The judgment is vacated and the case is remanded to the Supreme
Court of Arkansas for further consideration in light of Lewis v.
City of New Orleans,
415 U.S. 130 (1974).
(See dissenting opinion of Mr. Justice DOUGLAS in this case and
in Karlan v. City of Cincinnati, 73-537,
416 U.S. 924d 280; Kelly
v. Ohio, 72-1379, 416 U.S. 923, and Rosen v. California, 72-1738,
416 U.S. 924, 40
L. Ed. 2d 280.)
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr.
Justice REHNQUIST join, dissenting.
A North Little Rock policeman on routine patrol drove his car at
midnight through a parking lot adjacent to a motel and restaurant.
He heard loud language and thought a fight was in progress. He
rolled the window down and heard one of the appellants say, 'Well,
there goes the bid, bad mother fucking cops.' He ignored this and
slowly drove on. The language grew louder. He pulled over behind a
large parking sign. The appellants said, 'Look at the chicken shit
mother fucker hide over there behind that sign.' He drove back. The
appellants then said 'Now the sorry son-of-a-bitch is going to come
back over here.' Petitioners were arrested and convicted of
breaching the peace, in violation of Arkansas law. [
Footnote 1] The Supreme Court of Arkansas
affirmed the convictions. 254 Ark. 584, 494 S.W.2d 705 (1973).
Page 416 U.S.
919 , 920
The Court today grants certiorari, vacates the state court
judgment and remands for consideration in light of Lewis v. City of
New Orleans,
415 U.S.
130 (1974). I dissent. The Arkansas Court has already clearly
construed 42-1412 to apply only to 'fighting words,' as defined in
Chaplinsky v. New Hampshire,
315 U.S.
568, 572 (1942), in Gooding v. Wilson,
405 U.S. 518 (1972), and
in Lewis. That court, in Holmes v. State, 135 Ark. 187, 204 S.W.
846 (1918), held that the statute was narrow in its scope. 'It is
not sufficient that the language used gives offense to the person
to whom or about whom it is addressed, but it must be that which in
its ordinary acceptation is calculated to give offense and to
arouse to anger.' 135 Ark., at 189, 204 S.W., at 847 ( 1918). In
its opinion in this case, the Arkansas Court reaffirmed its prior
interpretation of the statute:
'As we construe 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 th person about or to
whom it is spoken or addressed, or to cause a breach of the peace
or an assault. We can conceive of no stronger 'fighting words' then
those employed by the appellants in this case, and there is
substantial evidence they were calculated to arouse to anger the
officer to whom they were spoken or addressed. As a matter of fact
that appellant, Fred Lucas, admits that if the mildest of the
epithets employed by him, were directed to or about him, it would
arouse him to anger.' 254 Ark. at 589-590, 494 S.W.2d at 708.
I am at a loss to understand what this Court further requires in
a narrowing interpretation under its version of the Chaplinsky
standard espoused in gooding. [
Footnote 2] Apparently,
Page 416 U.S.
919 , 921
not only must every statute regulating speech in the 50 States
parrot the wording the Court desires, but a state court must play
the role of a ventriloquist's dummy mouthing ceremonial phrases in
order to obtain the seal of this Court's approval. There can be no
question whatsoever that the Arkansas Court, in this case and in
its earlier opinion in Holmes, narrowed the statute within the
confines of the Court's Gooding doctrine,3 and there is therefore
nothing more for that court
Page 416 U.S.
919 , 922
to do. I disagree with this roughshod treatment of the opinions
of the Supreme Court of the State of Arkansas. I would affirm, and
not vacate, the court's judgment.
Footnotes
Footnote 1 Ark.Stat.Ann.
41-1412 (Repl.1964) provides:
'If any person shall make use of any
profane, violent, vulgar, abusive language toward or about any
other person in his presence or hearing, which language in its
common acception 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 assault, [he] shall be deemed guilty of a breach of the
peace . . ..'
Footnote 2 The standard of
responsibility is not left open as the Court said it was in Gooding
v. Wilson, 404 U.S. 518 ( 1972), and in Ashton v. Kentucky,
384 U.S. 195
(1966). The statute punishes language which in its ordinary
acceptation is calculated to cause a breach of the peace. The
statute on its face does not permit or require an inquiry into the
respective boiling points of the particular individuals or groups
involved in each case, but restricts the fact finder to language
that would, in its common or ordinary acceptation, be calculated to
cause a breach of the peace. In Chaplinsky, the Court accepted a
limiting construction which held that the statute was 'not to be
defined in terms of what a particular addressee thinks . . .. The
test is what men of common intelligence would understand would be
words likely to cause an average addressee to fight.' 315 U.S., at
573. In its Holmes case, the Arkansas Supreme Court pronounced
exactly the same standard: 'It is not sufficient that the language
used gives offense to the person to whom or about whom it is
addressed, but it must that which in its ordinary acceptation is
calculated to give offense and to arouse to anger.' 135 Ark., at
189, 204 S.W., at 847.
Footnote 3 My Brother
Douglas asserts that the principle enunciated in Gooding and Lewis
is not 'new.' It hardly needs stating, however, that the speech at
issue in Cantwell v. Connecticut,
310 U.S. 296 (1940), and
in Terminiello v. Chicago,
337 U.S. 1 (1949), and the
manner and place of delivery, are not at all similar to the speech
at issue in Chaplinsky, Gooding, and Lewis.
Cantwell was a case where the State sought to punish Jehovah's
Witnesses, who claimed to be ordained ministers, for a message
which attacked the Catholic religion. This the State could not do.
But we expressly noted that the case involved 'no assault or
threatening of bodily harm, no truculent bearing, no intentional
discourtesy, no personal abuse.' 310 U.S., at 310. In Terminiello
the petitioner was arrested for an address made under the auspices
of the Christian Veterans of America. Our concern there was the
protection of ideas, manifestly a part of an informed and free
public discourse, and essential to the preservation of responsive
government and peaceful, orderly change. We expressly did not reach
the question 'whether the content of petitioner's speech was
composed of derisive, fighting words which carried it outside the
scope of the constitutional guarantees.' 337 U.S., at 3.
Before we rush headlong into scrapping legislative enactments
that on their face, or as applied, appear to interfere with some
form of speech, we should pause long enough to inquire into 'the
nature of the speech in question, the probable effect the statute
or ordinance has upon such speech, the importance of the speech in
relation to the exposition of ideas, [and] the purported or
asserted community interests in preventing that speech.' Lewis v.
City of New Orleans,
415 U.S. 130, at 136-137,
94 S. Ct. 970 (dissenting opinion).
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