1. That part of c. 378, § 2, of the Public Law of New
Hampshire which forbids under penalty that any person shall address
"any offensive, derisive or annoying word to any other person who
is lawfully in any street or other public place," or "call him by
any offensive or derisive name," was construed by the Supreme Court
of the State, in this case and before this case arose, as limited
to the use in a public place of words directly tending to cause a
breach of the peace by provoking the person addressed to acts of
violence.
Held:
(1) That, so construed, it is sufficiently definite and specific
to comply with requirements of due process of law. P.
315 U. S.
573.
(2) That, as applied to a person who, on a public street,
addressed another as a "damned Fascist" and a "damned racketeer,"
it does not substantially or unreasonably impinge upon freedom of
speech. P.
315 U.S.
574.
(3) The refusal of the state court to admit evidence offered by
the defendant tending to prove provocation and evidence bearing on
the truth or falsity of the utterances charged is open to no
constitutional objection. P.
315
U.S. 574.
2. The Court notices judicially that the appellations "damned
racketeer" and "damned Fascist" are epithets likely to provoke the
average person to retaliation, and thereby cause a breach of the
peace. P.
315 U.S. 574
91 N.H. 310, 18 A.2d 754, affirmed.
APPEAL from a judgment affirming a conviction under a state law
denouncing the use of offensive words when addressed by one person
to another in a public place.
Page 315 U. S. 569
MR. JUSTICE MURPHY delivered the opinion of the Court.
Appellant, a member of the sect known as Jehovah's Witnesses,
was convicted in the municipal court of Rochester, New Hampshire,
for violation of Chapter 378, § 2, of the Public Laws of New
Hampshire:
"No person shall address any offensive, derisive or annoying
word to any other person who is lawfully in any street or other
public place, nor call him by any offensive or derisive name, nor
make any noise or exclamation in his presence and hearing with
intent to deride, offend or annoy him, or to prevent him from
pursuing his lawful business or occupation."
The complaint charged that appellant,
"with force and arms, in a certain public place in said city of
Rochester, to-wit, on the public sidewalk on the easterly side of
Wakefield Street, near unto the entrance of the City Hall, did
unlawfully repeat the words following, addressed to the
complainant, that is to say, 'You are a God damned racketeer' and
'a damned Fascist and the whole government of Rochester are
Fascists or agents of Fascists,' the same being offensive, derisive
and annoying words and names."
Upon appeal, there was a trial
de novo of appellant
before a jury in the Superior Court. He was found guilty, and the
judgment of conviction was affirmed by the Supreme Court of the
State. 91 N.H. 310, 18 A.2d 754.
By motions and exceptions, appellant raised the questions that
the statute was invalid under the Fourteenth Amendment of the
Constitution of the United States in that it placed an unreasonable
restraint on freedom of speech, freedom of the press, and freedom
of worship, and because it was vague and indefinite. These
contentions were overruled, and the case comes here on appeal.
There is no substantial dispute over the facts. Chaplinsky was
distributing the literature of his sect on the streets
Page 315 U. S. 570
of Rochester on a busy Saturday afternoon. Members of the local
citizenry complained to the City Marshal, Bowering, that Chaplinsky
was denouncing all religion as a "racket." Bowering told them that
Chaplinsky was lawfully engaged, and then warned Chaplinsky that
the crowd was getting restless. Some time later, a disturbance
occurred and the traffic officer on duty at the busy intersection
started with Chaplinsky for the police station, but did not inform
him that he was under arrest or that he was going to be arrested.
On the way, they encountered Marshal Bowering, who had been advised
that a riot was under way and was therefore hurrying to the scene.
Bowering repeated his earlier warning to Chaplinsky, who then
addressed to Bowering the words set forth in the complaint.
Chaplinsky's version of the affair was slightly different. He
testified that, when he met Bowering, he asked him to arrest the
ones responsible for the disturbance. In reply, Bowering cursed him
and told him to come along. Appellant admitted that he said the
words charged in the complaint, with the exception of the name of
the Deity.
Over appellant's objection, the trial court excluded, as
immaterial, testimony relating to appellant's mission "to preach
the true facts of the Bible," his treatment at the hands of the
crowd, and the alleged neglect of duty on the part of the police.
This action was approved by the court below, which held that
neither provocation nor the truth of the utterance would constitute
a defense to the charge.
It is now clear that
"Freedom of speech and freedom of the press, which are protected
by the First Amendment from infringement by Congress, are among the
fundamental personal rights and liberties which are protected by
the Fourteenth Amendment from invasion by state
Page 315 U. S. 571
action."
Lovell v. Griffin, 303 U. S. 444,
303 U. S. 450.
[
Footnote 1] Freedom of worship
is similarly sheltered.
Cantwell v. Connecticut,
310 U. S. 296,
310 U. S.
303.
Appellant assails the statute as a violation of all three
freedoms, speech, press and worship, but only an attack on the
basis of free speech is warranted. The spoken, not the written,
word is involved. And we cannot conceive that cursing a public
officer is the exercise of religion in any sense of the term. But
even if the activities of the appellant which preceded the incident
could be viewed as religious in character, and therefore entitled
to the protection of the Fourteenth Amendment, they would not cloak
him with immunity from the legal consequences for concomitant acts
committed in violation of a valid criminal statute. We turn,
therefore, to an examination of the statute itself.
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances.
[
Footnote 2] There are certain
well defined and narrowly limited classes of speech, the
prevention
Page 315 U. S. 572
and punishment of which have never been thought to raise any
Constitutional problem. [
Footnote
3] 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. [
Footnote
4] 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. [
Footnote
5]
"Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument."
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S.
309-310.
The state statute here challenged comes to us authoritatively
construed by the highest court of New Hampshire. It has two
provisions -- the first relates to words or names addressed to
another in a public place; the second refers to noises and
exclamations. The court said:
"The two provisions are distinct. One may stand separately from
the other. Assuming, without holding, that the second were
unconstitutional, the first could stand if constitutional."
We accept that construction of severability and limit our
consideration to the first provision of the statute. [
Footnote 6]
Page 315 U. S. 573
On the authority of its earlier decisions, the state court
declared that the statute's purpose was to preserve the public
peace, no words being "forbidden except such as have a direct
tendency to cause acts of violence by the persons to whom,
individually, the remark is addressed." [
Footnote 7] It was further said:
"The word 'offensive' is not to be defined in terms of what a
particular addressee thinks. . . . The test is what men of common
intelligence would understand would be words likely to cause an
average addressee to fight. . . . The English language has a number
of words and expressions which, by general consent, are 'fighting
words' when said without a disarming smile. . . . [S]uch words, as
ordinary men know, are likely to cause a fight. So are threatening,
profane or obscene revilings. Derisive and annoying words can be
taken as coming within the purview of the statute as heretofore
interpreted only when they have this characteristic of plainly
tending to excite the addressee to a breach of the peace. . . . The
statute, as construed, does no more than prohibit the face-to-face
words plainly likely to cause a breach of the peace by the
addressee, words whose speaking constitutes a breach of the peace
by the speaker -- including 'classical fighting words,' words in
current use less 'classical' but equally likely to cause violence,
and other disorderly words, including profanity, obscenity and
threats."
We are unable to say that the limited scope of the statute as
thus construed contravenes the Constitutional right of free
expression. It is a statute narrowly drawn and limited to define
and punish specific conduct lying within the domain of state power,
the use in a public place of words likely to cause a breach of the
peace.
Cf. Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 311;
Thornhill v.
Alabama,
Page 315 U. S. 574
310 U. S. 88,
310 U. S. 105.
This conclusion necessarily disposes of appellant's contention that
the statute is so vague and indefinite as to render a conviction
thereunder a violation of due process. A statute punishing verbal
acts, carefully drawn so as not unduly to impair liberty of
expression, is not too vague for a criminal law.
Cf. Fox v.
Washington 236 U.S.
273,
236 U. S. 277.
[
Footnote 8]
Nor can we say that the application of the statute to the facts
disclosed by the record substantially or unreasonably impinges upon
the privilege of free speech. Argument is unnecessary to
demonstrate that the appellations "damned racketeer" and "damned
Fascist" are epithets likely to provoke the average person to
retaliation, and thereby cause a breach of the peace.
The refusal of the state court to admit evidence of provocation
and evidence bearing on the truth or falsity of the utterances is
open to no Constitutional objection. Whether the facts sought to be
proved by such evidence constitute a defense to the charge, or may
be shown in mitigation, are questions for the state court to
determine. Our function is fulfilled by a determination that the
challenged statute, on its face and as applied, doe not contravene
the Fourteenth Amendment.
Affirmed.
[
Footnote 1]
See also Bridges v. California, 314 U.
S. 252;
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 303;
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 95;
Schneider v. State, 308 U. S. 147,
308 U. S. 160;
De Jonge v. Oregon, 299 U. S. 353,
299 U. S. 364;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S. 243;
Near v. Minnesota, 283 U. S. 697,
283 U. S. 707;
Stromberg v. California, 283 U. S. 359,
283 U. S. 368;
Whitney v. California, 274 U. S. 357,
274 U. S. 362,
274 U. S. 371,
274 U. S. 373;
Gitlow v. New York, 268 U. S. 652,
268 U. S.
666.
Appellant here pitches his argument on the due process clause of
the Fourteenth Amendment.
[
Footnote 2]
Schenck v. United States, 249 U. S.
47;
Whitney v. California, 274 U.
S. 357,
274 U. S. 373
(Brandeis, J., concurring);
Stromberg v. California,
283 U. S. 359;
Near v. Minnesota, 283 U. S. 697;
De Jonge v. Oregon, 299 U. S. 353;
Herndon v. Lowry, 301 U. S. 242;
Cantwell v. Connecticut, 310 U. S. 296.
[
Footnote 3]
The protection of the First Amendment, mirrored in the
Fourteenth, is not limited to the Blackstonian idea that freedom of
the press means only freedom from restraint prior to publication.
Near v. Minnesota, 283 U. S. 697,
283 U. S.
714-715.
[
Footnote 4]
Chafee, Free Speech in the United States (1941), 149.
[
Footnote 5]
Chafee,
op. cit., 150.
[
Footnote 6]
Since the complaint charged appellant only with violating the
first provision of the statute, the problem of
Stromberg v.
California, 283 U. S. 359, is
not present.
[
Footnote 7]
State v. Brown, 68 N.H. 200, 38 A. 731;
State v.
McConnell, 70 N.H. 294, 47 A. 267.
[
Footnote 8]
We do not have here the problem of
Lanzetta v. New
Jersey, 306 U. S. 451.
Even if the interpretative gloss placed on the statute by the court
below be disregarded, the statute had been previously construed as
intended to preserve the public peace by punishing conduct the
direct tendency of which was to provoke the person against whom it
was directed to acts of violence.
State v. Brown, 68 N.H.
200, 38 A. 731 (1894).
