dissenting in part. Although I agree with the first two paragraphs of the syllabus in this case, I am constrained to dissent from the majority’s judgment because I believe that appellant is entitled to a new trial.
What Justice Herbert has ably accomplished by his opinion is to limit the application of Cincinnati Ordinance 901-d4 to speech not protected by the United States Constitution. This was necessary because the ordinance was overly broad, and therefore susceptible of being' struck down as facially unconstitutional.
Appellant was, however, convicted of violating the constitutionally suspect Ordinance 901-d4. In my view, that fact entitles him to have the criminality of his language specifically determined under the standards announced by the majority, and by a panel of jurors in whom we should repose the initial responsibility for judging the “fighting” nature of appellant’s words.2
The “harmless error” standard ot Chapman v. California (1967), 386 U. S. 18, has no application where the error complained of goes to the essential nature of the crime charged.