People v. Cerbone

CourtNew York Town Court
Citation449 N.Y.S.2d 903,113 Misc.2d 740
PartiesPEOPLE v. CERBONE.
Decision Date23 April 1982

Page 903

449 N.Y.S.2d 903
113 Misc.2d 740
PEOPLE

v.
CERBONE.
Town Court of the Town of Harrison.
April 23, 1982.

Page 904

Carl Vergari and Nicholas Maselli, White Plains, for the people.

B. Anthony Morosco, White Plains, for defendant.

HARVEY J. FRIED, Town Justice.

Defendant has been tried on two informations charging him with harassment in that he is alleged to have directed abusive and obscene language at the complainants, in a public place, with intent to harass, annoy or alarm them.

At the outset, it is necessary to consider the precise elements of the charge both under the statute, Penal Law § 240.25(2) and under the Constitution particularly in view of defendant's claim that any words he may have spoken are shielded from prosecution by his First Amendment right of free speech.

The constitutional issue in this context does not appear to have been decided previously in this state. Guidance, therefore, must be found in a trilogy of United States Supreme Court decisions addressing the issue under similar statutes enacted in other states: Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) which upheld a defendant's conviction under a New Hampshire statute prohibiting the use of "offensive, derisive or annoying" words; Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), which reversed a defendant's conviction under a California law punishing the malicious and willful disturbance of the peace by offensive conduct; and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) in which the Supreme Court struck down a Georgia statute outlawing the use of "opprobrious words or abusive language, tending to cause a breach of the peace."

The common theme uniting the cases, despite superficially divergent results, is that the free expression of opinion cannot be abridged, however false, unpopular or even offensive the opinion may be; further, that the state lacks the power to punish the choice of words used to express those opinions, however, vulgar, insulting or even painful the words may be.

The cases recognize, however, a class of utterance which is not protected by the Constitution. These utterances are referred to as "fighting words" and have been defined by the Supreme Court to mean, those personally abusive words of epithets which, when addressed to a person of common intelligence and sensitivity, are inherently likely to provoke an immediate and violent reaction, i.e., a fight.

Page 905

There are, of course, a great many opinions and a very great many offensive, personally distasteful words with which to express them, which may provoke a violent reaction in the listener. Yet, if those words serve to convey or dispute a viewpoint,--however disreputable that viewpoint--then the Constitution's protection is absolute. It is only where the words are uttered as a deliberate challenge to a breach of the peace, with communication of thought a mere incidental concomitant, that a prosecution may lie. The extreme example of such cases, of course, is that of the legendary western gunfighter taunting his reluctant victim into a fatal "first draw". It is to provide an alternative to the shootout, not to inhibit the exposition of thought, that we...

To continue reading

Request your trial
1 practice notes
  • People v. Livio
    • United States
    • New York District Court
    • December 22, 2000
    ...to punish the choice of words used to express opinions, however vulgar, insulting or even painful the words may be. (People v Cerbone, 113 Misc 2d 740 [Harrison Town [187 Misc.2d 307] Ct, Westchester County 1982].) Constitutionally guaranteed liberties are to be accorded a most liberal cons......
1 cases
  • People v. Livio
    • United States
    • New York District Court
    • December 22, 2000
    ...to punish the choice of words used to express opinions, however vulgar, insulting or even painful the words may be. (People v Cerbone, 113 Misc 2d 740 [Harrison Town [187 Misc.2d 307] Ct, Westchester County 1982].) Constitutionally guaranteed liberties are to be accorded a most liberal cons......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT