dissenting.
The Court summarily reverses petitioner’s conviction for contempt of court on the grounds that the expletive which petitioner used could not by itself constitute a contempt, and that the additional “discourteous responses” petitioner made to the trial judge could not be properly considered by either the Municipal Court of Tulsa or the Oklahoma Court of Criminal Appeals which affirmed petitioner’s conviction. I disagree with the Court as to each of these grounds.
I
Even the Court appears to shy away from a flat rule, analogous to the hoary doctrine of the law of torts that every dog is entitled to one bite, to the effect that every witness is entitled to one free contumacious or other impermissible remark. The Court, quoting language from Holt v. Virginia, 381 U. S. 131, 136 (1965), says that “ ‘ [i] t is not charged that [petitioner] here ... talked loudly, acted boisterously,. or attempted to prevent the judge or any other officer of the court from carrying on his court duties.’ ” But we do not have any transcript of petitioner’s trial for contempt, and we simply do not know whether the evidence in that trial may or may not have shown that petitioner “talked loudly” or “acted boisterously” in the course of his rather unusual colloquy with the judge. Respondent in its brief in opposition *702certainly makes no concession in petitioner’s favor. If, as appears likely, neither party is in a position to furnish any judicially cognizable account of the petitioner’s contempt trial, this hiatus in the record cannot be filled in by what amounts to no more than speculation in favor of petitioner’s position:
“If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.” Adams v. United States ex rel. McCann, 317 U. S. 269, 281 (1942).
See Stroble v. California, 343 U. S. 181, 198 (1952).
II
Having assumed that the “single expletive” uttered by petitioner could not by itself constitutionally constitute a contempt, the Court goes on to hold that the Court of Criminal Appeals’ reliance on petitioner’s discourteous additional remarks during the course of his colloquy with the trial court, amounted to “treating the conviction as a conviction upon a charge not made,” in violation of Cole v. Arkansas, 333 U. S. 196 (1948). While we do not have the transcript of the contempt trial, the record does show the colloquy which occurred between petitioner and the trial judge in the Municipal Court during petitioner’s trial for an alleged violation of a Tulsa ordinance. During cross-examination in response to a question asked him by the assistant city prosecutor, the following exchange occurred (emphasis supplied):
“Q. What did you do?
“A. I sensed something from behind me and I turned maybe enough to look over my shoulder. At *703the time I turned and looked over my shoulder I could see this guy’s face and shoulders coming at me; ■almost simultaneously he hit me and he knocked me over on my back a bench down. Luckily, somebody grabbed him and pulled him back, and I got up off of my back after being knocked down on my back, wrenched my elbow, got up to a vertical posture where I would have some kind of defensibility and moved up to where I had some square footing.
“Q. What’s defensibility?
“A. I think that would be a place where you were able to get your feet to stand square so you would be half ready for some chicken shit that had jumped you from behind.
“THE COURT: Mr. Eaton, you will have until tomorrow morning to show me why you should not be held in direct contempt of this Court. I’m not going to put up with that kind of language in this Court.
“THE WITNESS: That’s fine. I don’t feel as though I need to put up with why I received this.
“THE COURT: Mr. Eaton, did you hear what I just said?
“THE WITNESS: Yes, sir.
“THE COURT: That kind of language you used in this Court, I will not put up with any more of that talk in this courtroom. That was not responsive to any type of question whatsoever and I’m not going to have profanity in this courtroom and you’re going to be held in direct contempt of this Court unless you can show me by tomorrow morning, cause why you should not be.
“THE WITNESS: Fine. I’m not going to show you anything in the morning any more than I can show you now, but I think me being asked to specu*704late as to why someone would jump on me from behind is not within any kind of realm of prosecution—
“THE COURT: The Court will be in recess.”
On November 6, 1972, petitioner returned to the court in response to the judge's direction, and was at that time found guilty of direct contempt of court in violation of another Tulsa ordinance. Petitioner was fined $50 plus costs. Petitioner appealed his conviction to the Court of Criminal Appeals of Oklahoma. His principal contention in that court was that the use of the expletive “chicken shit” was not directed at the trial judge, and also that the conviction for direct contempt was based solely on the use of the expletive, in violation of his First and Fourteenth Amendment rights.
The Court of Criminal Appeals affirmed the conviction in this language:
“Counsel submits in his brief the expletive used by defendant. . . does not constitute direct contempt per se. We find the expletive to not be the only comment in question. After studying the entire portion of the record above reproduced, we note that the record clearly manifests in its entirety discourteous responses to the trial court upon the trial court's observations made during the course of trial. In Champion v. State, Okl. Cr., 456 P. 2d 571 (1969), this Court held such discourteous responses are sufficient to warrant a citation for contempt. Coupling defendant's expletive with the discourteous responses, it is this Court's opinon there was sufficient evidence upon which the trial court could find defendant was in direct contempt of court.”
Yet the Court reverses petitioner's conviction on its determination that the trial judge “rested the conviction *705upon the use of the expletive only.” The Court reads the criminal information to charge solely the use of the expletive, and relies on the fact that the Judgment and Sentence refers specifically to the “offense” charged in the information.
The Court’s reading of the language of the information seems to me much too restrictive; the information charged that petitioner “did . . . commit a contempt of court by his insolent behavior during open court and in the presence of Judge Thomas S. Crewson, to-wit: by using the language 'chicken-shit,’ in the City of Tulsa Municipal Court . . . .” I am not prepared to say that this language would not put petitioner on notice that he was being charged with contempt of court by his course of conduct which began with the use of the expletive and ended with his discourteous remarks to the trial judge. In the absence of a transcript of the contempt proceedings, the Court is simply not in a position to know whether the trial judge based the contempt conviction solely on the use of the expletive, as the Court assumes, or whether the trial judge found petitioner guilty of contempt based on the course of conduct which began with the expletive and ended with the discourteous remarks.
The Oklahoma Court of Criminal Appeals apparently felt that the trial judge had considered the other remarks made by petitioner in finding him guilty of contempt.1 Presumably that court was aware of what the *706information charged and what the judgment and sentence said. The “Judgment and Sentence” heavily relied upon by the Court for its reference to the “[said] offense” charged in the information is simply a pre-printed standardized form in which the only thing to be filled in by the sentencing judge is the name of the defendant, the date of the judgment, the sentence imposed, and the ordinance the defendant is charged with violating.
Cole v. Arkansas, 333 U. S. 196 (1948), was a very different case from the instant one. There the petitioners were tried under an information charging them only with a violation of a section of a state statute making it an offense to promote an unlawful assemblage during a labor dispute. The trial court had instructed the jury on that section, and the jury had returned a conviction. On appeal to the Supreme Court of Arkansas, petitioners had contended that the section of the state statute violated the Constitution. Without passing on that question, the State Supreme Court sustained petitioners’ convictions on the grounds that the information charged and the evidence showed that petitioners had violated an entirely different section of the same statute, which proscribed the distinct offense of using force and violence to prevent a person from engaging in a lawful vocation. This Court reversed, noting that the trial judge had, at the request of the prosecutor, read the former section to the jury and had instructed that the “ 'offense ... on trial in this case’ ” is the “ 'promoting, encouraging or aiding of such unlawful assemblage by concert of action among the defendants as is charged in the information here.’ ” Id., at 199.
*707Here we have no basis to conclude with any degree of certainty that the petitioner’s contempt conviction rests solely on the use of the expletive. Both Street v. New York, 394 U. S. 576 (1969), and Williams v. North Carolina, 317 U. S. 287 (1942), were cases where all of the relevant lower court proceedings were incorporated in the record before this Court, and ambiguity was present despite that fact.2 Here, however, there is no such ambiguity arising out of a full record; there is instead a total absence of any record of the trial which resulted in the conviction which the Court now reverses. I have no doubt that a majority of this Court would refuse to reverse petitioner’s conviction in this case if it had a full record before it, and the record indicated that at the contempt hearing the trial judge had made it clear to petitioner that he was being charged with contempt based on the course of conduct beginning with his use of the expletive and ending with his discourteous remarks to the judge. Whatever the force of Street and Williams on their own facts, where ambiguity was present despite the fact that there was a full record available in this Court, I would not extend them to reach this case, where petitioner has failed to preserve a full record of what transpired below.
This Court each year reviews thousands of cases from the state courts, many of which, like this one, are characterized by less than perfect records. Reversal of state court judgments of conviction, especially in summary fashion, without argument, should be reserved for palpably clear cases of constitutional error. Adams v. *708United States ex rel. McCann, 317 U. S. 269 (1942); Stroble v. California, 343 U. S. 181 (1952). Since here the basis for the Court's reversal is its own highly speculative judgment as to essentially factual matters on a record which offers no more support for petitioner than it does for respondent, I dissent.
There is no indication that petitioner was so unsophisticated or perhaps even so illiterate as to be unaware that his language was inappropriate for a courtroom. To the contrary, petitioner’s statements in the courtroom, for example, “I think me being asked to speculate as to why someone would jump on me from behind is not within any kind of realm of prosecution,” indicate that he was *706not a victim of his own lack of awareness of the demands of the situation.
In addition, since I conclude that petitioner herein could constitutionally be punished for the use of the expletive, cases such as Street and Williams are for me inapposite, since they dealt with situations where the Court felt that convictions may have been based on constitutionally impermissible elements in the charges or in the evidence.