Petition — Maryland v. Downs

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IN THE

Supreme Court of the United States

.

OcTOBER TERM, 1976

No. 76-11 89

STATE OF MARYLAND,

Petitioner,

Vv.

JOHN EDWARD DOWNS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

FRANCIS B. BURCH,

Attorney General

of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General,

Chief, Criminal Division,

BERNARD A. RAuM,

Assistant Attorney General,

GILBERT H. ROBINETTE,

Assistant Attorney General,

For Petitioner.

The Daily Record Co., Baltimore, Md. 21202 Ee

TABLE OF CONTENTS

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GROUNDS FOR ISSURANCE OF WRIT. ............0.-0e0000+ 2

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STATUTORY AND CONSTITUTIONAL PROVISIONS

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SOPADUREOET GP FAGTD ceccocececcecccccsccscceccoccscccesssescnesese 3

ARGUMENT:

The Court of Appeals of Maryland did

err in holding that the Respondent’s

comment “the fucking niggers in this

county are no better than god damned

policemen” spoken in a loud voice or

“velled” in a restaurant filled with a

racially mixed crowd were not the kind

of personally abusive epithets which

fall outside of the protection of the First

Amendment under the rubric of fighting

words and, therefore, were protected

IIE sccctontaninnbenisbemiensmaiiaiesianmeniininnmees 8

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DR re erro SE RET EAE EN nee la-17a

TABLE OF CITATIONS

Cases

Brown v. Oklahoma, 408 U.S. 714, 92 S. Ct. 2507

SETI cisesiusesiicsisiiiehiniaanenniaetieiiinsia dle eetaiiall 9,11,13, 14

Chaplinsky v. New Hampshire, 350 U.S. 568, 62

as UY TIED cessniinsindrniatiaiitemaiiecccsteameniieeiaaall 9,10,13

PAGE

Dennis v. United States, 341 U.S. 494 71 S. Ct.

ST elapedhbiceelalaiiateabieeiale een ae eee aa as, 14

Downs v. State, 30 Md. App. 253 (1976) ............. 2,10

Downs v. State, 278 Md. 610 (1976) ........c....c eee 2,10

Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103

TE PRINS JF ane SPR eR RE 9,10,13

Karlan v. Cincinnati, 416 U.S. 924, 94S. Ct. 1922

__ERECIREEESD UNTER ie penton e Oromia DRA Oe we ODN) TOD EE OT REE DM 10

Kelly v. Ohio, 416 U.S. 923, 94 S. Ct. 1922 (1974) )

Lewis v. New Orleans, 415 U.S. 130, 94 S. Ct. 790

RRS TORS ee he Tee ae oe OTT 9,10,13

Lucas v. Arkansas, 416 U.S. 919, 94 S. Ct. 1917

ia )

Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215

RDS rennin Ree ne LRN Te Se oe oe 14

Reese v. State, 17 Md. App. 73 (1973) .............. 10

Rosenfeld v. New Jersey, 408 U.S. 901, 92 S. Ct.

FERRE ERTS RAT So Or ote 9,11,13

Schneck v. United States, 249 U.S. 47, 39 S. Ct.

RG ER TRS Na a ORE eC 14

Smayda v. United States, 352 F.2d 251 (9th Cir.,

1974) cert. denied, 382 U.S. 981, 86 S. Ct. 555

RTA ca Re aR nro rn Ne oC 14

Texas v. White, 423 U.S. 67, 96 S. Ct. 304 (1975) 14

Statutory and Constitutional

Provisions Applicable

First Amendment, Constitution of the United

FNRI LENS Rate MArT Fo Dene RDO aE hs SOOO 2

Maryland Code, Article 27, Section 123(c) (1976

Replacement Volume) .0.............ccccccccccceecceeeeeceee 3,10

Title 28, Section 1257(3), U.S.C. coccccceccccccccssccceseeee 2

ill

Rules

PAGE

Rule 19(1)(a), Supreme Court Rules. ..........-.:.+++ 2

Rule 828(g), Maryland Rules of Procedure ......... 3

Miscellaneous

Webster’s New Universal Dictionary, Un-

abridged (1976) ......ssssssssssseseeeeseensseseneneeansensnens 11

CONTENTS OF APPENDIX

Opinion, Downs v. State, 30 Md. App. 253 (1976)

Court of Special Appeals of Maryland ........ la-9a

Opinion, Downs uv. State, 278 Md. 610 (1976),

Court of Appeals of Maryland ...........-:::+++ 10a-17a

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No.

STATE OF MARYLAND,

Petitioner,

Vv.

JOHN EDWARD DOWNS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

STATEMENT OF THE CASE

The Respondent, John Edward Downs, was convicted

by a jury in the Circuit Court for St. Mary’s County,

Maryland, of disorderly conduct, resisting arrest and

assault and battery. As a result of these convictions, the

Respondent was sentenced on March 26, 1975 to a term

of 60 days in the St. Mary’s County Jail and two

concurrent three year terms under the jurisdiction of the

Division of Correction. The sentences were altered by a

sentence review panel and the Respondent was resen-

tenced to 60 days, three years and three years respec-

tively under the jurisdiction of the Division of Correc-

tion. The sentences were made concurrent, were

suspended, and the Respondent was placed on proba-

tion for an indeterminate period. All convictions were

affirmed by the Court of Special Appeals of Maryland

2

in an opinion filed on February 3, 1976. On writ of

certiorari the Court of Appeals of Maryland reversed

the Respondent’s conviction on November 30, 1976. It is

this judgment of the Court of Appeals of Maryland

upon which review is sought by this Petition for Writ of

Certiorari.

OPINIONS BELOW

Downs v. State, 30 Md. App. 253 (1976), Court of

Special Appeals of Maryland; Downs v. State, 278 Md.

610 (1976), Court of Appeals of Maryland.

GROUNDS FOR ISSUANCE OF WRIT

The writ of certiorari in the instant case is sought

pursuant to the provisions of Title 28, Section 1257(3)

and the provisions of Rule 19(1)(a), Supreme Court

Rules, on the grounds that the Court of Appeals of

Maryland has decided a federal question under the

United States Constitution in a manner not in accord

with the applicable decisions of this Court. _

QUESTIONS PRESENTED

Did the Court of Appeals of Maryland err in holding

that the Respondent’s comment “the fucking niggers in

this county are no better than god damned policemen”

spoken in a loud voice or “yelled” in a restaurant filled

with a racially mixed crowd were not the kind of

personally abusive epithets which fall outside of the

protection of the rirst Amendment under the rubric of

fighting words and, therefore, were protected speech?

STATUTORY AND CONSTITUTIONAL

PROVISIONS APPLICABLE

Constitution of the United States, Amendment One:

“Congress shall make no law respecting the

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

3

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the govern-

ment for a redress of grievances.”

Maryland Code, Article 27, Section 123(c) (1976 Replace-

ment Volume):

“No person shall act in a disorderly manner to

the disturbance of the public peace, upon any

public street, highway, alley, park or parking lot, or

in any vehicle that is in or upon any street,

highway, alley, park or parking lot, in any city,

town or county in this state, or at any place of

public worship, or public resort or amusement in

any city, town or county of this state, or in any

store during business hours, or in any elevator,

lobby or corridor of any office building or apart-

ment house having more than three separate

dwelling units in any city, town or county of this

state.”

STATEMENT OF FACTS

In lieu of a record in the Court of Appeals of

Maryland the parties agreed to submit the case to that

tribunal upon a statement of facts pursuant to the

provisions of Rule 828(g) of the Maryland Rules of

Procedure. Accordingly that statement of facts is set out

herein as follows:

Trooper George W. Taylor of the Maryland State

Police testified that on December 8, 1974, at about 3:30

a.m. he was on duty in uniform and went to the Galley

Restaurant in Lexington Park, Maryland, to meet a

complaining witness. Upon learning that the witness

was not present, he decided to have breakfast while

waiting for the witness to appear.

According to the trooper, the restaurant was

crowded. All but three or four of the twenty stools at the

counter were occupied, as were all the tables and

booths. He estimated that there were from thirty-five to

forty persons in the restaurant and that the patrons

4

were “mostly white, I’d say approximately 90 percent.”

Trooper Taylor described the noise level in the room as

“nothing anything close to quiet; it was like a humming

like you would normally hear in a restaurant that was

pretty well packed.” He said, “all the talking blended

with the exception of Mr. Downs: which was well above

anybody’s or anyone else’s tone.”

The trooper gave the following account of the

incidents which led to Appellant’s arrest:

“I sat down at the table in the front of the Galley

and ordered, and while I was waiting for my

breakfast to arrive as well as the complainant who

I was waiting for, I noticed Mr. Downs, the

Defendant, seated there in the first booth which

was immediately adjacent to the table I was sitting

at. I heard him talking referring to police officers.

He was talking in a moderate to above normal tone

referring to ‘All the goddamn policemen in this

county are no fucking good, they’re just after me.

They always got to jump me and beat on me.’

“T let this go on for approximately two to three

minutes, not saying anything. I felt that Mr.

Downs would soon tire of making comments which

I was a police officer and it was certainly directed

towards me.”

“After two, three, four minutes of this above-

normal tone he at this point began talking louder

and it was at the point of yelling, and he not only

was at this time talking about GD policemen and

picking on him and beatin up on him, so forth, he

started talking about the fucking niggers in this

County are no better than goddamn policemen.

And at this time there happened to be two black

females in the age vicinity of eighteen to twenty

years sitting at the counter which was across from

his booth approximately four feet away. I was in

the vicinity of eight feet from Mr. Downs, and

being able to hear the loud yelling type of talking, I

was certain that...”

5

“At this point I stood up and calmly advised Mr.

Downs that he would have to refrain from the

profanity and tone down his tone of speaking, and

that it was disruptive, and at this time he stated to

me, ‘Well, who in the fuck said anything to you,

anyway. You’re not in this goddamn conversation.’

And I returned from that remark with Mr. Downs,

‘If you do not refrain from your yelling and your

profane language, I’m going to have to place you

under arrest.’

“He said, ‘You ain’t bad enough to place me

under arrest.’ So, I walked around to his booth. I

saw the crutches! leaning up against the table. I

reached in and I grabbed hold of his right arm and

advised Mr. Downs, ‘Sir, you are under arrest for

disturbing the peace, disorderly conduct.’”

Trooper Taylor stated that when he grabbed Appel-

lant’s arm, Appellant “wrenched it” away and struck

the officer across the arm and chest. Taylor then

grabbed him with both hands, put him on the floor and,

although the Appellant was struggling and trying to

get away, managed to handcuff him.

According to Trooper Taylor, Appellant was sitting in

a booth approximately eight feet from where he was

sitting, and was facing in his direction. There was a

young woman seated on Appellant’s left and another

couple seated directly across the table from Appellant

in the booth.

Trooper Taylor stated that when he first heard

Appellant speaking, it caught his ear and caused him to

turn and look toward Appellant. He testified that he

had not seen whether the first remarks which he heard

Appellant make were spoken to Appellant’s compan-

ions in the booth or directed at him. He stated that he

felt that Appellant was directing the comments at him.

Asked whether he felt “hurt” by the remarks, Trooper

1 Appellant testified that he had recently had a cast

removed from his ankle and was using crutches.

6

Taylor replied that “I was curious enough to look in

that direction.”

Trooper Taylor was the only witness called by the

State during its case in chief. After his testimony

Appellant moved for judgment of acquittal. The motion

was denied.

Three witnesses testified for the defense. These were

an employee of the restaurant, one of Appellant’s

companions in the booth, and Appellant himself.

Mrs. Frances Tattersall was called first and was

asked:

“Q. And on the evening of the 12th of December,

1974, (sic) were you at the Galley?”

“A. I was working in the Galley at the time.”

She was working as a cook behind the counter and

during that evening and early morning many of the

patrons were using vulgar and profane language. She

stated that she did not know whether any of this

language came from Appellant. Asked what she had

heard Appellant say, she replied:

“Well, I didn’t hear too much conversation going

on with anybody in there, but I heard a loud, some

loud talking and I looked around and the officer

told Mr. Downs he was, “You are under arrest.”

And I turned back and was working at the grill

and at the refrigerator, and the next thing I noticed

about anything was that I just heard a scuffle of

noise and I turned and looked and Mr. Downs was

down between the two stools and he had gotten

hold of his hairpiece and he dropped it on the floor,

and the next thing I heard, he was, they were going

out the door, he had him handcuffed, under arrest,

and they were going out the door.”

Sarah Lucille Lynn testified that she was seated next

to Appellant in the booth on the morning of December

8, 1974. She said she heard Appellant use the profanity

described by the trooper but could not recall his exact

7

words. She said he did not direct any comments to

anyone other than those seated in the booth. She also

stated that everyone in the restaurant was speaking

loudly and that Appellant was no louder than anyone

else.

Appellant testified that he was a 32 year-old musician

and had gone to the Galley to have breakfast after

leaving work. He admitted to having a loud conversa-

tion and to using profane language but said he was

speaking only to his companions and did not direct any

remarks toward Officer Taylor or anyone else outside

his booth. He did not deny using the words “fucking

police officer” but said they were not used in reference

to Trooper Taylor. He did, however, deny using the term

“fucking niggers.” He said at that time of the morning

several others in the restaurant were also using vulgar

and profane language. In addition, Appellant admitted,

on cross-examination, to having in his possession that

morning a newspaper article which said:

“LAW AND ORDER

You can call your local cop a MOTHER (fornica-

tion expletive deleted) PIG or any other name and

there is NOT A THING he can do to you

LEGALLY, not even tell you to shut up... . The

U.S. Supreme Court has said so INDIRECTLY by

refusing to back Arkansas in a recent COP

BADMOUTH case... .”

The State called, as a rebuttal witness, Thomas

Farrell, a computer operator who was seated in one of

the booths having breakfast at the time of Appellant’s

arrest.

He described the events which he observed as follows:

“T was in the Galley eating breakfast after I got off

work, and there was quite a disturbance at the

front of the Galley. I turned around to see what

was going on and I noticed the patrolman was

standing there by the booth where the Defendant

8

was sitting. I didn’t hear any of the conversation at

all, because it was pretty noisy in there, but there

was quite a disturbance, so I turned around, saw

the officer standing there.

“Then the Officer sat down at his table and then

it seemed like five, maybe ten minutes at most later

the officer got back up and it was more distur-

bance. I saw him try to — apparently it was while

he was arresting the Defendant, and it turned out

to be quite a scuffle where it looked like the

Defendant was trying to get away, and the

patrolman put him down on the floor and put a

handcuff on him and then stood him upright.”

When asked to describe the general noise level in the

Galley at this time, he said “it gets pretty noisy in

there, generally speaking, but no more so than any

busy restaurant.” He said the noise of the disturbance

he heard was “quite a bit louder,” and that “There was

obviously one person speaking very loud. I didn’t see

who was speaking because I had my back to it.”

Appellant’s motion for judgment of acquittal was

renewed and denied at the conclusion of all the

evidence.

ARGUMENT IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

THE COURT OF APPEALS OF MARYLAND DID ERR IN

HOLDING THAT THE RESPONDENT’S COMMENT “THE FUCK-

ING NIGGERS IN THIS COUNTY ARE NO BETTER THAN GOD

DAMNED POLICEMEN” SPOKEN IN A LOUD VOICE OR

“YELLED” IN A RESTAURANT FILLED WITH A RACIALLY

MIXED CROWD WERE NOT THE KIND OF PERSONALLY ABU-

SIVE EPITHETS WHICH FALL OUTSIDE OF THE PROTECTION

OF THE FIRST AMENDMENT UNDER THE RUBRIC OF FIGHT-

ING WORDS AND, THEREFORE, WERE PROTECTED SPEECH.

-The Court of Appeals of Maryland in reversing the

Respondent’s conviction for disorderly conduct con-

cluded that a statement by the Respondent in a

crowded, racially mixed restaurant that the fucking

9

niggers in the county were no better than god damned

policemen was not the kind of personally abusive

epithet which falls outside of the protection of the First

Amendment and that, therefore, the Respondent was

engaged in a protected speech, 278 Md. 610 at 618. The |

Court concluded that the remark made by the Respond-

ent was during a conversation with friends, that there

was no direct evidence that the statement was spoken

to anyone other than the person sitting in the booth

with the Respondent, and that there was no evidence,

besides that of a State Trooper, that anyone else heard

the statement. Lastly the Court stated that even if

someone had in fact heard the statement, there was no

evidence that that person was offended by it and that

further even if someone had been offended by the

statement there was no evidence that any person was

so aroused as to respond in a violent manner. 278 Md.

at 618.

The question raised by this petition is whether or not

the Court of Appeals of Maryland erroneously ex-

panded this Court’s interpretation of protected speech

in holding that under the facts in this case the

Respondent was engaged in a protected activity.

The cases relied upon by the Court of Appeals of

Maryland in reversing the Respondent’s conviction

essentially deal with the facial invalidity of so-called

disorderly conduct statutes. See Gooding v. Wilson, 405

U.S. 518, 92 S. Ct. 1103 (1972); Rosenfeld v. New Jersey,

408 U.S. 901, 92 S. Ct. 2479 (1972); Brown v. Oklahoma,

408 U.S. 914, 92 S. Ct. 2507 (1972); Lucas v. Arkansas,

416 U.S. 919, 94 S. Ct. 1917 (1974); and Kelly v. Ohio,

416 U.S. 923, 94 S. Ct. 1922 (1974). The short answer to

the Court of Appeals of Maryland position is that its

reliance in its opinion on these decisions as a guide for

interpreting Chaplinsky v. New Hampshire, 350 U.S.

568, 62 S. Ct. 766 (1942), Lewis v. New Orleans, 415 U.S.

130, 94 S. Ct. 790 (1974), and Gooding, supra, is

10

somewhat misplaced. For example, on remand, the

Supreme Court of Arkansas in Lucas v. State upheld its

statute under the decision in Lewis v. City of New

Orleans, supra, and upheld Lucas’ conviction, 520

S.W.2d 324 (1975). This Court dismissed an appeal from

that decision on the grounds of a want of a substantial

federal question, __. U.S. ___., 96 S. Ct. 17 (1975). Ina

similar case, Karlan v. Cincinnati, 416 U.S. 924, 94 S.

Ct. 1922 (1974), the Supreme Court of Ohio specifically

reaffirmed the constitutionality of its statute under

Lewis v. New Orleans, supra, and therefore affirmed

Karling’s conviction, 314 N.E.2d 162 (1974).

In Lewis v. City of New Orleans, supra, this Court

concluded that a Louisiana statute as construed by the

Louisiana Supreme Court was overbroad and was,

therefore, in violation of the First and Fourteenth

Amendments and accordingly was facially invalid.

Even though the Louisiana Supreme Court concluded

that the statute in question prohibiting “wantonly

cursing, reviling, and using obscene or opprobrious

language”’ was narrowed to “fighting words” uttered to

specific persons at a specific time, the court nonetheless

concluded that the statute had a broader sweep than

the constitutional definition of fighting words in

Chaplinsky v. New Hampshire, supra. Thus Lewis was

specifically reversed because of the breadth of the

statute. In the instant case, however, the constitutional-

ity of the statutory provision in question, Article 27,

Section 123(c), Annotated Code of Maryland, (1976

Repl. Vol.) is not in question. In fact it is clear that the

courts of Maryland, in interpreting what shall be an act

in a disorderly manner, apply the standards of

Chaplinsky v. New Hampshire, supra, and Gooding v.

Wilson, 405 U.S. 518, 92 S. Ct. 1103 (1972). See Reese v.

State, 17 Md. App. 73 (1973); Downs v. State, 30 Md.

App. at 261, and Downs v. State, 278 Md. at pages 613

through 617.

11

Three factors should be considered as paramount in

determining the constitutional validity of the Respond-

ent’s conviction in this case: (1) the Respondent made the

statements in question in a fairly crowded restaurant

with a racially mixed patronage; (2) the language itself

was specifically a racial epithet in character; and (3) it

was obvious that at the very least the Respondent was

baiting the police officer for his reaction. The record

discloses that Maryland State Trooper Taylor was

approximately eight feet from the Appellant at the time

he spoke the epithets in a “loud yelling type of talking”

and the epithets were made in the presence of at least

two black females, aged 18 to 20 years, who were sitting

at a counter across from the Respondent’s booth,

approximately four feet away. There is no question but

that the black persons heard the racial epithet, which

was delivered after the Respondent had already stated

openly “all the god damned policemen in this county

are no fucking good, they’re just after me. They always

got to jump me and beat on me.” With regard to

whether or not the statements in the instant case are

fighting words, one thing is clear, the term “fucking

niggers” can certainly not be interpreted as meaning

anything other than a patently derisive and inflamma-

tory slur. In fact Webster’s New Universal Dictionary of

the english language, Unabridged (1976) defines

“nigger” as:

“1. A Negro.”

“2. A member of any dark skinned people. A

vulgar, offensive term of hostility and contempt, as

used by Negrophobes.”

Thus not only is the term “Nigger” vulgar but it is also

offensive and calculated to instill hostility. Compare

Mr. Justice Powell’s concurring opinion in Brown uv.

Oklahoma, supra, 92 S. Ct. at 2508. Lastly there is no

question but that the Respondent was willfully using

scurrilous language in a calculated attempt to offend

|

12

both Trooper Taylor and also the black people sitting

near him. In fact it is apparent that he was attempting

to force some type of official response from the police

officer as demonstrated by the colloquy at his table

with the Trooper and also as demonstrated by the

newspaper article found in the Respondent’s possession

at the time of his arrest. Perhaps the circumstances

surrounding this case are best summed up by the

dissenting opinion authored by Mr. Justice Powell in

Rosenfeld v. New Jersey wherein it is stated at 92 S. Ct.

2481:

“Perhaps Appellant’s language did not constitute

‘fighting words’ within the meaning of Chaplinsky.

While most of those attending the school board

meeting were undoubtedly outraged and offended,

the good taste and restraint of such an audience

may have made it unlikely that physical violence

would result. Moreover, the offensive words were

not directed at a specific individual. But the

exception to the First Amendment protection

recognized in Chaplinsky is not limited to words

whose mere utterance entails a high probability of

an outbreak of physical violence. It also extends to

the willful use of scurrilous language calculated to

offend the sensibilities of an unwilling audience.”

See also Williams v. District of Columbia, 136 U.S.

App. D.C. 56, 419 F.2d 638 (1969).

Furthermore as Chief Justice Burger stated in his

dissent to Rosenfeld v. New Jersey at 92 S. Ct. 294:

“When we undermine the general belief that the

law will give protection against fighting words and

profane and abusive language such as the utteran-

ces involved in these cases, we take steps to return

to the law of the jungle. These three cases, like

Gooding, are small but symptomatic steps. If

continued, this permissiveness will tend further to

erode public confidence in the law — that settled

but indispensible ingredient of order to liberty.

“In Rosenfeld’s case, for example, civilized

people attending such a meeting with wives and

13

children would not likely have an instantaneous,

violent response, but it does not unduly tax the

imagination to think that some justifiably out-

raged parent whose family were exposed to the foul

mouthings of the speaker would ‘meet him outside’

and either alone or with others, resort to the

nineteenth century’s vigorous modes of dealing

with such people. I cannot see these holdings as an

‘advance’ in human liberty but rather a retrogres-

sion to what men have struggled to escape for a

long time.”

Within the specific context of the instant case see

specifically the dissenting opinion of Justice Powell

joined by the Chief Justice and Mr. Justice Blackmun

in Rosenfeld v. New Jersey, 408 U.S. 901, 92 S. Ct. 2479

(1972) and the dissent of Mr. Chief Justice Burger,

joined by Mr. Justice Blackmun and Mr. Justice

Rhenquist at 408 U.S. 901, 92 S. Ct. 2483 and 408 U.S.

903, 92 S. Ct. 2484 (1972). Compare the concurring

opinion of Mr. Justice Powell in Brown v. Oklahoma,

408 U.S. 914, 92 S. Ct. 2507 (1972). Thus it is clear that

although Chaplinsky, supra, Gooding, supra, and

Lewis, supra, stand for the proposition that 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, the class of

speech in the instant case is outside that definition.

Under the facts in this case the negro patrons of that

restaurant in St. Mary’s County, Maryland were the

subjects of public obloquy. Furthermore the Respond-

ent’s commentary specificaily invited lawless conduct

on the part of the patrons if they objected to his

statements, a circumstance which the jury in this case

could have inferred was the express intent of the

Respondent. Rather than fight, the negro patrons of the

restaurant were given two other choices, being forced to

sit in silence and take the verbal assaults or get up and

leave. It is apparent that in the context delivered by no

14

stretch of the imagination were the Respondent’s

comments protected speech. The statements were

obviously not political statements announced for the

purpose of converting the listener to the views of the

speaker nor were they given under such circumstances

as where the public would be advised, or have some

advance idea, of the nature of the comments which

might be expected. (compare Justice Powell’s dissent in

Brown, supra, also Schneck v. United States, 249 U.S.

47, 39 S. Ct. 247 (1919)). As Mr. Chief Justice Vinson

stated for this Court in Dennis v. United States, 341

U.S. 494, 71 S. Ct. 857 at 866:

“Speech is not an absolute, above and beyond

control by the Legislature when its judgment,

subject to review here, is that certain kinds of

speech are so undesirable as to warrant criminal

sanction. Nothing is more certain in modern

society than the principal that there are no

absolutes, that a name, a phrase, a standard has

meaning only when associated with the considera-

tions which gave birth to the nomanclature.”

(Emphasis added).

In the instant case it is submitted that the State of

Maryland has imposed a greater restriction as a matter

of federal constitutional law than this Court’s interpre-

tations of the First Amendments require. Oregon uv.

Hass, 420 U.S. 714, 95 S. Ct. 1215 (1975); Texas v. White,

423 U.S. 67, 96 S. Ct. 304 (1975); Smayda v. United

States, 352 F.2d 251 (9th Cir., 1975) cert. denied, 382

U.S. 981, 86 S. Ct. 555 (1966). Under the circumstances

in this case, in order to arrest an individual, even upon

probable cause, a police officer in Maryland must wait

until an outbreak of violence ensues before an arrest

can be made. Compare Court of Special Appeals

opinion, 30 Md. App. at 261, 262.

15

CONCLUSION

The Petitioner respectfully submits in conclusion that

the Court of Appeals of Maryland has erroneously

overextended the protected speech doctrine embodied in

Gooding v. Wilson, supra, and Chaplinsky v. New

Hampshire, supra, to the detriment of the people of the

State of Maryland. Wherefore, the Petitioners pray that

this Honorable Court grant a writ of certiorari to the

Court of Appeals of Maryland in the premises.

Respectfully submitted,

FrRANcis B. BuRCH,

Attorney General

of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General,

Chief, Criminal Division,

BERNARD A. RaAuM,

Assistant Attorney General,

GILBERT H. ROBINETTE,

Assistant Attorney General,

For Petitioner.

I HEREBY CERTIFY that on this 28th day of Febru-

ary, 1977, a copy of the aforegoing was mailed to

Dennis M. Henderson, Assistant Public Defender, 800

Equitable Building, Baltimore, Maryland 21202, Attor-

ney for the Respondent.

BERNARD A. Raum,

Assistant Attorney General.

la

APPENDIX A

In The Court Of Special Appeals

Of Maryland

No. 524

September Term, 1975

John Edward Downs

v

State of Maryland

Gilbert, Menchine and Davidson, JJ.

(Filed February 3, 1976)

GILBERT J.:

The appellant, John Edward Downs, was convicted

by a jury in the Circuit Court for St. Mary’s County of

disorderly conduct, resisting arrest, and assault and

battery. Appellant was sentenced to terms of sixty days

in the county jail and to two concurrent three-year

sentences under the jurisdiction of the Division of

Correction. A sentence review panel, convened pursuant

to Md. Rule 762c2, altered the original sentences. The

panel resentenced appellant to sixty days, three years

and three years, respectively under the jurisdiction of

the Division of Correction. All sentences were made

concurrent and they were suspended. The appellant was

placed on probation “. . . for an indeterminate period.

99)

1 We made it clear that probation may not be for an

indefinite period of time. See Laurie v. State, No. 359 Sept.

2a

On appeal to this Court, appellant challenges the

sufficiency of the evidence as to the disorderly conduct

charge. He further complains of the trial judge’s

advisory jury instructions as they related to appellant’s

failure to obey a command of a police officer. We shall

discuss the latter contention first.

Appellant recognizes that he failed to except to the

trial judge’s instructions, and, therefore, under Md. Rule

756g he may not now raise any question of error unless

there was “plain error” in the instructions. Judge

Powers, writing for this Court in Brown v. State, 14 Md.

App. 415, 422, 287 A.2d 62, 65 (1972), cert. denied 265

Md. 736 (1972), explained “plain error.”

“_ _[A]s a general guide, we may say that under

Rule 756g we will take cognizance of and correct an

irremediable error of commission, but not an error

of omission. Of course, the error must be piain, and

material to the rights of the accused, and, even

then, the exercise of our discretion to correct it

should be limited to those cases in which correction

is necessary to serve the ends of fundamental

fairness and substantial justice.”

The trial judge had instructed the jury that:

“If you find that the Government [sic] has

proven beyond a reasonable doubt that the Defend-

ant failed to obey a policeman’s command to move

on when not to do so may have endangered the

public peace, you may find the Defendant guilty of

the misdemeanor of disorderly conduct.”

While the quoted instruction may be correct as a

general principle of law, it was erroneous under the

circumstances of this case because there was no

evidence whatsoever of the appellant’s being told to

“move on”. According to the arresting officer, Trooper

Taylor of the Maryland State Police, the charge of

disorderly conduct arose out of the appellant’s indecor-

ous remarks that “‘. . . all the goddamn policemen in

this County are no fucking good, they’re just after me,’”

Term. 1975, C.S.A., filed January 2, 1976. See also Md. Ann.

Code art. 27, §641A, wherein it is provided that probation

may be “. . . for a period longer than the sentence but not in

excess of five years.”

3a

supplemented by a further comment that “{‘].. . the

fucking niggers in this County are no better than

goddamn policemen.|’]” The trial judge’s seemingly

gratuitous charge about failing to obey a police officer’s

command to “move on” was made without benefit of

any evidence to support it. It was an error of commis-

sion, but even so we do not believe that “fundamental

fairness and substantial justice” require us to reverse

the judgment. We so believe because we fail to see how

appellant was prejudiced by the instruction. There was,

as we have said, no evidence upon which the charge

could be bottomed. The jury, having heard the testi-

mony, was aware that the police officer never testified

to ordering appellant to “move on”. Appellant’s

movements were not ever in question. The matter was

limited to appellant’s verbalizing of tasteless remarks.

Furthermore, we think that had appellant requested

that the erroneous instruction be corrected, the trial

judge would have readily done so. The belated recogni-

tion by the appellant of the superfluous instruction

*. . does not call for us to correct it now.” Brown v.

State, 14 Md. App. at 422. The standard dealing with

“plain error” is set by Rule 756g. The recent decision of

Dorsey v. State, ___. Md. ; A.2d _____ (No. 9,

September Term, 1975, filed January 9, 1976) is not

applicable thereto. ,

Appellant’s argument concerning the sufficiency of

the evidence is founded upon the First Amendment to

the Constitution as well as Art. 40 of the Maryland

Declaration of Rights. Appellant strenuously argues

that his freedom of speech has been abridged.

The evidence in this case shows that the appellant

was a patron in the Galley Restaurant in Lexington

Park, Maryland. Trooper George W. Taylor of the

Maryland State Police entered the restaurant for the

purpose of meeting a complainant as well as having

breakfast. The restaurant was crowded. The trooper

took a seat at a table approximately eight feet from

where the appellant and three other persons were

seated in a booth. The restaurant was fairly noisy.

Taylor heard appellant exclaim “. . . in a moderate to

above normal tone. . .” That, “‘. . . all the goddamn

policemen in this County are no fucking good, they’re

4a

just after me.’” Taylor said that he felt that the remark

was directed toward him, but he let the matter pass.

“After two, three, four minutes of this above-normal

tone he [appellant] began talking louder and it was at

the point of yelling, and he not only was at this time

talking about the GD policemen and picking on him

and beatin’ up on him, so forth, he started talking about

{‘}the fucking niggers in this County are no better than

goddamn policemen[’]’. Appellant acknowledged that

he made a comment about police officers which

included the profanity described by Taylor, but he

denied making the racial slur.

Taylor told the jury that approximately ten (10)

percent of the patrons were@black. He stated that two

young black women were seated “. . . at the counter

which was across from his [appellant’s] booth approxi-

mately four feet away.’ When the racial slur allegedly

was uttered by appellant, Taylor went over to the booth

in which appellant was seated and “. . . advised Mr.

Downs [appellant] that he would have to refrain from

the profanity and tone down his tone of speaking, that

it was disruptive. . . .” Appellant purportedly replied,

“*Well, who in the fuck said anything to you, anyway?

You’re not in this goddamn conversation.’” Taylor

warned that if appellant did not “‘. . . refrain from. . .

yelling and ... [using] profane language ...’” he

would be placed under arrest. Appellant informed the

trooper that, “‘You ain’t bad enough to place me under

arrest.’” Appellant was wrong. He was placed under

arrest by the trooper. When the trooper grabbed

appellant by the arm the appellant, according to the

trooper, “. .. broke loose ... and struck ... [the

trooper] across the arm and left part of. . . [his] chest.”

A struggle ensued with the trooper eventually prevail-

ing.

We note that at the time of arrest and at the time of

trial appellant was carrying what he apparently

believed to be a “license for police baiting.’’ Appellant,

at the trial, produced a page from an unidentified

publication in which the following was reported:

“LAW AND ORDER

You can call your local cop a MOTHER (fornica-

tion expletive deleted) PIG or any other name and

5a

there is NOT A THING he can do to you

LEGALLY, not even tell you to shut up... . The

U.S. Supreme Court he said so INDIRECTLY by

refusing to back Arkansas in a recent COP

BADMOUTH case... .”

Perhaps appellant would have exercised more discre-

tion had he been mindful of an old folk saying that, “It

ain’t the things you don’t know what gets you into

trouble; it’s the things you know for sure what ain’t so.”

Best Quotations for All Occasions 126 (L. Henry 1948).

Appellant was tried in the circuit court on a

Statement of Charges,? after praying, at the District

Court, a jury trial.

Md. Ann. Code art. 27, §123(c) provides:

“No person shall act in a disorderly manner to the

disturbance of the public peace, upon any public

street, highway,. . . place of public worship, . . . or

amusement in any city, town or county of this

State or in any store during business hours... .”*

Appellant asserts that in order to be punishable, the

words that he used in his conversation with the two

women and a man that were seated in the booth with

him, must be either “obscene” or “fighting words.”

Reese v. State, 17 Md. App. 73, 299 A.2d 848 (1973).

There was within this record no evidence that the

objectionable language was erotic or produced “psychic

stimulation.” Reese, 17 Md. App. at 80-81, citing Cohen

v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d

284 (1971).4 To be obscene in the Constitutional sense,

the words employed must conjure up in the mind of

those confronted with the words of the expression some

2 Md. Rule 725

8 The statute provides penalties of a fine of not more than

og de | confinement in jail for not more than sixty (60) days

or .

4 Cohen was another five to four decision. The late Mr.

Justice Harlan authored the majority opinion and was joined

therein by Justices Douglas, Brennan, Stewart, and Mar-

shall. Mr. Justice Blackmun dissented; the Chief Justice and

the late Mr. Justice Black joined the dissent. Mr. Justice

White joined the dissent in part. Two of the majority and one

of the minority are no longer on the Court.

6a

erotic psychic stimulation. Reese v. State supra; Matter

of Nawrocki, 15 Md. App. 252, 260, 289 A.2d 846, 851

(1972). See also Cohen v. California, supra. Conse-

quently, we must determine whether the epithets hurled

by appellant fall within the definition of “fighting

words.” If they do not, then appellant has not violated

the provisions of the Maryland “Disorderly Conduct”

statute. Reese v. State, supra.

Mr. Justice Murphy, writing for a unanimous Court

in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.

Ct. 766, 86 L. Ed. 1031 (1942) defined “fighting words”

as “. .. those which by their very utterance inflict

injury or tend to incite an immediate breach of the

peace.” 315 U.S. at 572. We infer that by the use of the

phrase “inflict injury” the Court was speaking of injury

to the psyche, the ego, the id, the emotions. The Court,

in Chaplinsky, implicitly branded as incorrect the old

English cliche, “That sticks and stones will break my

bones but words can never harm me.”

The First Amendment proviso relative to “freedom of

speech” was never intended by our founding fathers to

license any and all use of profane language under any

and all circumstances. “Speech is not an absolute,

above the beyond control by the legislature when its

judgment, subject to review here, is that certain kinds of

speech are so undersirable as to warrant criminal

sanction.” Dennis v. United States, 341 U.S. 494, 508, 71

S. Ct. 857, 866, 95 L. Ed. 1137, 1152 (1951) (C.J. Vinson).

Stated another way, free speech is not an absolute,

unemcumbered by any responsibility on the part of the

speaker. Mr. Justice Holmes in Schenck v. United

States, 249 U.S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470,

473 (1919) made clear that free speech carries with it

some concomitant duty, when he wrote, “The most

stringent protection of free speech would not protect a

man in falsely shouting fire in a theatre and causing a

panic. . . . The question in every case is whether the

words used are used in such circumstances and are of

such a nature as to create a clear and present danger

that they will bring about the substantive evils that. . .

[the legislature] has a right to prevent. It is a question

of proximity and degree.”

Ta

While the appellant admitted using “. . . a word from

that [the above quoted article]’, he denied that he was

referring to Trooper Taylor. We think, however, that a

rational inference may be drawn from the appellant’s

possession of the article and his acknowledgement that

he used a word therefrom in his disparaging “anti-

police” comment made in a loud voice, that appellant

was, in fact, goading the trooper.

The courts have differed as to whether pejorative

remarks similar to those voiced by appellant constitute

“fighting words”,®° but we need not and do not decide in

this case that question because the trooper’s testimony

that the disdainful comment “‘. . . the goddamn police

in this County are no fucking good ...” merely

“caused” the officer “. . . to turn and look towards him

{appellant].” Patently, Trooper Taylor was not aroused

by the derisive epithet and, apparently, having been

trained to resist provocation, he elected not to respond

to the appellant’s self-proclaimed ignorance.

We turn now to a discussion of the second comment

passed by appellant, the remark which led to his being

initially admonished by the trooper and within seconds

thereafter arrested for disorderly conduct.

It has often been said that, “‘A little knowledge is a

dangerous thing.” Appellant has unwittingly proven, in

this case, the wisdom of that maxim. The Supreme

Court case to which the above quoted article alludes is

not named or cited in the article nor has either the

appellant or the State referred to it in their respective

briefs. Our research, however, leads us to believe that

the case which is unidentified in the article is Lucas v. -

State, 254 Ark. 584, 494 S.W.2d 705 (1973) which the

Supreme Court, by order, without an accompanying

5 See Annot., 34 A.L.R. 566 (1925) (Opprobrious words

addressed to policeman as breach of peace). Remarks were

deemed to constitute “fighting words” or disorderly conduct

in Landry v. Daley, 288 F. Supp. 183 (N.D. Ill. 1968); Whited

v. State, 256 Ind. App. 386, 269 N.E.2d 149 (1971); City v.

Morris, 258 Minn. 467, 104 N.W.2d 902 (1960). Contra

Oratowski v. Civil Service Comm’n, 3 Ill. App. 2d 551, 123

N.E.2d 146 (1954); City v. Guidotti, 81 Ohio L. Abs. 33, 160

N.E.2d 355 (1958); Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d

264 (1965).

8a

opinion, Lucas v. Arkansas, 416 U.S. 919 (1974)§,

vacated and remanded “.. . for further consideration

in the light of Lewis v. City of New Orleans, 415 U.S.

130 (1974).”” We do not know what happened as a result

of the remand, but the Supreme Court in Lucas merely

vacated the judgment; it did not reverse it. Reliance

upon such a slender reed for a course of conduct that

appears to be calculated to bring about a confrontation

with a police officer is, at the very least, foolhardy.

In any event, neither Lucas nor Lewis laid down a

new set of guidelines nor did either differ from

Chaplinsky. Lewis held a New Orleans City ordinance

proscribing the use of “opprobrious language” as being

overly broad and outside the scope of Chaplinsy’s

definition of “fighting words.” Lucas was remanded in

order for the Arkansas court to determine whether that

State’s statutory language was without the ambit of

Lewis. Both Lucas and Lewis were concerned with

language used toward police officers. Neither addressed

itself to a situation akin to that now before us.

The question that we must answer is: Are the words

“{‘]. . . the fucking niggers in this County are no better

than goddamn _ policemen[’]’ considered “fighting

words” within the meaning of Chaplinsky? We have

previously indicated in Reese v. State, supra, that“. . .

derisive and annoying words would be ‘fighting words’

only when they have the characteristic of plainly

tending to excite the addressee to a breach of the

peace.”’ 17 Md. App. at 82. The coarse, vulgar remarks

passed by appellant in a loud, “yelling” type of voice,

under the circumstances of this case, we think, entitled

the trier of fact to infer that the strong racial slur

“inflicted injury” and “tend[ed] to incite an immediate

breach of the peace.” We do not believe that the State

must demonstrate that a riot or fight was on the verge

of occurring, and, but for the officer’s intervention,

would have happened. In our view, it is enough for the

State to show the words used were such that men of

common intelligence would understand that such words

would so arouse emotion that the average person or

® Mr. Justice Blackmun filed a vigorous dissent. He was

joined therein by the Chief Justice and Mr. Justice Rehn-

quist. The text of the dissent is reported in 416 U.S. 919-922.

Ya

persons to whom they were addressed, directly or

indirectly at the time spoken, would be stirred to the

point of violent eruption or fighting.

We hold that the expression “[‘}the fucking niggers in

this County are no better than goddamn policemen|’]’

spoken in a loud voice or “yelled” in a restaurant filled

with a racially mixed crowd were “fighting words”

falling within the definition of that term, as it is used in

Chaplinsky. We observe no error on the part of Judge

Mattingly in refusing to grant a judgment of acquittal

at the close of the evidence inasmuch as there was

sufficient evidence of a violation of the Disorderly

Conduct statute to take the matter to the jury.

Appellant does not assert any contention that the

evidence was legally insufficient to sustain the assault

and resisting arrest convictions. He is seemingly

content to ground his attack on the circuit court’s

judgment along the Constitutional lines previously

discussed. Appellant obviously feels that if his convic-

tion for disorderly conduct fell, the arrest would of

necessity be invalid and his subsequent conduct would

be lawful. Midgett v. State, 216 Md. 26, 139 A.2d 209

(1958). Appellant, however, has not prevailed. The

arrest and conviction for disorderly conduct are proper,

and, hence, the assault and resisting arrest convictions,

it follows, will be affirmed.

Convictions affirmed. Sentences vacated and case

remanded for the imposition of proper sentences.

10a

APPENDIX B

In The Court of Appeals of Maryland

No. 27

September Term, 1976

John Edward Downs

VU.

State of Maryland

Murphy, C.J., Singley, Smith, Digges, Levine and

Eldridge, Jd.

(Filed November 30, 1976)

Murpny, Cw.

We granted certiorari to consider whether, in the

circumstances of this case, certain vulgar language

constituted “fighting” words within the sense contem-

plated by Chaplinsky v. New Hampshire, 315 U.S. 568,

62 S. Ct. 766, 86 L. Ed. 1031 (1942), and its progeny, and

were therefore outside of the protection of the First

Amendment.

Appellant Downs was conversing with three friends

while eating an early morning breakfast in a Lexington

Park restaurant. In the course of the conversation

Downs said in a loud voice, “All the goddamn

policemen in this County are no fucking good, they’re

just after me.” A few minutes later he loudly said,

“(Thhe fucking niggers in this County are no better than

goddamn policemen.” A uniformed State Trooper

lla

(Trooper Taylor) sitting at a table about eight feet away

from the booth in which Downs and his friends were

seated overheard these remarks.

The trooper went over to Downs’ booth and told him

that his talk was disruptive and that he would be

placed under arrest if he did not refrain from using such

profane language. Downs replied, “You ain’t bad

enough to place me under arrest,” whereupon the

trooper grabbed him and informed him that he was

under arrest for disorderly conduct. A scuffle ensued,

but Taylor finally managed to handcuff Downs.

Downs was charged with disorderly conduct in

violation of Maryland Code (1957, 1976 Repl. Vol.) Art.

27, § 123(c),' resisting arrest, and assault and battery.

At his trial before a jury in the Circuit Court for St.

Mary’s County, it was established that the restaurant

was crowded, busy, and noisy. All but three or four of

the 20 stools at the counter were occupied, as weil as all

the tables and booths. Approximately 35 to 45 persons

were in the restaurant; three or four were black. Two

black women were sitting at the counter about four feet

from the booth in which Downs and his friends were

sitting. Downs had a newspaper article in his posses-

sion; it said:

“You can call your local cop a MOTHER

(fornication expletive deleted) PIG or any other

name ar 7 there is NOT A THING he can do to you

LEGALLY, not even tell you to shut up... . The

U.S. Supreme Court has said so INDIRECTLY by

refusing to back Arkansas in a recent COP

BADMOUTH case... .”

Trooper Taylor testified that he could hear Downs’

remarks as distinct from the general noise level of the

restaurant. He was not personally aroused by the

reference to police officers but was concerned only

about the provocativeness of the racial remarks in the

racially mixed crowd. Two of Downs’ friends who were

' Section 123(c) provides, in pertinent part:

“(c) No person shall act in a disorderly manner to the

disturbance of the public peace. . . at any place of...

public resort or amusement... or in any store during

ne hours .. . in any city, town or county of this

tate.”

12a

seated with him during the incident testified; both said

that the remarks were not directed to anyone in

particular but were merely part of the general conversa-

tion between Downs and themselves. One of the cooks

and a patron of the restaurant testified; neither could

distinguish Downs’ remarks from the general din.

Downs himself said that his remarks were not directed

- to anyone in particular.

The jury found Downs guilty on all three charges. His

original sentence of sixty days on the disorderly

conduct charge and concurrent three-year sentences on

the resisting arrest and assault and battery charges

were modified by a sentence review panel to suspended

sentences and indeterminate probation. The Court of

Special Appeals affirmed the convictions but vacated

the indeterminate probation because it was not in

accord with Code, Art. 27, §641A. Downs v. State, 30

Md. App. 253, 351 A.2d 166 (1976).

The Court of Special Appeals did not consider

whether the remarks about police officers constituted

“fighting” words because the State Trooper was not

offended or angered by them. It considered the remark

about blacks and found that “the strong racial slur”

amounted to “fighting” words because the trier of fact

could have inferred from the volume of Downs’ voice

and from the racial composition of the crowd that the

comment “ ‘inflicted injury’” and “ ‘tend[ed] to incite an

immediate breach of the peace.’” 30 Md. App. at 261,

351 A.2d at 171. The court found it unnecessary for the

State to prove that a fight or a riot was imminent. All

that it need show was that “the average person or

persons to whom [the words] were addressed, directly or

indirectly at the time spoken, would be stirred to the

point of violent eruption or fighting.” Jd. at 262, 351

A.2d at 171.

The doctrine of “fighting” words was originated by

the Supreme Court in 1ly42 in Chaplinsky v. New

Hampshire, supra. Chaplinsky was distributing reli-

gious literature, and the City Marshall had received

complaints about it. After being twice warned of the

complaints by the marshal, Chaplinsky said to him,

“You are a God damned racketeer” and “a damned

Fascist and the whole government of Rochester are

13a

Fascists or agents of Fascists.” He was found guilty of

violating a statute which prohibited “. . . address[ing]

any offensive, derisive or annoying word to any other

person who is lawfully in any street or other public

place, [or] callf[ing] him by any offensive or derisive

Ta

In a now classic passage, the Court said:

“There are certain well-defined and narrowly

limited classes of speech, the prevention and

punishment of which has 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.” 315 U.S.

at 571-72, 62 S. Ct. at 769, 86 L. Ed. at 1035.

The Court adopted the construction of the statute by the

highest court of New Hampshire which had limited its

application to words having “‘a direct tendency to

cause acts of violence by the persons to whom,

individually, the remark is addressed.’ ”’ 315 U.S. at 573,

62.S. Ct. at 770, 86 L. Ed. at 1036, quoting State v.

Brown, 68 N.H. 200, 38 A. 731 (1895); State v.

McConnell, 70 N.H. 294, 47 A. 267 (1900). According to

the New Hampshire court, the statute prohibited “‘. . .

face-to-face words plainly likely to cause a breach of the

peace by the addressee... .” Jd. at 573, 62S. Ct. at

770, 86 L. Ed. at i036. “‘“The test is what men of

common intelligence would understand would be words

likely to cause an average addressee to fight.’” Id.

Noting that the terms “‘damned racketeer’” and

““damned Fascist’” are “likely to provoke the average

person to retaliation,” Jd. at 574, 62 S. Ct. at 770, 86 L.

Ed. at 1036, the Supreme Court affirmed Chaplinsky’s

conviction.

Although Chaplinsky makes it clear that “fighting”’

words are outside of the protection of the Constitution,

it was not made clear in that case whether the words

l4a ,

must be directly addressed to someone who is either

injured thereby or incited to a breach of the peace. The

New Hampshire construction adopted by the Supreme

Court referred, somewhat inconsistently, to the individ-

ual to whom a remark is addressed and to the average

addressee. In Chaplinsky, the words were addressed to

a particular individual, but there was no evidence that

the marshal was either injured or incited. The Supreme

Court was satisfied that an “average” person would be

provoked to retaliate.

Later cases have resolved this ambiguity and make it

clear that the only speech which can be punished, in

this context, is that which has “‘a direct tendency to

cause acts of violence by the person to whom, individu-

ally, the remark is addressed.’”’ Gooding v. Wilson, 405

U.S. 518, 524, 92 S. Ct. 1103, 1107, 31 L. Ed. 2d 408, 415

(1972), quoting Chaplinsky. In effect, “fighting” words

have been recognized as having some social value and

are punishable now not on a “per se” basis but only

when there is a likelihood of imminent disturbance.

The first limitation on the “fighting” words doctrine

occurred in Cohen v. California, 403 U.S. 15, 91 S. Ct.

1780, 29 L. Ed. 2d 284 (1970), where the Court reversed

Cohen’s conviction for “maliciously and _ willfully

disturb[ing] the peace or quiet of any neighborhood or

person... by... . offensive conduct” by wearing into

the Los Angeles Courthouse a jacket bearing the words

“Fuck the Draft.” The Court described “fighting” words

as “those personally abusive_epithets which, when

addressed to the ordinary citizen, are, as a matter of

common knowledge, inherently likely to provoke violent

reaction.” 403 U.S. at 20, 91 S. Ct. at 1785, 29 L. Ed. 2d

at 291. It assumed that the words must be “directed to

the person of the hearer.” Jd. The slogan on Cohen’s

jacket did not fall into that category because it was not

directed to anyone in particular and there was no

evidence that anyone who saw it was aroused. The

Court went on to defend Cohen’s use of the admittedly

vulgar word “fuck.” It refused to allow the State the

right “to cleanse public debate to the point where it is

grammatically palatable to the most squeamish among

us” because it concluded that “one man’s vulgarity is

another’s lyric.” 403 U.S. at 25, 91 S. Ct. at 1788, 29 L.

15a

Ed. 2d at 294. By these words, the Supreme Court has

made it difficult to find any curse words inherently

provocative.

The second limitation occurred two years later in

Gooding v. Wilson, supra. During an anti-war protest,

Wilson said to police officers attempting to move him

from the door of a military building, “White son of a

bitch, I'll kill you.” You son of a bitch, I'll choke you to

death.” “You son of a bitch, if you ever put your hands

on me again, I'll cut you all to pieces.” He was

convicted under a Georgia statute which provided:

“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.” Because

the Georgia appellate courts had not limited the

application of the statute to words that “have a direct

tendency to cause acts of violence by the person to

whom, individually, the remark is addressed,” 405 U.S.

at 524, 92 S. Ct. at 1103, 31 L. Ed. 2d at 408, the

Supreme Court found the statute unconstitutional on its

face. The Chaplinsky element of merely “inflicting

injury” was not mentioned. The new test appears to

require the likelihood that “. . . the person addressed

would make an immediate violent response.” Id. at 528,

92 S. Ct. at 1109, 31 L. Ed. 2d at 417. Thus, while

affirming the proposition that “fighting” words are

punishable under a narrowly drawn statute, the Court

so limited the application of the original doctrine that

Mr. Justice Blackmun, in dissent, said that the Court

“is merely paying lip service to Chaplinsky.” Id. at 537,

92 S. Ct. at 1113, 31 L. Ed. 2d at 422.

The Court has dealt in a summary fashion with

“fighting” words cases arising since Gooding. In

Rosenfeld v. New Jersey, 408 U.S. 901, 92 S. Ct. 2479, 33

L. Ed. 2d 321 (1972) (mem.), it vacated and remanded

without opinion in light of Cohen and Gooding a

conviction for disorderly conduct under a statute

prohibiting “loud and offensive or profane or indecent

language in any... public place. . . .” The defendant

had used the term “mother fucker” several times at a

public school board meeting. Mr. Justice Powell, in

dissent, recognized that the defendant’s words were not

l6a

directed to a specific individual and that physical

violence on the part of the audience was unlikely. His

argument that the words could have offended the

sensibility of the audience was unheeded by the

majority. In Brown v. Oklahoma, 408 U.S. 914, 92S. Ct.

2507, 33 L. Ed. 2d 326 (1972) (mem.), the Supreme Court

vacated and remanded in light of Cohen and Gooding a

conviction under a statute prohibiting obscene or

lascivious language in a public place or in the presence

of females. During a meeting at which no police officers

were present, Brown had referred to police officers in

general and to one in particular as “mother fucking

Fascist pigs.” In Lewis v. City of New Orleans, 408 U.S.

913, 92 S. Ct. 2499, 33 L. Ed. 2d 321 (1972) (mem.), the

Court vacated and remanded in light of Gooding a

conviction under a statute prohibiting cursing, reviling,

or using obscene or opprobrious language to a police

officer while in the performance of his duties. Lewis had

called the police officers “God damned mother fuckers.”

Mr. Justice Powell, concurring, would have considered

the words to be “fighting” words had they been

addressed face to face in a hostile manner to someone

other than a police officer, trained to exercise restraint.

Upon remand to the Louisiana Supreme Court, Mrs.

Lewis’ conviction was affirmed. 263 La. 809, 269 So. 2d

450 (1972). The United States Supreme Court, finding

the statute facially invalid, reversed and remanded. 415

U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974). Four

more cases followed in quick succession, all involving

the constitutionality of statutes prohibiting loud,

profane, insulting, lewd or boisterous words. By

memorandum decisions, the Court vacated the judg-

ment in each case and remanded in light of the second

Lewis decision. Lucas v. Arkansas, 416 U.S. 919, 94 S.

Ct. 1917, 40 L. Ed. 2d 277 (1974);? Kelly v. Ohio, 416 U.S.

923, 94 S. Ct. 1922, 40 L. Ed. 2d 280 (1974); Rosen v.

California, 416 U.S. 924, 94 S. Ct. 1922, 40 L. Ed. 2d 280

2 On remand, the state court conviction was affirmed,

520 S.W.2d 224 (Ark. 1975). The Supreme Court dismissed the

appeal for want of a substantial federal question. 423 U.S.

807, 96 S. Ct. 17, 46 L. Ed. 2d 28 (1975).

17a

(1974); Karlan v. City of Cincinnati, 416 U.S. 924, 94 S.

Ct. 1922, 40 L. Ed. 2d 280 (1974).

Having traced the development of the “fighting”

words doctrine, we now apply it to the facts in this case.

We need not consider whether Downs’ first remark, “All

the goddamn policemen in this County are no fucking

good, they’re just after me,” constituted “fighting”

words because the state trooper, a possible addressee,

was not aroused by the comment. We need only

examine his second remark, “[{TJhe fucking niggers in

this County are no better than goddamn policemen.”

Since Cohen v. California, supra, apparently teaches

that the use of the adjective “fucking” is not punishable

in the absence of compelling reasons, the potentially

punishable words are “[T]he niggers in this County are

no better than goddamn policemen.” This remark was

made by Downs during a conversation with friends.

There was no direct evidence that it was spoken to

anyone other than the persons sitting in the booth with

Downs. Even if there were, no evidence was adduced

that anyone else, beside Trooper Taylor, heard this

statement. Even if someone else did, there was no

evidence that he or she was offended by it. And, even if

someone were offended by it, there was no evidence that

any person was so aroused as to respond in a violent

manner. Thus, Downs’ remarks were not the kind of

personally abusive epithets which fall outside of the

protection of the First Amendment under the rubric of

“fighting” words. He engaged in protected speech. That

his views might be offensive to someone who overheard

him does not warrant a conviction for disorderly

conduct. Bachellar v. Maryland, 397 U.S. 564, 90 S. Ct.

1312, 25 L. Ed. 2d 570 (1970). Accordingly, we hold that

the trial judge erred in not granting Downs’ motion for

judgment of acquittal on the disorderly conduct charge,

and that conviction must be reversed.

Judgment of the Court of Special Appeals affirming

the conviction for disorderly conduct reversed; case

remanded to that Court with instructions to remand it

to the Circuit Court for St. Mary’s County for a new

trial; costs to be paid by the County Commissioners of

St. Mary’s County.

* On remand, Karlan’s conviction was affirmed. 39 Ohio

St. 2d 107, 314 N.E.2d 162 (1974). The Supreme Court denied

cert., 419 U.S. 1056, 95 S. Ct. 640, 42 L. Ed 2d 654 (1974).