dissenting.
I respectfully dissent from the majority opinion because I believe the legislature did intend in KRS 525.070 only to prohibit the use of abusive language which would provoke an assault.
Further I do not agree with the application of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) and Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), in this case.
Free speech is guaranteed by the First Amendment of the United States Constitution as well as by Section Eight of the Kentucky Constitution. This sacred right is not absolute at all times and under all *479conditions. The seminal case of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) isolates those utterances that are not an essential part of any exposition of ideas and of slight value as a step to the truth. An example of speech that is not protected by the First Amendment is “fighting words,” those words, which by their very utterance tend to incite an immediate breach of the peace. The Court of Appeals was correct when it determined that the Kentucky General Assembly did not intend KRS 525.070 to apply to protected speech. The commentary to the statute states that KRS 525.070 replaces KRS 436.150 which prohibited profane cursing or swearing and KRS 437.020 which prohibited the use of abusive language to provoke an assault. Therefore I believe it was the intent of the legislature to create a statute which would prohibit the use of spoken words which would provoke an assault.
Gooding, supra, provides that a Georgia statute which is similar to the Kentucky statute was on its face unconstitutionally vague and overbroad in violation of the constitution because the state courts had not by construction limited the statutory proscription to fighting words. In this instance, the Court of Appeals has done exactly that and this Court has followed the wrong path in reversing that decision.
It is clearly within the constitutional mandate of Gooding, to interpret the statute so as to only apply to “fighting words.” The Kentucky statute, by giving its words their commonly understood meaning has no potential for application outside of the area of “fighting words.”
In regard to Kolender, supra, I believe that a criminal statute is not unconstitutionally vague on its face unless it is imper-missibly vague in all possible applications. In my view the legislature has provided minimal guidelines in this criminal statute so as to avoid any personal abuse by prosecutors or police.
United States v. Sturgill, 563 F.2d 307 (6th Cir.1977) holds only that the Kentucky Harassment Statute was unconstitutionally defective insofar as it could not be used as a vehicle for prosecution in federal courts under federal law. Sturgill, supra, notes that the statute might withstand a constitutional attack if the Kentucky courts construed the speech involved as not protected by the First Amendment. In the absence of such decision by the Kentucky courts, the harassment conviction was reversed in Sturgill.
Although I do not favor judicial legislation, this situation provides the court with the opportunity to perform its proper role by interpreting a legitimate Kentucky statute so as to support the legislation. The invitation has been issued by the majority of the United States Supreme Court in Gooding when it determined that a similar Georgia statute was facially unconstitutional because a state court had not interpreted the statute to be limited to “fighting words.” Courtesy demands that we accept this invitation.
I would affirm the decision of the Court of Appeals.
VANCE, J., joins in this dissent.