# Petition — Maryland v. Downs

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 974

## Text

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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

SPATEAGIIET GU TUM CAGE cccccccccccccccccccsccssesescnscescenes 1
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GROUNDS FOR ISSURANCE OF WRIT. ............0.-0e0000+ 2
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STATUTORY AND CONSTITUTIONAL PROVISIONS
LLL TIRE TEE R ES ES ae 2

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

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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1346%3A1. Public record. Not legal advice.