405 U.S. 518 (1972), 70-26, Gooding v. Wilson

Docket Nº:No. 70-26
Citation:405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408
Party Name:Gooding v. Wilson
Case Date:March 23, 1972
Court:United States Supreme Court

Page 518

405 U.S. 518 (1972)

92 S.Ct. 1103, 31 L.Ed.2d 408




No. 70-26

United States Supreme Court

March 23, 1972

Argued December 8, 1971




Georgia statute providing that

[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor,

which has not been narrowed by the Georgia courts to apply only to "fighting" words "which by their very utterance . . . tend to incite an immediate breach of the peace," Chaplinsky v. New Hampshire, 315 U.S. 568, 572, is on its face unconstitutionally vague and overbroad under the First and Fourteenth Amendments. Pp. 520-528.

431 F.2d 855, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BURGER, C.J., filed a dissenting opinion, post, p. 528. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 534. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code

Page 519

Ann. § 26-6303, which provides:

Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.

Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that § 26-6303 was facially unconstitutional was ripe for decision.1 303 F.Supp. 952 [92 S.Ct. 1105] (1969). On the merits

Page 520

of that question, the District Court, in disagreement with the Georgia Supreme Court, held that § 26-6303, on its face, was unconstitutionally vague and broad, and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. 431 F.2d 855 (1970). We noted probable jurisdiction of the State's appeal, 403 U.S. 930 (1971). We affirm.

Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, 403 U.S. 15, 122 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971). It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe

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speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," Dombrowski v. Pfister, 380 U.S. 479, 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing

attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,

id. at 486; see also Baggett v. Bullitt, 377 U.S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971); id. at 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U.S. 17, 21-22 (1960); NAACP v. Button, 371 U.S. 415, 433 (1963). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.

Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally [92 S.Ct. 1106] protected rights.

Coates v. City of Cincinnati, supra, at 619-620 (opinion of WHITE, J.) (citation omitted).

The constitutional guarantees of freedom of speech forbid the States to punish the use of words or

Page 522

language not within "narrowly limited classes of speech." Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to such a class, however, because

the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,

Speiser v. Randall, 357 U.S. 513, 525 (1958),

[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,

Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, supra, at 433.

Appellant does not challenge these principles, but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words -- "fighting" words -- "those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided:

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. . . .

Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, "long before

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the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words:

[N]o 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. . . .

* * * *

The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . .

The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee. . . .

91 N.H. 310, 313, 320-321, 18 A.2d 754, 758, 762 (1941).

In view of that authoritative construction, this Court held:

We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.

315 U.S. at 573. Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California, 403 U.S. at 20; Bachellar v. Maryland, 397 U.S. 564, 567 (1970); see Street v. New York, 394 U.S. 576, 592 (1969). We reaffirm that proposition today.

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Appellant argues that the Georgia appellate courts have, by construction, limited the proscription of § 26-6303 to "fighting" words, as the New Hampshire Supreme Court limited the New Hampshire statute.

A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which, as a matter of common knowledge and under ordinary circumstances, will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated "fighting words."

Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to...

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