On petition for writ of certiorari to the Supreme Court of
Ohio.
The petition for a writ of certiorari is granted, the judgment
is vacated and the case is remanded to the Supreme Court of Ohio
for further consideration in light of Lewis v. City of New Orleans,
415 U.S. 130, 94
S. Ct. 970 (1974).
Mr. Justice DOUGLAS, dissenting.*
These cases all involve convictions under ordinances and
statutes which punish the mere utterance of words variously
described as 'abusive,' 'vulgar,' 'insulting,' 'profane,'
'indecent,' 'boisterous,' and the like. [
Footnote 1] The provisions are challenged as being
unconstitutionally vague and overbroad. The 'void for vagueness'
doctrine is, of course, a due process concept implementing
principles of fair warning and non-discriminatory enforcement.
Vague laws may trap those who desire to be law-abiding by not
providing fair notice of what is prohibited. Papachristou v. City
of Jacksonville,
405 U.S.
156, 162 (1972); United States v. Harriss,
347 U.S.
612, 617 ( 1954). They also provide opportunity for arbitrary
and discriminatory enforcement since those
Page 416 U.S.
924 , 925
who apply the laws have no clear and explicit standards to guide
them. Coates v. Cincinnati,
402 U.S.
611, 614 ( 1971); Shuttlesworth v. Birmingham,
382 U.S. 87, 90-91, 15 L.
Ed. 2d 176 (1965). Further, when a vague statute "abut[s] upon
sensitive areas of First Amendment freedoms,' it 'operates to
inhibit the exercise of [those] freedoms.' Uncertain meanings
inevitably lead citizens to 'steer far wider of the unlawful zone .
. . than if the boundaries of the forbidden areas were clearly
marked." Grayned v. City of Rockford,
408 U.S.
104, 109 (1972), quoting Baggett v. Bullitt,
377 U.S.
360, 372 (1964), and Speiser v. Randall,
357 U.S.
513, 526 (1958).
Overbreadth, on the other hand, 'offends the constitutional
principle that 'a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms." Zwickler v. Koota,
389 U.S.
241, 250 (1967), quoting NAACP v. Alabama,
377 U.S.
288, 307 (1964). A vague statute may be overbroad if its
uncertain boundaries leave open the possibility of punishment for
protected conduct and thus lead citizens to avoid such protected
activity in order to steer clear of the uncertain proscriptions.
Grayned v. City of Rockford supra, 408 U.S. at 109; Dombrowski v.
Pfister,
380 U.S.
479, 486 (1965). A statute is also overbroad, however, if, even
though it is clear and precise, it prohibits constitutionally
protected conduct. Aptheker v. Secretary of State,
378 U.S. 500, 508-509
(1964); Shelton v. Tucker,
364 U.S.
479, 488 (1960).
The statutes before us punish the mere utterance of words. They
thus attempt to regulate the delicate area of speech and they are
all overbroad since 'as authoritatively construed [they are]
susceptible of application to speech, although vulgar or offensive,
that is protected by
Page 416 U.S.
924 , 926
the First and Fourteenth Amendments.' Gooding v. Wilson,
405 U.S.
518, 520 (1972). We have consistently held that '[i]t matters
not that the words [the speaker] used might have been
ocnstitutionally prohibited under a narrowly and precisely drawn
statute.' Ibid. In the area of free speech, the value of protected
expression is deemed to justify '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.' Dombrowski v. Pfister, supra,
380 U.S. at 486. The specific conduct involved is thus not
relevant. 'It is the ordinance on its face that sets the standard
of conduct and warns against transgression. The details of the
offense could no more serve to validate this ordinance than could
the details of an offense charged under an ordinance suspending
unconditionally the right of assembly and free speech.' Coates v.
Cincinnati,supra, 402 U.S., at 616.
The landmark case in the area is Chaplinsky v. New Hampshire,
315 U.S. 568
(1942), which involved the conviction of a Jehovah's Witness for
violation of a statute prohibiting 'offensive or derisive' speech.
There the State Supreme Court had narrowed the statute by
construing it as applicable only to what were referred to as
'fighting words'2-words which 'by their very utterance inflict
injury or tend to incite an immediate breach of the peace.' Id., at
572. We held that the statute, as thus 'narrowly drawn and
limited,'3 was constitutional.
We explained the rationale of Chaplinsky's fighting words
limitation in Terminiello v. Chicago,
337 U.S. 1 (1949), which
involved a conviction unddr a Chicago disorderly conduct ordinance.
The case grew out of a
Page 416 U.S.
924 , 927
disturbance following a public address by Terminiello under the
auspices of the Christian Veterans of America. In reversing the
conviction we explained:
'The right to speak freely and to
promote diversity of ideas and programs is therefore one of the
chief distinctions that sets us apart from totalitarian
regimes.
'Accordingly a function of free
speech under our system of government is to invite dispute . . ..
Speech is often provocative and challenging . . .. That is why
freedom of speech though not absolute, Chaplinsky v. New Hampshire,
supra, is nevertheless protected against censorship or punishment,
unless shown likely to produce a clear and present danger of a
serious substantive evil that rises far above public inconvenience,
annoyance, or unrest.' Id., at 4.
The constitutional necessity of limiting this type of statute to
words which 'by their very utterance inflict injury or tend to
incite an immediate breach of the peace' was expressly reaffirmed
in Gooding v. Wilson, supra, 405 U.S., at 522 (1972), where we held
facially unconstitutional a Georgia statute which proscribed
'opprobrious or abusive' language and which had been held by state
courts to apply to utterances which were 'not 'fighting' words as
Chaplinsky defines them.' Id., at 525.
This principle was again enunciated in Lewis v. New Orleans,
415 U.S. 130
(1974), and four cases are today remanded for reconsideration in
light of Lewis. If the principle announced in Lewis were new, I
would agree with this disposition. Only state courts can construe
these statutes since 'we lack jurisdiction authoritatively to
construe state legislation.' United States v. Thirty-seven
Photographs,
402 U.S.
363, 369 (1971). Before we strike down a statute as facially
unconstitutional,
Page 416 U.S.
924 , 928
the state courts should have the opportunity to construe the
statute, if possible as within our constitutional pronouncements.
Under our constitutional scheme, federal courts were not designed
as the only protectors of federal rights. Article VI, cl. 2
expressly directs that the 'Constitution, and the laws of the
United States . . . shall be the supreme Law of the Land; and
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.'
Thus '[s]tate courts are bound equally with the federal courts' to
protect federal rights. Public Service Comm'n v. Wycoff Co.,
344 U.S.
237, 247 (1952). The decisions of this Court are to guide state
courts in the exercise of this duty.
But experience has shown that such guidance is often unheeded.
The duty of the States in this area has long been clear. After
Chaplinsky, federal intervention in Terminiello should have been
unnecessary. After Chaplinsky and Terminiello, Gooding should have
been unnecessary. Yet after them all, the State Supreme Court in
Lewis, or reconsideration in light of Gooding, again failed to
narrow the ordinance and affirmed a conviction which we found
necessary to reverse. The principle in Lewis was not new; it was
not new in Gooding, nor in Terminiello, nor even in Chaplinsky.
[
Footnote 4] State courts,
however, have consistently shown either inability or unwillingness
to apply its teaching. I thus see nothing to be gained by state
court reconsideration in light of Lewis. I would reverse these
judgments out of hand.
Page 416 U.S.
924 , 929
APPENDIX
Karlan v. City of Cincinnati, 73-537,
416
U.S. 924, involves a violation of Cincinnati Municipal Code
901-d4 which provides:
'No person shall wilfully conduct
himself or herself in a noisy, boisterous, rude, insulting or other
disorderly manner, with the intent to abuse or annoy any person or
the citizens of the city or any portion thereof . . ..'
The ordinance was held by the court below (35 Ohio St.2d 34, 298
N.E.2d 573 (1973)) to withstand facial constitutional attack on the
authority of Cincinnati v. Hoffman, 31 Ohio St.2d 163, 168, 285
N.E.2d 714, 718-719 ( 1972), which, rather than limit the ordinance
in Chaplinsky terms, gave it blanket approval: 'As reasonably
construed, the ordinance neither prohibits the lawful exercise of
any constitutional right nor escapes the understanding of any
person of 'common intelligence' who desires to obey it.' The
ordinance thus remains unconstitutionally overbroad since it
prohibits words which are merely 'rude' and has not been limited to
words which 'by their very utterance inflict injury or tend to
incite an immediate breach of the peace.'
Lucas & Lucas v. Arkansas, 73-544,
416 U.S. 919, 40 L. Ed.
2d 277, involves a violation of Ark.Stat.Ann. 41-1412 which
provides:
'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
Page 416 U.S.
924 , 930
cause a breach of the peace or assault, [he] shall be deemed
guilty of a breach of the peace . . ..'
In purporting to limit the statute, the court below held:
'As we construe Sec. 41-1412 it is
narrowed to 'fighting words' addressed to, toward, or about another
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.' 254 Ark. 584, 494 S.W.2d 705 (1973). (Emphasis
added.)
This construction leaves the statute overbroad since it permits
punishment for words which, though not likely to cause a breach of
the peace, are 'calculated' to do so. In striking down a similar
construction in Gooding v. Wilson, supra, we said: '[T]o make an
offense of conduct which is 'calculated to create disturbances of
the peace' leaves wide open the standard of responsibility.' Id.,
405 U.S., at 527, quoting Ashton v. Kentucky,
384 U.S.
195, 200 (1966). The construction here does not even require
that the words be calculated to cause a breach of the peace; it is
enough that they are calculated to arouse anger in the
addressee.
Kelly v. Ohio, 72-1379, 416 U.S. 923, involves a violation of
Codified Ordinances of the City of Kent 509.02(A) which
provides:
'[N]o person shall wilfully conduct
himself in a noisy, boisterous or other disorderly manner by either
words or acts which disturb the good order and quiet of the
Municipality.'
While finding that petitioner's language constituted 'fighting
words,' the court below did not construe the ordinance as limited
to such words. The court below
Page 416 U.S.
924 , 931
merely held that petitioner's words could constitutionally be
proscribed:
'Defendant, maintaining freedom of
speech is constitutionally protected, declares the ordinance
unconstitutional because it punishes both protected and unprotected
conduct (i. e., by words or acts). We do not find the ordinance
overbroad as to the words used herein, nor constitutionally
protected premised on the evidence before the Court, hence neither
the words nor acts herein are constitutionally protected.' Ohio Ct.
of App., No. 466 (July 31, 1972).
But, '[i]t matters not that the words [petitioner] used might
have been constitutionally prohibited under a narrowly and
precisely drawn statute,' for petitioner may attack an overly broad
statute without demonstrating that his own conduct could not be
regulated by a more precisely drawn act. Gooding v. Wilson, supra,
405 U.S., at 520-521, 92 S. Ct. 1103.
Rosen v. California, 72-1738,
416
U.S. 924, involves Calif.Penal Code 415 which provides:
'Every person who maliciously and
willfully disturbs the peace or quiet of any neighborhood or
person, by loud or unusual noise, or by tumultuous or offensive
conduct . . . or use [sic] any vulgar, profane, or indecent
language within the presence or hearing of women or children, in a
loud and boisterous manner, is guilty of a misdemeanor . .
..'
There has been no limiting construction of the 'vulgar' language
component of the provision. The jury here was instructed that:
'Vulgar means coarse, illbred, rude . . .. Profane means serving to
debase that which is holy or worthy of reverence . . ..
Page 416 U.S.
924 , 932
Indecent means . . . hardly suitable.' L.A.Super.Ct.App.Dept.,
No. CRA 11557 (January 2, 1973). It hardly needs stating that
States are not free to penalize speech merely because it is
'coarse' or 'illbred' or 'hardly suitable.'
Footnotes
[
Footnote *] This opinion applies
also to Lucas v. Arkansas, 73-544,
416 U.S. 919; Kelly v.
Ohio, 72-1379, 416 U.S. 923; and Rosen v. California, 72-1738,
416 U.S.
924.
Footnote 1 The statutes and
respective authoritative constructions are set forth in the
Appendix, post, 929.
Footnote 2 See, e. g., State
v. Brown, 68 N.H. 200, 38 A. 731.
Footnote 3 See Cantwell v.
Connecticut,
310 U.S.
296, 311 (1940).
Footnote 4 See, e. g.,
Cantwell v. Connecticut, supra. Nor were Gooding and Lewis, the
only recent instances of its reaffirmance. See, e. g., Cohen v.
California,
403 U.S.
15, 20 (1971); Bachellar v. Maryland,
397 U.S.
564, 567 ( 1970); Street v. New York,
394 U.S.
576, 592 (1969).
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