Lewis v. City of New Orleans

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 *137ordinance 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 demonstra*138tion 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 *139408 U. S. 913 (1972). That court, after reviewing the applicable precedents, including Chaplinsky and Good-ing, 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:

“But I did not suppose our function was that of a council of revision. The issue before us is whether *140what 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 rubberstamps 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’ *141words — 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 *142572.2 In such circumstances we should stay our hand and not yield to the absolutes of doctrine.

I see no alternative to our affirmance, and I therefore dissent.

“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.”

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.