LEWIS v. CITY OF NEW ORLEANS.
APPEAL FROM THE SUPREME COURT OF LOUISIANA.
Argued December 10, 1973.
Decided February 20, 1974.
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.
John Wilson Reed argued the cause and filed a brief for appellant.
Servando C. Garcia III argued the cause for appellee. With him on the brief was Blake G. Arata. [415 U.S. 130, 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). 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 [415 U.S. 130, 132] Amendments and is therefore facially invalid. Section 49-7 provides:
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:
The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
[ 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 [415 U.S. 130, 133] 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 132. In conclusory language, that court construed the ordinance to create [415 U.S. 130, 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 [415 U.S. 130, 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.
[ Footnote * ] 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.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
Mr. Justice Holmes aptly observed:
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 [415 U.S. 130, 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 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. 1 [415 U.S. 130, 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 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:
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:
I see no alternative to our affirmance, and I therefore dissent.
[ Footnote 1 ] "Section 49-7. Cursing, etc., police prohibited.
[ Footnote 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. [415 U.S. 130, 143]
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