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LEWIS v. CITY NEW ORLEANS

decided: February 20, 1974.

LEWIS
v.
CITY OF NEW ORLEANS



APPEAL FROM THE SUPREME COURT OF LOUISIANA.

Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ., joined. Powell, J., filed an opinion concurring in the result, post, p. 134. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 136.

Author: Brennan

[ 415 U.S. Page 131]

 MR. JUSTICE BRENNAN delivered the opinion of the Court.

Upon the Louisiana Supreme Court's reconsideration of this case in light of Gooding v. Wilson, 405 U.S. 518 (1972), pursuant to our remand, 408 U.S. 913 (1972), that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M. C. S. § 49-7, 263 La. 809, 269 So. 2d 450 (1972).*fn1 We noted probable jurisdiction, 412 U.S. 926 (1973), and we reverse. We hold that § 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth

[ 415 U.S. Page 132]

     Amendments and is therefore facially invalid. Section 49-7 provides:

"It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty."

The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: "The proscriptions are narrow and specific -- wantonly cursing, reviling, and using obscene or opprobrious language." 263 La., at 827, 269 So. 2d, at 456. Nonetheless, that court took the position that, as written, "it [§ 49-7] is narrowed to 'fighting words' uttered to specific persons at a specific time . . . ." Id., at 826, 269 So. 2d, at 456. But § 49-7 plainly has a broader sweep than the constitutional definition of "fighting words" announced in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), and reaffirmed in Gooding v. Wilson, supra, at 522, namely, "those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace." That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of "the conduct of any person towards a member of the city police while in the actual performance of his duty . . . . Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed." 263 La., at 825, 269 So. 2d, at 456.*fn2

[ 415 U.S. Page 133]

     At the least, the proscription of the use of "opprobrious language," embraces words that do not "by their very utterance inflict injury or tend to incite an immediate breach of the peace." That was our conclusion as to the word "opprobrious" in the Georgia statute held unconstitutional in Gooding v. Wilson, where we found that the common dictionary definition of that term embraced words "conveying or intended to convey disgrace" and therefore that the term was not limited to words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." 405 U.S., at 525. The same conclusion is compelled as to the reach of the term in § 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define -- as limited by Chaplinsky and Gooding -- "opprobrious," or indeed any other term in § 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in Gooding v. Wilson, supra, at 520-521, in this respect:

"It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' . . . the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making

[ 415 U.S. Page 134]

     the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity' . . . . This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression."

In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Cohen v. California, 403 U.S. 15, 18-22 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949); Gooding v. Wilson, supra, at 520. Since § 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid.

The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not ...


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