18 A.2d 754 (N.H. 1941), 3226, State v. Chaplinsky

Docket Nº3226
Citation18 A.2d 754, 91 N.H. 310
Opinion JudgePAGE
Party NameState v. Walter Chaplinsky
AttorneyFrank R. Kenison, Attorney-General, Ernest R. D'Amours, Assistant Attorney General, and John F. Beamis, County Solicitor (Mr. Kenison orally), for the State. Hayden Covington (of New York), Alfred A. Albert (of Massachusetts) and Frank E. Blackburn (Mr. Covington orally), for the defendant.
Case DateMarch 04, 1941
CourtSupreme Court of New Hampshire

Page 754

18 A.2d 754 (N.H. 1941)

91 N.H. 310



Walter Chaplinsky

No. 3226

Supreme Court of New Hampshire

March 4, 1941

Page 755

[Copyrighted Material Omitted]

Page 756

Exceptions overruled.

All concurred.


Complaint, for violation of P. L., c. 378, s. 2. Trial by jury. Verdict of guilty. The defendant seasonably moved to quash on the ground that the statute is void under Article 6, Clause 2, and the First Amendment and Fourteenth Amendment (Section 2) of the Constitution of the United States. A motion to dismiss upon the same grounds was also seasonably made. Both motions were denied, and the defendant duly excepted. At the close of all the evidence, these motions were renewed and denied, subject to exception. The defendant further moved that a verdict be directed in his favor, assigning the same grounds and asserting that (1) the evidence, taken in the light most unfavorable to the defendant, failed to justify a finding of guilt, and (2) the words charged were not such as to come within the prohibition of the statute. The defendant also excepted to the exclusion of certain remarks of his counsel in the opening statement and to certain evidence. The material facts appear in the opinion. The defendant's bill of exceptions was allowed by Burque, C. J.

Frank R. Kenison, Attorney-General, Ernest R. D'Amours, Assistant Attorney General, and John F. Beamis, County Solicitor (Mr. Kenison orally), for the State.

Hayden Covington (of New York), Alfred A. Albert (of Massachusetts) and Frank E. Blackburn (Mr. Covington orally), for the defendant.



Page 757

[91 N.H. 312] The statute involved is P. L., c. 378, s. 2, which reads thus: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation."

The complaint is that Chaplinsky, being in the street at Rochester, addressed to the City Marshal these words: "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." These words were testified to by several of the State's witnesses. The defendant admitted the words with the exception of the qualifying "God."

The section of the statute involved has two provisions. The first relates to words and names applied by one directly to another in a public place. The second refers to noises or exclamations, possibly not directed to the person derided, but with the intent expressed. The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional. Woolf v. Fuller, 87 N.H. 64, 69; Rosenblum v. Griffin, 89 N.H. 314, 320. Since the present case arises solely under the first provision, there is no need to consider either the construction or the constitutionality of the second. We shall not do so.

The provision now involved has twice been construed by this court. Nearly fifty years ago there was a conviction under it, in a case where the defendant, in

Page 758

the street, addressed to one also in the street the words "You are a God damned blackmailer." The defendant attempted to justify by proving the statement to be true. Since the statute makes no distinction between truthful and untruthful utterances, it was held that the justification was inadmissible. Construing the statute, this court said that its "purpose was to preserve the public peace. The direct tendency of such conduct, like that of [criminal] libel (4 Bl. Com. 150, 151), is to provoke the person [91 N.H. 313] against whom it is directed to acts of violence." State v. Brown, 68 N.H. 200. The decision seems to have assumed that the only intent required for conviction under the first part of the section was an intent to speak the words. In any event, that is the construction which we place upon the provision.

Again in 1900, the earlier construction was followed, and it was further held that the act applied where the words were addressed by one to another in a public highway, even though no third person was present to hear the words. State v. McConnell, 70 N.H. 294. The complaining witness, a woman, was called a bitch, with other obscene words not thought necessary to be printed in the reported decision. 209 Briefs and Cases, 521.

It thus appears that long before the words for which Chaplinsky was convicted, the construction of the provision was made plain, to the extent that no words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. This is not a case where, in advance of a judicial interpretation, the defendant could not be bound to understand what was intended by the statute. See Lanzetta v. New Jersey, 306 U.S. 451, 456.

Another point may be mentioned at once. The defendant asserts that the trial court improperly excluded evidence of, and comment on the supposed provocation of Chaplinsky growing out of his prior treatment by the crowd. We think the ruling was correct.

The "provocative matter" was this. Chaplinsky was lawfully engaged, on the streets of Rochester, in the distribution of the literature of the sect known as Jehovah's Witnesses. Some of those on the streets apparently resented his activities. They may have thought them provocative. At least they complained to the City Marshal, who says he told them that Chaplinsky was lawfully engaged and that he must be left alone. At the same time the Marshal says he informed Chaplinsky that the crowd was getting restless and that he would better go slow. Some hours later, the crowd got out of hand and treated Chaplinsky with some violence. He was then led by policemen towards the police station, though apparently more for his protection than for arrest, since his arrest was definitely fixed only after he uttered the words charged, when the Marshal met him on the way. It may be remarked that nobody concerned, taking Chaplinsky at his word, used proper restraint on this occasion, but that fact, if true, could not be a defence of his own conduct.

At the moment the defendant uttered the words for which he was [91 N.H. 314] convicted, he undoubtedly felt resentment because he had been roughly handled by the crowd. His resentment might well enough have extended to the police if they had failed to take any step reasonably within their power to control the crowd, or if they had failed to prosecute anybody who they had reasonable ground to believe had assailed him. But those facts, if true, would not have justified the offensive manner in which he sought to bring the Marshal to what Chaplinsky may have regarded as a sense of his duty. It was not useful or proper comment for bringing truth to light. Its plain tendency was to further breach of order, and it was itself a breach of the peace.

The excluded evidence related solely to Chaplinsky's recital of what he conceived was his mission to "preach the true facts of the situation of the Bible to the people," of "the Christian's permission," and of certain acts of the crowd that seem to have happened outside of the knowledge of the police. As to any possible provocation he had suffered while in the presence of the police, his testimony appears to have been admitted, though immaterial to the issue of his guilt. The court, in any event, was correct in excluding as immaterial the issues (1) whether the police had been neglectful prior to his offense, (2) whether the defendant had been assaulted by the crowd, and (3) whether, the defendant, in consequence, had been provoked to use the words with which he was charged. The defendant's argument as to this exclusion comes to this--that if he was provoked, the truth of his appellation of the Marshal could be established.

Page 759

The truth would be no justification. State v. Brown, supra.

The rule thus established is not severe. Chaplinsky could no more defend unlawful speech on the ground of provocation than could one of the street-crowd have defended a charge of calling Chaplinsky names on the ground that the name-caller had been incensed by Chaplinsky's teachings. The defendant was held to the same duties as those who disagreed with him or with whom he disagreed. The rules of fair conduct in public speech in the street apply indiscriminately to all--whether the speaker be a preacher, an official or a mere by-stander.

The defendant was not entitled to a directed verdict unless the statute is unconstitutional.

Upon the question of constitutionality, the defendant asserts infringement of the fundamental liberties of speech, press and worship. Since he did not print his words or circulate them in printed form, and since the words have no perceptible connection with worship [91 N.H. 315] or with freedom of religious belief or practice, we shall confine ourselves to the subject of free speech, though cognate rights may have illustrative effect in the course of this discussion.

The right to speak freely, whether in a street or elsewhere, is of primary importance. That is a principle whose general validity nobody denies, and nobody ought ever to deny. But the right may be limited in appropriate situations. The question is whether the limitation imposed by our statute is constitutionally permissible.

The fundamental basis of the constitutional rule is the necessity for full and free discussion of all subjects which affect ways of life, including religious, social and governmental questions. This is "essential to the very existence and perpetuity of free government." Cooley, Constitutional Limitations, (7th ed.), 596.

"No one can doubt the importance, in a free government, of a right...

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