Untitled Texas Attorney General Opinion

Nay 11, 1988

Honorable David H. Cain Opinion No. m-900
Texas House of Representatives
P. 0. BOX 2910 Re: Whether the use of
Austin, Texas 78769 "abusive, indecent, pro-
fane or vulgar" language
in a public place consti-
tutes an immediate breach
of the peace (RQ-1378)

Dear Representative Cain:

Section 42.01 of the Penal Code provides in part that

(a) A person commits an offense if he
P intentionally or knowingly:

(1) uses abusive, indecent, profane, or
vulgar language in a public place, f&
the lancuaue bv its verv utterance tends
to incite an immediate breach of the
peace[.] (Emphasis added.)

Penal Code 542.01(a)(l).

you ask the following questions:

(1) Does uttering abusive, indecent, pro-
fane, or vulgar language in a public place
constitute an immediate 'breach of the
peace?'

(2) How is 'breach of the peace' defined
in relation to Article 42.01(a)(l)?

In order for this provision to withstand scrutiny under the
P broad guarantees for freedom of expression and due process
of law in the United States Constitution, the utterances
prohibited can & include "fighting words.11 Chanlinskv v.
New Hamnshire, 315 U.S. 568 (1942). See Goodins v. Wilson,
F

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Honorable David H. Cain - Page 2 (JM-900)

405 U.S. 518 (1972) and Acker v. Texas 430 U.S. 962 (1977).
See also Attorney General Opinion MW-1'(1979).l
?
Whether particular words are nfighting words" is a
matter of fact. Chanlinsky, sunra, at 573.

The test is what men of common intelligence
would understand would be words likely to
cause an average addressee to fight. . . .
Derisive and annoying words can be taken as
coming within the purview of the statute
. . . only when they have this characteristic
of plainly tending to excite the addressee to
a breach of the peace.

See Goodingv. Wilson, sunra, at 522, quoting with appro;;;
the Supreme Court of New Hampshire, 18 A.2d 754, 758,
(1941). See aenerallv, Cohen v. California, 403 U.S. 15, 20
(1971): Bachellar V. a
M rv land, 397 U.S. 564, 567 (1970); and
Goodinq, sunra. The "line between speech unconditionally
guaranteed and speech which may legitimately be regulated,
suppressed, or punished is finely drawn," Sneiser v.
Randall, 357 U.S. 513, 525 (1958).

Speech punishable under the Penal Code provision does
not include language merely harsh and insulting, see
Goodinq, a at 525, and it should not include speech,
actual or symbolic, that is only l'inappropriate,"
"naughty," "disgusting,"' "repulsive," wtactless," llgross, I1
or "appalling." Annot., 2 A.L.R.4th 1331. Conviction under
a statute specifying a "breach of the peace" as an element
of the offense must be based on jury instructions including
an admonition that proof of "actual or threatened violence
is essential." Woods v. State 213 S.W.2d 685, 687 (Tex.
Crim. App. 1948). In other words anything short of the use
of "fighting words" does not co;lstitute a breach of the
statute. &R Jimmerson v. State 561 S.W.2d 5 (Tex. Crim.
App. 1978). Speech is protected against 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." Terminello v.
Chicaao, 337 U.S. 1, 4 (1949).

1. This statute does not concern speech legally obscene
under the standards provided by the United States Supreme
Court in Wilier v. California, 418 U.S. 915 (1973). See
Snears v. State, 337 So.Zd 977 (Fla. 1976).

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 Honorable David H. Cain - Page 3 (JR-900)

Finally, because- the application of the statute may
turn largely on the factual setting of the speech at issue,
- the test is whether, in a particular instance, an average
person would be inured to respond by fighting. An average
person is not someone who is overly sensitive or overly
inured to the speech in question. Cohen. suora and Houston
v. Hill, 482 U.S. --, 96 L.Ed.2d 398 (1987), quoting from
a concurring opinion of Justice Powell in Lewis v. New
Orle ans, 415 U.S. 130, 135 (1974).

SUMMARY

Article 42.01(a)(l) of the Penal Code
applies only to speech which as a matter of
fact constitutes "fighting words." As a
matter of law, the statute does not reach
speech that merely causes public inconven-
ience, annoyance, or unrest. "Fighting
wordsl' are words which would likely cause an
average addressee to fight. An "average
addressee" is not .someone either overly
sensitive or overly inured to the speech in
question.

JIM MATTOX
Attorney General of Texas

MARYEELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General

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