State v. Authelet, No. 76-219-A

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: KELLEHER; PAOLINO
• Citation: 120 R.I. 42,385 A.2d 642
• Decision Date: 11 April 1978
• Docket Number: No. 76-219-A
• Parties: , 5 A.L.R.4th 942 STATE v. Michael E. AUTHELET. ppeal.

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385 A.2d 642 120 R.I. 42, 5 A.L.R.4th 942 STATE
v.
Michael E. AUTHELET. No. 76-219-Appeal. Supreme Court of Rhode Island. April 11, 1978.

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[120 R.I. 58] Julius C. Michaelson, Atty. Gen., Nancy Marks Rahmes, Sp. Asst. Atty. Gen., for plaintiff.

Aram K. Berberian, Cranston, for defendant.

OPINION

[120 R.I. 44] KELLEHER, Justice.

On September 3, 1974, at approximately 8:15 p. m. police Officer Peter F. Coutu was on a routine motor patrol in the city of Warwick when he received a radio message directing him to go to the intersection of Green River and West Shore Roads. The dispatcher's directive marked the third time during that tour of duty that Officer Coutu had been ordered to investigate a disturbance at this location. The police had once again received a complaint about the conduct of a group of "boisterous, drinking, swearing" young men who had gathered near a milk store and who, once they saw the police approaching, would flee into a nearby wooded area. As he began his third trip to the Green River-West Shore intersection, the officer decided a change of strategy was in order. Consequently, he headed for the woods rather than to the milk store. When the group saw the other cruisers proceeding along the highway, Authelet and three of his companions ran into the woods. There, to their surprise, was Officer Coutu. He arrested the quartet and charged each of them with violating G.L. 1956 (1969 Reenactment) § 11-11-5, which provides:

"Every person who shall be guilty of profane swearing and cursing shall be fined not exceeding five dollars ($5.00)."

At a jury-waived trial in the Superior Court, Officer Coutu testified that as he stood in the woods and watched his fellow officers approach the corner, he heard Authelet yell: "Here come the god damn fucking pigs again." The [120 R.I. 45] officer testified that the three companions were yelling at his fellow officers, but he could not recall any of the "swear words" used by the respective defendants. As a result of this testimony the trial justice acquitted Authelet's companions and found him guilty of violating the statute. Before us Authelet claims that the statute is void because its vagueness violates his constitutional right to due process, and he also asserts that the statute impinges upon his first amendment right of free speech.

I. Due Process

Nobody questions the fundamental principle which says that the state may not hold an individual " 'criminally responsible for conduct which he could not reasonably understand to be proscribed.' " State v. Levitt, R.I., 371 A.2d 596, 598 (1977), quoting Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185, 188 (1975), and United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct.

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808, 812, 98 L.Ed. 989, 996 (1954). This constitutional mandate is founded upon our system's concept of fairness. If a criminal act is set forth in a statute in uncertain terms, the innocent may be trapped by inadequate warning of what the state forbids. State v. Picillo, 105 R.I. 364, 252 A.2d 191 (1969). In addition, without explicit standards to guide those who administer the law, there is always the threat of arbitrary and discriminatory enforcement and the inhibiting of the exercise of basic freedoms. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

The standard employed to gauge whether a particular statutory term reasonably informs an individual of the criminality of his conduct is whether the disputed verbiage provides adequate warning to a person of ordinary intelligence that his conduct is illegal by common understanding and practice. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); State v. Milne, 95 R.I. 315, 187 A.2d 136 (1962), appeal dismissed, 373 U.S. 542, 83 S.Ct. 1539, 10 L.Ed.2d 687 (1963).

[120 R.I. 46] We commence our "definiteness" appraisal by directing our initial focus to the question of whether the phrase "profane swearing and cursing" in and of itself lacks the clarity and specificity required of a statutory prohibition without regard to § 11-11-5's possible impingement upon Authelet's right to free speech. In testing whether a statutory term provides a defendant with fair warning of what the state forbids, we look to its common law meaning, its statutory history, and prior judicial interpretations. State v. Levitt, R.I., 371 A.2d at 598. Although the term "profane swearing and cursing" has never been judicially defined, the word "profane" has been interpreted in numerous instances by state and federal courts. These courts have invariably held the word to mean any words importing an imprecation of divine vengeance or implying divine condemnation or irreverence toward God or holy things. Duncan v. United States, 48 F.2d 128 (9th Cir. 1931); Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944); Centazzo v. Canna, 110 R.I. 507, 293 A.2d 904 (1972); Town of Torrington v. Taylor, 59 Wyo. 109, 137 P.2d 621 (1943).

In Karp v. Collins, 310 F.Supp. 627 (D.C.N.J.1970), rev'd on other grounds sub nom., Kugler v. Karp, 401 U.S. 930, 91 S.Ct. 933, 28 L.Ed.2d 210 (1971), the Court held that "profane" is a word which has by its frequent use and application established an understanding of its meaning definite enough to justify its use in a statutory provision. It has long been used without constitutional objection on vagueness grounds in the area of federal regulation of radio broadcasts, Tallman v. United States, 465 F.2d 282 (7th Cir. 1972); Duncan v. United States, 48 F.2d 128 (9th Cir. 1931), and has also been inferentially approved by the United States Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In Chaplinsky the Court observed that there have always been certain classes of speech, such as profanity, the [120 R.I. 47] prevention and punishment of which, in appropriate circumstances, have never raised a constitutional problem. Although § 11-11-5 includes the element of "swearing and cursing" which was not present in the Duncan, Tallman, or Chaplinsky cases, we do not believe that the appendage of "swearing and cursing" changes the definition of "profane." "Swearing and cursing" is merely the act of speaking the forbidden words and does not qualify the type of language that is made criminal.

While we must grant that the term "profane swearing and cursing" is hardly a paragon of precision, we can hardly expect mathematical certainty from our language. Grayned v. City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2300, 33 L.Ed.2d at 228-29. Consideration must be given to the latitude of the field and the consequent impracticability of rigid legislative criteria. State v. Milne, 95 R.I. at 323, 187 A.2d at 140. Surely, it would have been a near impossibility for the General Assembly to set forth in a statute a more specific definition of the proscribed language given the multitudinous

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ways an individual can call down the divinity's condemnation upon his neighbor or inveigh holy things. As the Supreme Court observed in Rose v. Locke, 423 U.S. at 49, 96 S.Ct. at 244, 46 L.Ed.2d at 188, in upholding a Tennessee statute making it a crime for a person to commit "crimes against nature," the prohibition against excessively vague statutory language "does not invalidate every statute which a reviewing court believes could have been drafted with greater precision." We find, therefore, that given the commonly understood and established meaning of the word "profane" and its inclusion in criminal statutes by both state and federal legislatures, the use of the term in § 11-11-5 was a sufficient warning to protect defendant's due process rights.

II. Free Speech

When the state seeks to proscribe merely spoken words, as is the case with § 11-11-5, the United States Supreme Court [120 R.I. 48] has ruled that it may constitutionally do so only with "narrow specificity," NAACP v. Button,371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963), in circumstances where the state can assert an overriding interest in prohibiting the type of speech concerned. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). This constitutional principle is, of course, founded upon the first amendment prohibition against laws "abridging the freedom of speech" ¹ and places "the decision as to what views shall be voiced largely into the hands of each of us * * * ." Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, 293 (1971). As a consequence of the belief that the individual should be the judge of the ideas he wishes to communicate, there will arise the inevitable instances when this basic freedom will be employed to fill the air with verbal cacophony rather than the strains of reasoned discourse. However, to guard against the imposition of restraints on what or how a person chooses to express himself, the state cannot prohibit speech merely because the words offend, cause indignation, or anger the addressee. Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). The state must be able to assert some overriding interest in prohibiting the particular verbiage. Several types of speech which the Supreme Court has found that the state has such an interest in proscribing are: obscenity, ² libel, ³ incitement, ⁴ and fighting words. ⁵

[120 R.I. 49] The United States Supreme Court has never directly ruled upon whether profanity is a category of speech which, like the types of speech mentioned above, the state has a compelling interest to prohibit. In Chaplinsky the Court suggested that profane language might be a separate kind of unprotected speech...