(dissenting). I respectfully dissent. While I agree with the majority’s disposition of the first two issues, I do not agree that defendant was given a fair trial before a properly instructed jury on the issue of whether or not he had had the right to resist an arrest, the charge on which he was convicted.
*549As stated in the majority’s opinion, there was a marked divergence in the testimony of the prosecution and defense witnesses, with other evidence supporting each of the versions. The version recounted by the police officers depicted defendant violently and repeatedly yelling obscenities at the police officers and telling them to get off the property, while defendant testified that he had not done this but had, instead, merely calmly and coolly called the police officers bastards. During his closing argument, the prosecutor stated:
"Even if you take the defendant’s version of what happened, if you want to do that, that all he did was coolly and calmly and rationally call the officers bastards. I submit that that in and of itself under the language of the statute or the city ordinance makes him guilty — makes the arrest a lawful arrest for disorderly conduct.”
Defense counsel then asked the trial court to instruct the jury that defendant would not have been legally arrested under the First Amendment had he merely used the word "bastard”. The question of the legality of the arrest was critical to defendant’s defense of justified resistance to an unlawful arrest — if the arrest were legal, defendant would not have had the right to resist the arrest.1 The trial court refused this request, citing *550Michigan v De Fillippo, 443 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979). The court reasoned that because Coldwater’s ordinance had never been declared unconstitutional and because the language of the ordinance was very broad, whether or not merely calling police officers "bastards” would violate the ordinance was a question for the jury.
In De Fillippo, the defendant was arrested under a Detroit municipal ordinance which made it illegal to falsely identify oneself if stopped and questioned pursuant to the ordinance. After the defendant was arrested, the police found marijuana in his pockets and phencyclidene in a pack of cigarettes. In the trial court, the defendant moved to suppress this evidence and his motion was denied. On appeal to this Court, the Court held the ordinance unconstitutional because it was too vague, and ordered the evidence suppressed as the product of an illegal search and arrest, People v De Fillippo, 80 Mich App 197; 262 NW2d 921 (1977), lv den 402 Mich 921 (1978). The case was eventually appealed to the United States Supreme Court. Michigan v De Fillippo, supra.
The United States Supreme Court reversed this Court’s decision to suppress the evidence. The Supreme Court held that the original arrest had been made pursuant to a presumptively valid ordinance, had been legal, and that merely because the ordinance was later held to be unconstitutional did not by itself invalidate the otherwise legal arrest:
"Police are charged to enforce laws until and unless *551they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality * * *. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.” 443 US 38; 99 S Ct 2632; 61 L Ed 2d 350.
This holding has been interpreted to mean that "[t]he validity of the arrest is not affected by the subsequent judicial determination that the ordinance is unconstitutional”. People v Hunter (On Remand), 94 Mich App 50, 52; 287 NW2d 366 (1979). See also Green v District of Columbia, 228 US App DC 365; 710 F2d 876 (1983).
This holding must, however, be viewed in its proper context. De Fillippo involved a determination that a lawful search and seizure incident to an arrest under a presumptively valid ordinance is not rendered unlawful simply because the ordinance is later declared unconstitutional. De Fillippo does not declare that no arrest may ever be found unlawful simply because it was made pursuant to a presumptively valid ordinance or statute. For instance, De Fillippo did not invalidate the entire body of jurisprudence which requires that an arresting police officer have probable cause to arrest before making an arrest. In addition, De Fillippo did not overrule United States Supreme Court precedent which forbids arresting and convicting a person for exercising his First Amendment right to free speech. Instead, De Fillippo merely declares that where an arrest or search and seizure incident to an arrest was otherwise lawful, it is not rendered unlawful because the ordinance is later found to be unconstitutional.
Thus, the question before us is whether or not defendant could be lawfully arrested under the Coldwater ordinance for clamly calling a police *552officer a "bastard” where the ordinance had never been declared unconstitutional. I believe that he could not be lawfully arrested for such conduct, and that defendant was therefore entitled to the jury instruction requested by him.
The First Amendment of the United States Constitution protects most forms of expression — even those which may be considered distasteful, vulgar, or offensive to another person. This was made clear in Cohen v California, 403 US 15; 91 S Ct 1780; 29 L Ed 2d 284 (1971), where the Supreme Court reversed the conviction of a defendant arrested and convicted for wearing a coat emblazoned with the words "fuck the draft”:
"Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 US 25; 91 S Ct 1788; 29 L Ed 2d 294.
This freedom of expression is not, however, without its limits. In Chaplinsky v New Hampshire, 315 US 568, 572; 62 S Ct 766, 769; 86 L Ed 1031, 1035 (1942), the Supreme Court held that "fighting words” are outside the protection of the First Amendment. As defined by the Supreme Court, "fighting words” are words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace”. Thus, to withstand constitutional scrutiny under either a vagueness *553or overbreadth analysis, a statute or ordinance must either facially comply with the requirements of the First Amendment or be amenable to interpretation so as to comply with those requirements. Gooding v Wilson, 405 US 518; 92 S Ct 1103; 31 L Ed 2d 408 (1972); Oak Park v Smith, 79 Mich App 757; 262 NW2d 900 (1977); People v Klein, 67 Mich App 556; 242 NW2d 436 (1976); People v Purifoy, 34 Mich App 318, 320; 191 NW2d 63 (1971).
According to defendant’s evidence at trial, defendant was arrested for calmly referring to a police officer as a "bastard”. Arguably, under the terms of the Coldwater ordinance, this would constitute "offensive coarse language” used "with the purpose to harass or harm another or with reckless disregard of the sensibility of another” and would therefore be grounds for an arrest. However, the mere fact that protected conduct or protected speech arguably is prohibited by an ordinance does not, by itself, legally justify the arrest. Here, defendant’s version of the events describes protected speech. In Oak Park v Smith, supra, the defendant, while involved in a minor traffic altercation, had given a plainclothes police officer "what is commonly known as the finger, by extending his index finger upward, and his lips were observed to move in what [the officer] believed to be an obscene utterance”. 79 Mich App 759. This Court found that these actions under the facts of the case did not constitute the use of "fighting words”, although they could well be considered "immature” and hurtful to the officer’s pride. 79 Mich App 762. In this case, the described conduct may also have been immature and offensive, but the calm use of the word "bastard” as described by defendant, especially to a police officer, does not inflict injury or tend to incite an immediate breach of the peace:
*554"[A] properly trained officer may reasonably be expected to 'exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to 'fighting words.’” Lewis v New Orleans, 415 US 130, 135; 94 S Ct 970, 973; 39 L Ed 2d 214, 220 (1974) (Powell, J., concurring).
Therefore, if the Coldwater ordinance were to be interpreted to prohibit defendant’s version of his conduct, the ordinance would be unconstitutional as being overly broad. This Court, however, has the duty to interpret statutes and ordinances so as to preserve their constitutionality. As was done by this Court in Oak Park, supra, I would, therefore, narrowly interpret the Coldwater ordinance to prohibit only the use of "fighting words”.
As so interpreted, the Coldwater ordinance cannot prohibit the conduct described by defendant. Assuming defendant’s version of the events to be correct, the police officers therefore lacked probable cause to believe that defendant had violated the ordinance as constitutionally interpreted. Probable cause is the mandatory minimum essential for a lawful arrest. United States v Watson, 423 US 411, 417; 96 S Ct 820, 824-825; 46 L Ed 2d 598, 605 (1976); People v Hamoud, 112 Mich App 348, 351; 315 NW2d 866 (1981), lv den 414 Mich 959 (1982). Thus, under the law of this state, defendant was entitled to resist. (See footnote 1.)
A similar factual situation was presented to the Maryland Court of Appeals in Diehl v State, 294 Md 466; 451 A2d 115 (1982), cert den 460 US 1098; 103 S Ct 1798; 76 L Ed 2d 363 (1983). There, the defendant was stopped for a traffic offense and responded by yelling obscenities at the police officer. The defendant was then arrested for disorderly conduct but resisted and temporarily escaped. After he was apprehended, he was con*555victed of disorderly conduct and two counts of resisting arrest. The Maryland Court of Appeals first interpreted the ordinance prohibiting disorderly conduct so that it complied with the mandates of the First Amendment. As so interpreted, the court found that the defendant’s conduct did not amount to "fighting words”: "In such tense moments, one man’s vulgarity may well be another’s vernacular.” 451 A2d 122. The court then found that since the correctly-interpreted ordinance did not prohibit the defendant’s conduct, the police officer had lacked probable cause to arrest the defendant under the ordinance. The arrest had therefore been unlawful and the defendant had therefore been entitled to resist.
Under this analysis, the trial court in this case erred by denying defendant’s request for an instruction to the jury that, if the jury believed defendant’s version, defendant was entitled to resist arrest. The failure to give this instruction requires reversal of defendant’s conviction for resisting arrest because it directly affects the jury’s determination that defendant was not entitled to resist. I do not agree with the majority that this Court can assume that the jury disregarded the prosecutor’s incorrect statement of the law and followed defense counsel’s argument on the ordinance, especially when the jury was expressly instructed to take the exposition of the law only from the court and not from the attorneys. In addition, the jury was never instructed that the police could not have arrested defendant under the ordinance for doing what he claimed he had done, even though that statement was the very heart of defendant’s defense. The court refused to support defendant’s defense with a properly requested and correct instruction on the law. I would reverse the conviction on the first count.
An element of resisting arrest is that the defendant resisted an authorized officer who was legally arresting him. Hence, if defendant’s arrest was in fact illegal, he had the right to reasonably resist the arrest. People v Krum, 374 Mich 356; 132 NW2d 69 (1965), cert den 381 US 935; 85 S Ct 1765; 14 L Ed 2d 699 (1965); People v Stark, 120 Mich App 350; 327 NW2d 474 (1982); People v Eisenberg, 72 Mich App 106; 249 NW2d 313 (1976), lv den 401 Mich 803 (1977); People v Gray, 23 Mich App 139; 178 NW2d 172 (1970).
I note, however, that outside this state the modern trend has been away from this common law rule toward a rule which provides that even if the arrest is illegal, the arrestee may not resist: "It should be possible to provide adequate remedies against illegal arrest, without *550permitting the arrested person to resort to force — a course of action highly likely to result in greater injury even to himself than the detention.” ALI Model Penal Code, art 3, § 3.04(2), comment. See also People v Dillard, 115 Mich App 640, 645; 321 NW2d 757 (1982), (Knoblock, J., dissenting), and Anno., Modern Status of Rules As to Right to Forcefully Resist Illegal Arrest, 44 ALR3d 1078, 1087-1090.