Lewis v. City of New Orleans 8212 6156

• Decision Date: 20 February 1974
• Docket Number: No. 72,72
• Parties: Mallie LEWIS, Appellant, v. CITY OF NEW ORLEANS. —6156
• Court: U.S. Supreme Court

415 U.S. 130

94 S.Ct. 970

39 L.Ed.2d 214

Mallie LEWIS, Appellant,

v CITY OF NEW ORLEANS.

No. 72—6156.

Argued Dec. 10, 1973.

Decided Feb. 20, 1974.

Syllabus

On remand from this Court for reconsideration in light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, appellant's conviction of violating a New Orleans ordinance making it unlawful 'to curse or revile or to use obscene or opprobrious language toward or with reference to' a police officer while in performance of his duties was again sustained by the Louisiana Supreme Court, which did not narrow or refine the words of the ordinance although stating that it was limited to 'fighting words' uttered to specific persons at a specific time. Held: The ordinance, as thus construed, is susceptible of application to protected speech, and therefore is overbroad in violation of the First and Fourteenth Amendments and facially invalid. The ordinance plainly has a broader sweep than the constitutional definition of 'fighting words' as being words 'which by their very utterance inflict injury or tend to incite an immediate breach of the peace,' Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031; Gooding v. Wilson, supra, 405 U.S., at 523, 92 S.Ct., at 1106, since, at the least, 'opprobrious language' embraces words that do not fall under that definition, the word 'opprobrious' embracing words 'conveying or intended to convey disgrace,' id., at 525, 92 S.Ct., at 1107. It is immaterial whether the words appellant used might be punishable under a properly limited ordinance. Pp. 131-134.

263 La. 809, 269 So.2d 450, reversed and remanded.

John Wilson Reed, New Orleans, La., for appellant.

Servando C. Garcia, III, New Orleans, La., for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

Upon the Louisiana Supreme Court's reconsideration of this case in light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), pursuant to our remand, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972), that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M.C.S. § 49-7, 263 La. 809, 269 So.2d 450 (1972).¹ We noted probable jurisdiction, 412 U.S. 926, 93 S.Ct. 2756, 33 L.Ed.2d 153 (1973), and we reverse. We hold that § 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth Amendments and is therefore facially invalid. Section 49-7 provides:

'It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'

The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: 'The proscriptions are narrow and specific—wantonly cursing, reviling, and using obscene or opprobrious language.' 263 La., at 827, 269 So.2d at 456. Nonetheless, that court took the position that, as written, 'it (§ 49-7) is narrowed to 'fighting words' uttered to specific persons at a specific time . . ..' Id., at 826, 269 So.2d, at 456. But § 49-7 plainly has a broader sweep than the constitutional definition of 'fighting words' announced in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), and reaffirmed in Gooding v. Wilson, supra, 405 U.S., at 522, 92 S.Ct., at 1106, namely, 'those (words) which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of 'the conduct of any person towards a member of the city police while in the actual performance of his duty . . .. Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed.' 263 La., at 825, 269 So.2d, at 456.² At the least, the proscription of the use of 'opprobrious language,' embraces words that do not 'by their very utterance inflict injury or tend to incite an immediate breach of the peace.' That was our conclusion as to the word 'opprobrious' in the Georgia statute held unconstitutional in Gooding v. Wilson, where we found that the common dictionary definition of that term embraced words 'conveying or intended to convey disgrace' and therefore that the term was not limited to words which 'by their very utterance inflict injury or tend to incite an immediate breach of the peace.' 405 U.S., at 525, 92 S.Ct., at 1107. The same conclusion is compelled as to the reach of the term in § 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define—as limited by Chaplinsky and Gooding—'opprobrious,' or indeed any other term in § 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in Gooding v. Wilson, supra, at 520-521, 92 S.Ct., at 1105, in this respect:

'It matters not that the words (appellant) used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," . . . 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' . . .. 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.'

In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, 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, 18-22, 91 S.Ct. 1780, 1784, 1787, 29 L.Ed.2d 284 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949); Gooding v. Wilson, supra, 405 U.S., at 520, 92 S.Ct., at 1105. Since § 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid.

The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice POWELL, concurring in the result.

I previously concurred in the remand of this case, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972), but only for reconsideration in light of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 82 L.Ed. 1031 (1942). Pursuant to the remand order, we now have the Louisiana Supreme Court's decision construing New Orleans Ordinance 828 M.C.S. § 49-7. I agree with the Court's conclusion today that the Louisiana Supreme Court 'did not refine or narrow these words (of the ordinance), but took them as they stood.' Ante at 132. In conclusory language, that court construed the ordinance to create a per se rule. Whenever 'obscene or opprobrious language' is used 'toward or with reference to any member of the city police while in the actual performance of his duty,' such language constitutes 'fighting words' and hence a violation without regard to the facts and circumstances of a particular case. As so construed, the ordinance is facially overbroad.

Quite apart from the ambiguity inherent in the term 'oppobrious,' words may or may not be 'fighting words,' depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, 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.' 408 U.S. 913, 92 S.Ct. 2499. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961).

This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in 'one-on-one' situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in performance of his duties.^* Indeed, the language need not be addressed directly to the officer since the ordinance is violated even if the objectionable language is used only 'with reference to any member of the city police.'

Contrary to the city's argument, it is unlikely that limiting the ordinance's application to genuine 'fighting words' would be incompatible with the full and adequate performance of an officer's duties. In arrests for the more common street crimes (i.e., robbery, assault, disorderly...