Lucas v. State

• Decision Date: 28 May 1973
• Docket Number: No. CR--73--31,CR--73--31
• Citation: 254 Ark. 584,494 S.W.2d 705
• Parties: Fred Carroll LUCAS and Ronnie Ray Lucas, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 705

494 S.W.2d 705

254 Ark. 584

Fred Carroll LUCAS and Ronnie Ray Lucas, Appellants, v. STATE of Arkansas, Appellee.

No. CR--73--31.

Supreme Court of Arkansas.

May 28, 1973.

Rehearing Denied July 2, 1973.

Fred A. Newth, Jr., Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen., by Charles A. Banks, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

Fred and Ray Lucas were convicted of abusive language defined as a breach of the peace under Ark.Stat.Ann. § 41--1412 (Repl.1964) and were sentenced to 90 days imprisonment on the Pulaski County Penal Farm. On appeal to this court they rely on a single point stated as follows:

'Ark.Stat.Ann. § 41--1412 (Repl.1964) is so vague and overbroad as to violate the freedom of speech guarantee of the First and Fourteenth Amendments to the Constitution of the United States.'

The pertinent part of § 41--1412, under which the appellants were charged and convicted, reads as follows:

'If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine of not less than five ($5.00) nor more than two hundred dollars ($200) or by imprisonment in the county jail for not less than one (1) nor more than six (6) months. . . .'

The sufficiency of the evidence to sustain the conviction is not questioned on this appeal so we shall only refer to so much of it as is necessary to this opinion. Officer J. B. Williams of the North Little Rock Police Department testified that about 11:55 P.M. he was on routine patrol in the performance of his duties, and as he drove his police patrol car through a parking lot adjacent to a motel and restaurant, he heard some loud language. He said he thought some people were fighting or something, so he rolled the glass down on his patrol car and heard one of the appellants say: 'Well, there goes the big, bad m_ _ f _ _ cops.' He said he ignored the language he heard but as he slowly drove on through the parking lot, the 'language increased and it got worse and louder.' He said that at this point it dawned on him that the appellants were referring to him. He said he drove his patrol car over near a big parking sign and the abusive language continued toward him. He said as he pulled over behind the sign, the appellants said: 'look at the _ _, _ _ hide over there behind that sign.' He said he then drove back across the parking lot and the appellants continued to curse, 'they said, 'Now the sorry son-of-a-bitch is going to come back over here. '' He said he parked his patrol car and by that time the appellants had gone inside the restaurant. He said that after he and other officers got the appellants into the patrol car under arrest, they spat on him, continued to call him s.o.b. and used other vile and obscene language about his mother and father. The exact language deleted above as well as the gutter type language concerning the officer's mother and father is set out in the record, but would be of no literary or judicial value if repeated here.

Fred Lucas testified that another officer had given his brother Ronnie a traffic ticket he and Ronnie did not think they deserved and they were angry about that. Fred Lucas said he did not remember spitting on Officer Williams. He admitted calling him a s.o.b. several times and testified that if that epithet was directed to him, it would make him angry. He did not deny using the other language attributed to him by Officer Williams.

The appellants cite several United States Supreme Court decisions as support for their argument that Ark.Stat.Ann. § 41--1412 (Repl.1964) is so vague and broad it violates the freedom of speech guaranteed by the First Amendment as applied to the states under the Fourteenth Amendment, but we find the answer to this contention in the case of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 where the United States Supreme Court said:

'It is now clear that 'Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.' Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949.

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309--310, 60 S.Ct. 900, 906, 84 L.Ed. 1213.'

The other cases cited by the appellants have to do with breaches of peace brought about by language arousing public anger or indignation under statutes considerably different from our own. The appellants rely heavily on the case of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), where a Georgia statute was struck down because it was overbroad in its application and susceptible of First Amendment violations. The Georgia statute, § 26--6303, struck down in Gooding, read as follows:

'Any person who shall,...