising constitutional problems. |
| Norwell v. City of Cincinnati, 414 U.S. 14 (1973) |
Cited in the dissent for the proposition that courts are capable of preventing abusive or selective enforcement of statutes. |
Justice Blackmun invoked Norwell to answer concerns that the ordinance was subject to selective enforcement, arguing that such potential is “no reason to strike it down” because courts can control abusive applications. |
| Lewis v. City of New Orleans (La. Sup. Ct.), 263 La. 809, 269 So.2d 450 (1972) |
The Louisiana Supreme Court decision on remand from the U.S. Supreme Court, which upheld the appellant’s conviction and construed § 49-7 as “narrowed to ‘fighting words’ uttered to specific persons at a specific time,” while taking the ordinance’s operative words “as they stood” without additional refinement. |
The U.S. Supreme Court treated this state-court decision as the authoritative construction of § 49-7 and evaluated the ordinance’s constitutionality in light of that construction. It concluded that, despite the Louisiana court’s characterization, the ordinance as construed still swept more broadly than the constitutional “fighting words” definition and remained susceptible of application to protected speech, necessitating reversal. |
| Lewis v. City of New Orleans, 408 U.S. 913 (1972) |
Order by the U.S. Supreme Court remanding the case to the Louisiana Supreme Court for reconsideration in light of Gooding v. Wilson (and, as noted by Justice Powell, in light of Chaplinsky). |
The opinion references the 408 U.S. 913 order to explain the procedural history: the Louisiana Supreme Court’s post-remand decision construing § 49-7 is what the U.S. Supreme Court now reviews and reverses. |
| Lewis v. City of New Orleans, 412 U.S. 926 (1973) |
Order noting probable jurisdiction in the U.S. Supreme Court after the Louisiana Supreme Court reaffirmed the conviction on remand. |
Cited solely to record that the Court took jurisdiction of the appeal prior to issuing the present decision. |
Court's Reasoning and Analysis
The Court began by identifying the controlling constitutional framework. Section 49-7 “punishes only spoken words,” so it could survive a facial challenge only if, as authoritatively construed by the Louisiana Supreme Court, it was not susceptible of application to speech, “although vulgar or offensive,” that remains protected by the First and Fourteenth Amendments. The Court cited Cohen v. California, Terminiello v. Chicago, and Gooding v. Wilson in support of this requirement.
The Louisiana Supreme Court, on remand, had stated that § 49-7 is “narrowed to ‘fighting words’ uttered to specific persons at a specific time” and that its “proscriptions are narrow and specific — wantonly cursing, reviling, and using obscene or opprobrious language.” However, the U.S. Supreme Court observed that the Louisiana court “did not refine or narrow these words, but took them as they stood.” The Court therefore examined the text, particularly the phrase “opprobrious language,” against the constitutional definition of “fighting words” announced in Chaplinsky and reaffirmed in Gooding.
Under Chaplinsky, “fighting words” are “those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Court held that § 49-7 “plainly has a broader sweep” than this definition. It found it “evident” that the Louisiana Supreme Court contemplated a broader reach from the state court’s emphasis on the city’s interest in regulating “the conduct of any person towards a member of the city police while in the actual performance of his duty” and in declaring that permitting cursing or reviling police officers would be “unreasonable and basically incompatible with the officer's activities and the place where such activities are performed.” This focus suggested concern with maintaining decorum around police officers rather than confining punishment to the narrow class of unprotected “fighting words.”
The Court then examined the key statutory term “opprobrious language.” It noted that, in Gooding v. Wilson, it had already construed the same term in a Georgia statute and concluded that “opprobrious” includes words “conveying or intended to convey disgrace.” Because that meaning extends beyond words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” the term is not intrinsically limited to “fighting words.” The Court found “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.” Accordingly, “at the least,” the proscription of “opprobrious language” in § 49-7 necessarily embraces speech outside the constitutionally narrow “fighting words” category.
Having determined that the ordinance’s reach, as construed, extended beyond “fighting words,” the Court turned to the overbreadth doctrine. It quoted and reaffirmed its prior statement in Gooding that “it matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute.” When statutes “regulate or proscribe speech” and no “readily apparent construction” exists to rehabilitate them in a single case, the “transcendent value to all society of constitutionally protected expression” justifies allowing facial attacks on overly broad laws without requiring the challenger to show that her own conduct could not be regulated by a properly narrow law. This protection is necessary, the Court stated, because persons engaged in constitutionally protected expression “may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.”
Applying that doctrine, the Court concluded that, because § 49-7 remains susceptible of application to protected speech despite the Louisiana Supreme Court’s purported limitation to “fighting words,” it is constitutionally overbroad and “therefore is facially invalid.” The Court stressed that, under this analysis, it is “immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance.”
Justice Powell, concurring in the result, agreed that the Louisiana Supreme Court “did not refine or narrow” the ordinance’s words but instead treated the use of “obscene or opprobrious language” toward or with reference to police officers as a per se category of “fighting words,” regardless of the surrounding facts and circumstances. He emphasized that whether particular words are “fighting words” depends on context and that a trained police officer may be expected to exercise “a higher degree of restraint” than the average citizen. He expressed concern that, as construed, the ordinance confers on police “a virtually unrestrained power to arrest and charge” based solely on their own testimony in “one-on-one” situations, and that such ordinances tend to be used where no other valid basis for arrest exists.
Justice Blackmun’s dissent, joined by the Chief Justice and Justice Rehnquist, criticized the majority’s reliance on overbreadth and vagueness doctrines, likening their use to the expansion of substantive due process in earlier eras. He argued that the Louisiana Supreme Court had adequately narrowed the ordinance to “fighting words,” that the appellant’s language was plainly profane, insulting, and “fighting,” and that the ordinance posed “no significant threat to protected speech.” He contended that the Court should focus on the law “as applied” to the appellant rather than hypothetical applications to others, and warned that the majority’s approach effectively makes the Court a “council of revision” invalidating statutes “in wholesale lots.”
Holding and Implications
The Court held that New Orleans Ordinance 828 M.C.S. § 49-7, as construed by the Louisiana Supreme Court, is overbroad and facially invalid under the First and Fourteenth Amendments because it is susceptible of application to constitutionally protected speech.
Holding: The judgment of the Louisiana Supreme Court sustaining the appellant’s conviction under § 49-7 is REVERSED, and the case is REMANDED for further proceedings not inconsistent with the U.S. Supreme Court’s opinion.
Implications: The immediate effect of the decision is that the appellant’s conviction under § 49-7 cannot stand, and the ordinance, as authoritatively construed by the Louisiana Supreme Court, may not be enforced because of its facial overbreadth. The Court did not announce a new doctrinal framework but reaffirmed and applied its existing overbreadth jurisprudence, particularly as articulated in Gooding v. Wilson and grounded in the “fighting words” definition from Chaplinsky v. New Hampshire. The opinion focuses on the direct consequences for enforcement of the challenged ordinance and does not purport to establish broader, independent constitutional rules beyond this application of existing First Amendment principles.
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, 572; Gooding v. Wilson, supra, at 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 525. It is immaterial whether the words appellant used might be punishable under a properly limited ordinance. Pp. 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. 134. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 136.
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). 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 Amendments and is therefore facially invalid. Section 49-7 provides:
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.
"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, 572 (1942), and reaffirmed in Gooding v. Wilson, supra, at 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.
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).
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 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 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 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, 18-22 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949); Gooding v. Wilson, supra, at 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.
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 132. In conclusory language, that court construed the ordinance to create 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 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."
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 131 n. 1.
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.
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, 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 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 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 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 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. 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).
"Section 49-7. 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."
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 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 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 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, 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, 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 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' 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, 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 572. In such circumstances we should stay our hand and not yield to the absolutes of doctrine.
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.
I see no alternative to our affirmance, and I therefore dissent.
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