Rosenfeld v. New Jersey/Dissent Rehnquist
[p909] MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.[1]
In Lewis, the police were engaged in making an arrest of appellant's son on grounds not challenged here. While the police were engaged in the performance of their duty, appellant intervened and ultimately addressed the police officers as "g-- d-- m---- f---- police." At that point she herself was arrested for violation of a city ordinance providing:
"It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to [p910] use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." § 49-7, Code of City of New Orleans.
In Rosenfeld, appellant appeared and spoke at a public school board meeting that was held in an auditorium and was attended by more than 150 men, women, and children of mixed ethnic and racial backgrounds. It was estimated that there were approximately 40 children and 25 women present at the meeting. During his speech, appellant used the adjective "m---- f----" on four different occasions while concluding his remarks. Testimony varied as to what particular nouns were joined with this adjective, but they were said to include teachers, the community, the school system, the school board, the country, the county, and the town.
Rosenfeld was convicted under a New Jersey statute that provides:
"Any person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited... [i]s a disorderly person." N.J. Rev. Stat. § 2A:170-29 (1) (1971).
The New Jersey Supreme Court, prior to the instant case, had placed the following limiting construction on the New Jersey statute:
"[T]he words must be spoken loudly, in a public place and must be of such a nature as to be likely to incite the hearer to an immediate breach of the peace or to be likely, in the light of the gender and age of the listener and the setting of the utterance, to affect the sensibilities of a hearer. The words [p905] must be spoken with the intent to have the above effect or with a reckless disregard of the probability of the above consequences." State v. [p911] Profaci, 56 N.J. 346, 353, 266 A. 2d 579, 583-584 (1970).
Appellant in Brown spoke to a large group of men and women gathered in the University of Tulsa chapel. During a question and answer period he referred to some policemen as "m----- f----- fascist pig cops" and to a particular Tulsa police officer as that "black m----- f----- pig...." Brown was convicted of violating an Oklahoma statute that prohibited the utterance of "any obscene or lascivious language or word in any public place, or in the presence of females..." Okla. Stat. Ann., Tit. 21, § 906 (1958).
The Court vacates and remands these cases for reconsideration in the light of Gooding v. Wilson, 405 U.S. 518 (1972), and Cohen v. California, 403 U.S. 15 (1971) (the latter decided some four months before the opinion of the New Jersey Superior Court, Appellate Division, which upheld Rosenfeld's conviction, and six months before that of the Oklahoma Court of Criminal Appeals in Brown).
Insofar as the Court's remand is based on Cohen, supra, for the reasons stated in MR. JUSTICE BLACKMUN's dissenting opinion in that case, id., at 27, I would not deny to these States the power to punish language of the sort used here by appropriate legislation. Appellant Lewis' words to the police officers were "fighting words," and those of appellants Rosenfeld and Brown were "lewd and obscene" and "profane" as those terms are used in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the leading case in the field. Delineating the type of language that the State may constitutionally punish, the Court there said:
"There are certain well-defined and narrowly limited classes of speech, the prevention of which have never been thought to raise [p912] any Constitutional problem. These include the lewd and obscene, the profane, and 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." 315 U.S., at 571-572.
The language used by these appellants therefore clearly falls within the class of punishable utterances described in Chaplinsky.
Gooding v. Wilson, supra, dealt both with the type of speech that the States could constitutionally punish, and the doctrine of First Amendment overbreadth. With respect to the latter, the Court said:
"The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.' Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to such a class, however, because 'the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,' Speiser v. Randall, 357 U.S. 513, 525 (1958), '[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,' [p913] Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression." Id., at 521-522.
Unless we are to distort the doctrine of overbreadth into a verbal game of logic-chopping and sentence-parsing reminiscent of common-law pleading, it cannot fairly be said here that either the New Orleans ordinance, or the New Jersey statute as construed by the highest court of that State, could reasonably be thought "unduly to infringe the protected freedom," Cantwell v. Connecticut, 310 U.S., at 304.
I would dismiss these appeals for lack of a substantial federal question.