Conchito v. City of Tulsa

BUSSEY, Judge

(specially concurring) :

Since we are bound by the majority opinions of the members of the Supreme Court of the United States, I must, reluctantly, concur in the results reached by my colleague, Judge Brett. I believe, however, the true construction of the First Amendment right’s scope, breadth, and limitations, are best analyzed in the dissenting opinion of Justice Blackmun, concurred in by Chief Justice Burger and Justice Rehnquist in *1390 Lewis v. City of New Orleans, supra. The Dissent, in its entirety, reads as follows:

“Mr. Justice Holmes aptly observed:

‘All rights tend to declare themselves absolute to their logical extreme.’ Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 , 28 S.Ct. 529 , 52 L.Ed. 828 (1908).

“The extremes to which we allow ourselves to be manipulated by theory extended to the end of logic is exemplified by the Court’s opinion in this case and in its blood brother of two years ago, Gooding v. Wilson, 405 U.S. 518 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972). The ‘overbreadth’ and ‘vagueness’ doctrines, as they are now being applied by the Court, quietly and steadily have worked their way into First Amendment parlance much as substantive due process did for the ‘old Court’ of the 20’s and 30’s. These doctrines are being invoked indiscriminately without regard to the nature of the speech in question, the possible effect the statute or ordinance has upon such speech, the importance of the speech in relation to the exposition of ideas, or the purported or asserted community interest in preventing that speech. And it is no happenstance that in each case the facts are relegated to footnote status, conveniently distant and in a less disturbing focus. This is the compulsion of a doctrine that reduces our function to parsing words in the context of imaginary events. The result is that we are not merely applying constitutional limitations, as was intended by the Framers, and, indeed, as the history of our constitutional adjudication indicates, but are invalidating state statutes in wholesale lots because they ‘conceivably might apply to others who might utter other words.’ Gooding v. Wilson, supra, 405 U.S., at 535 , 92 S.Ct. [1103] at 1112 (dissenting opinion).

“The application of this elliptical analysis to Gooding and to this case is instructive: In Gooding , officers were attempting to restore public access to a building when they were met by physical resistance and loud, personal abuse: ‘White son of a bitch, I’ll kill you,’ ‘You son of a bitch, I’ll choke you to death,’ and ‘You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.’ The defendant was convicted under a Georgia statute which provided that any person ‘who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.’ The Court seized upon dictionary definitions and language of Georgia court decisions from the turn of the century. It concluded that the statute swept beyond the bounds of the ‘fighting words’ limitation of Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766 , 82 L.Ed. 1031 (1942), despite the fact that the language of the statute virtually tracked the language used by the Chaplinsky Court to describe words properly subject to some regulation, and without any demonstration in reason how ‘the narrow language of the Georgia statute has any significant potential for sweeping application to suppress or deter important protected speech.’ 405 U.S., at 529 , 92 S.Ct. [1103] at 1109 (Burger, C. J., dissenting) .

“In the present case, appellant and her husband were stopped by a police officer. Appellant’s and the officer’s respective versions of the incident are conflicting, but the municipal judge credited the officer’s testimony. That finding, of course, on this record, is binding upon us. The officer testified that while he was waiting for appellant’s husband to produce his driver’s license, appellant came out of their truck ‘and started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. I said “lady, I don’t have your son and I am not talking to you. I am talking to this man and you can go sit in the truck.” She said “you god damn m. f. police — I am going *1391 to Giarrusso [the police superintendent] to see about this.” I said “lady you are going to jail — you are under arrest.” She said “you’re not taking me to jail” and she started to get back in the cab of the truck and I caught up to her while she was getting in the cab. I attempted to take her and she started fighting and swinging her arms.’ App. 8. A fight ensued and appellant was subdued with the help of another officer. Appellant was charged with resisting arrest and with wantonly reviling the police. She was convicted on both charges but appealed only the conviction of wantonly reviling the police.

“We remanded this case to the Supreme Court of' Louisiana to construe the meaning of the ordinance. [footnote omitted] 408 U.S. 913 , 92 S.Ct. 2499 , 33 L.Ed.2d 321 (1972). That court, after reviewing the applicable precedents, including Chaplinsky and Gooding , specifically construed the ordinance as ‘not offensive to protected speech; it is narrowed to “fighting words” uttered to specific persons at a specific time; it is not overbroad and is therefore not unconstitutional .... Any reasonable man knows what it is to wantonly curse or revile .... The Section definitely does not sweep within its proscriptions all forms of abusive and derogatory speech.1 263 La. 809, 826-827 , 269 So.2d 450, 456 (emphasis in original).

“Again, setting the facts to one side, this Court selectively dissects the wording of the Louisiana Supreme Court opinion, eyes the word ‘opprobrious,’ refers us to its treatment of ‘opprobrious’ in Good-ing, observes that ‘49-7 plainly has a broader sweep than the constitutional definition of “fighting words” announced in Chaplinsky,’ ante 972, and concludes that ‘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,’ Ante 94 S.Ct. at 972. And again, the ordinance is struck down with no discussion of whether it might significantly affect protected speech, and no reasons why the State’s interest in public peace and the harmonious administration of its laws should not prevail over a lone, individual claim that the statute is unconstitutional as applied to others. I cannot reconcile what the Court says with what the Louisiana Supreme Court has said. I believe my Brethren of the majority merely seek a result here, just as I was convinced they sought a result in Good-ing.

“Mr. Justice Jackson warned of the dangers of this kind of constitutional analysis :

But I did not suppose our function was that of a council of revision. The issue before us is whether what has been done has deprived this appellant of a constitutional right. It is the law as applied that we review, not the abstract, academic questions which it might raise in some more doubtful case.’ Saia v. New York, 334 U.S. 558, 571 , 68 S.Ct. 1148, 1155 , 92 L.Ed. 1574 (1948) (dissenting opinion).

“Overbreadth and vagueness in the field of speech, as the present case and Good-ing indicate, have become result-oriented rubber-stamps attuned to the easy and imagined self-assurance that ‘one man’s vulgarity is another’s lyric.’ Cohen v. California, 403 U.S. 15, 25 , 91 S.Ct. 1780, 1788 , 29 L.Ed.2d 284 (1971). The danger is apparent. Inherent in the use of these doctrines and this standard is a judicial-legislative confrontation. The more frequent our intervention, which of late has been unrestrained, the more we usurp the prerogative of democratic government. Instead of applying constitutional limitations, we do become a ‘council of revision.’ If the Court adheres to its present course, no state statute or city ordinance will be acceptable unless it parrots the wording of our opinions.

*1392 “This surely is not what the Framers intended and this is not our constitutional function. I would adhere to what Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench in Chaplinsky, supra, 315 U.S., at 571-572 , 62 S.Ct. [766] at 769:

‘Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, 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 , 60 S.Ct. 900 , 84 L.Ed. 1213 .’ (Footnotes omitted.)

“The speech uttered by Mrs. Lewis to the arresting officer ‘plainly’ was profane, ‘plainly’ it was insulting, and ‘plainly’ it was fighting. It therefore is within the reach of the ordinance, as narrowed by Louisiana’s highest court. The ordinance, moreover, poses no significant threat to protected speech. And it reflects a legitimate community interest in the harmonious administration of its laws. Police officers in this day perhaps must be thick-skinned and prepared for abuse, but a wanton, high velocity, verbal attack often is but a step away from violence or passioned reaction, no matter how self-disciplined the individuals involved. In the interest of the arrested person who could become the victim of police overbearance, and in the interest of the officer, who must anticipate violence and who, like the rest of us, is fallibly human, legislatures have enacted laws of the kind challenged in this case to serve a legitimate social purpose and to restrict only speech that is ‘of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.’ Chaplinsky, supra, [315 U.S.] at 572, 62 S.Ct. [766], at 769 [footnote omitted]. In such circumstances we should stay our hand and not yield to the absolutes of doctrine.

“I see no alternative to our affirmance, and I therefore dissent.”

In the instant case I have no hesitation construing the words uttered by defendant to the store manager as “fighting words.”

Perhaps the impact of the decisions cited by Judge Brett, and the underlying facts upon which they were based, have as yet been obscured by the scandals of Watergate, the energy crisis, and the rising rate of unemployment, but as these problems are resolved, it is my fervent hope that the news media will analyze these decisions and make known to the American public that the ultimate result of the conclusions reached by the majority of the highest Court in this land, subjects every citizen and his family to hearing the most vulgar, obscene, and abusive language and leaving them without recourse if the remarks are not specifically addressed to them. 1 It *1393 will, of course, be necessary for the City of Tulsa to specifically enact a new ordinance, complying with the decisions of the United States Supreme Court, referred to in Judge Brett’s opinion.

I do not believe that it can be established that in adopting the First Amendment that it was ever contemplated that the First Amendment right should be so broadly construed to sanction the results which must, of necessity, flow from these decisions. If the ^ unbridled exercise of this First Amendment right, limited only by the lip service which empowers the states to declare unlawful and punishable only “fighting words” addressed to a particular individual, then gutter talk, obscenities and insulting language may be uttered in all places of public resort without the exclusion of the churches, schools, state-supported institutions, the courts 2 , the Halls of Congress, and the hallowed grounds dedicated to honor those gallant men who strove to establish and maintain a republic which guaranteed not only the right of freedom of speech, but the right of the public to life, liberty and the pursuit of happiness, and insuring the states the power to enact, define, and declare certain acts and omissions as criminal offenses and prescribe punishment therefor.

Surely, in weighing the First Amendment guarantees, some consideration should be given to the other provisions of the Constitution to the end that standards of public speech and conduct should not be reduced to the lowest common denominator. Perhaps the majority of the Court participating in these opinions, who have also judicially decreed ever greater and broader protections for the criminal committing violent crimes, may find some time, in the distant future, to address themselves to the creation, or discovery, of rights for the thousands of victims of crimes perpetrated against them by these same protected criminals.

BLISS, P. J., concurs with Judge BUS-SEY’s special concurrence.

. Brown v. State, Okl.Cr., 492 P.2d 1106— modified by this Court because Brown was. an indigent, but otherwise affirmed (dealing with the same crime as in the instant case) ; and later the United States Supreme Court in Brown v. Oklahoma, 408 U.S. 914 , 92 S.Ct. *1393 2507 , 33 L.Ed.2d 326 , vacated the judgment and remanded the case to this Court for reconsideration in the light of Cohen v. California, supra, and Gooding v. Wilson, supra. [Dissenting opinion by Chief Justice Burger with whom Justice Blackmun and Justice Rehnquist joined].

. Eaton v. City of Tulsa, No. A-18,107—Affirmed by Order of this Court September 20, 1973 (dealing with Direct Contempt, when in open court, defendant used the language “chicken-shit”) ; and on March 25, 1974, the United States Supreme Court in Eaton v. City of Tulsa,-- U.S.-, 94 S.Ct. 1228 , 39 L.Ed. 2d 693 , reversed and remanded for further proceedings. [Dissenting opinion by Justice Rehnquist, with whom Chief Justice Burger and Justice Blackmun joined].