(dissenting).
I dissent. Appellant’s version of the incident and that of the officer differed. However, the trial court accepted the officer’s version and that conclusion, of course, is binding upon us.
[I]t 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 eases 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” words — 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 out-weighed by the social interest in order and morality. [Emphasis added.]
Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words”, those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.
Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).
As can be seen the ordinance punishes verbal acts. A conviction must rest upon the essential offensiveness of the words. The test of the offensiveness of the words is whether they “are inherently likely to provoke an immediate violent reaction in an average person.” The test is not whether they are inherently likely to provoke an immediate violent reaction’in the particular person to whom they are addressed. There is no doubt in my mind that those words are so insulting and offensive that they would provoke an immediate violent reaction in the average person.
There is yet another aspect of the majority opinion with which I am in fundamental disagreement and that is that “a trained police officer is not an average person.” Implicit in this statement is the position that ordinances and statutes such as the subject ordinance do not apply to them, the rationale being that police officers by reason of the nature of their work and training become inured to being reviled. Assuming, but not necessarily agreeing, that they do become inured, this in my opinion certainly does not justify such a position. Police officers are a vital part of the criminal justice system, and in regard to engendering and maintaining respect for law and order perhaps the most vital part, in that they are the part that the great majority of people have the most frequent contact, if not the only contact. To hold, therefore, that individuals can revile police officers with impunity is to foster disrespect for law and order.
I would affirm.