Chaplinsky v. New Hampshire
- Opinion, Murphy
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.
(1) That, so construed, it is sufficiently definite and specific to comply with requirements of due process of law. P. 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. 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. 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. 574
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. [p569]
MURPHY, J., Opinion of the Court
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 [p570] 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 [p571] action.
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. [n2] There are certain well defined and narrowly limited classes of speech, the prevention [p572] and punishment of which have never been thought to raise any Constitutional problem. [n3] 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. [n4] 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. [n5]
Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
Cantwell v. Connecticut, 310 U.S. 296, 309-310.
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.
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." [n7] 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, 311; Thornhill v. Alabama,[p574] 310 U.S. 88, 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, 277. [n8]
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.
1.See also Bridges v. California, 314 U.S. 252; Cantwell v. Connecticut, 310 U.S. 296, 303; Thornhill v. Alabama, 310 U.S. 88, 95; Schneider v. State, 308 U.S. 147, 160; De Jonge v. Oregon, 299 U.S. 353, 364; Grosjean v. American Press Co., 297 U.S. 233, 243; Near v. Minnesota, 283 U.S. 697, 707; Stromberg v. California, 283 U.S. 359, 368; Whitney v. California, 274 U.S. 357, 362, 371, 373; Gitlow v. New York, 268 U.S. 652, 666.
Appellant here pitches his argument on the due process clause of the Fourteenth Amendment.
2.Schenck v. United States, 249 U.S. 47; Whitney v. California, 274 U.S. 357, 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.
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, 714-715.
4. Chafee, Free Speech in the United States (1941), 149.
5. Chafee, op. cit., 150.
7.State v. Brown, 68 N.H. 200, 38 A. 731; State v. McConnell, 70 N.H. 294, 47 A. 267.
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).
- Barbara Susan PAPISH v. The BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al.
- William F. BOLGER, et al., Appellants v. YOUNGS DRUG PRODUCTS CORP.
- BOSE CORPORATION, Petitioner v. CONSUMERS UNION OF UNITED STATES, INC.
- SECRETARY OF STATE OF MARYLAND, Petitioner v. JOSEPH H. MUNSON COMPANY, INC.
- DUN & BRADSTREET, INC., Petitioner v. GREENMOSS BUILDERS, INC.
- Robert McDONALD, Petitioner, v. David I. SMITH.
- PHILADELPHIA NEWSPAPERS, INC., et al., Appellants v. Maurice S. HEPPS et al.
- BETHEL SCHOOL DISTRICT NO. 403, et al., Petitioners v. Matthew N. FRASER, a Minor and E.L. Fraser, Guardian Ad Litem.
- CITY OF HOUSTON, TEXAS, Appellant, v. Raymond Wayne HILL.
- Walter H. RANKIN, etc., et al., Petitioners v. Ardith McPHERSON.
- HUSTLER MAGAZINE and Larry C. Flynt, Petitioners v. Jerry FALWELL.
- TEXAS, Petitioner v. Gregory Lee JOHNSON.
- UNITED STATES, Appellant, v. Shawn D. EICHMAN, David Gerald Blalock and Scott W. Tyler. UNITED STATES, Appellant, v. Mark John HAGGERTY, Carlos Garza, Jennifer Proctor Campbell and Darius Allen Strong.
- R.A.V., Petitioner, v. CITY OF ST. PAUL, MINNESOTA.
- Ferris J. ALEXANDER, Sr., Petitioner v. UNITED STATES.
- PARIS ADULT THEATRE I et al., Petitioners, v. Lewis R. SLATON, District Attorney, Atlanta Judicial Circuit, et al.
- Marvin MILLER, Appellant, v. State of CALIFORNIA.
- William M. BROADRICK et al., Appellants, v. State of OKLAHOMA et al.
- Mallie LEWIS, Appellant, v. CITY OF NEW ORLEANS.
- Edward NORWELL v. CITY OF CINCINNATI, OHIO.
- Gregory HESS v. State of INDIANA.
- Marco DeFUNIS et al., Petitioners, v. Charles ODEGAARD, President of the University of Washington.
- Stephen KARLAN v. CITY OF CINCINNATI.
- Fred Carroll LUCAS and Ronnie Ray Lucas v. State of ARKANSAS.
- Elmer GERTZ, Petitioner, v. ROBERT WELCH, INC.
- Harold Omand SPENCE, Appellant, v. STATE OF WASHINGTON.
- Jeffrey Cole BIGELOW, Appellant, v. Commonwealth of VIRGINIA.
- Richard ERZNOZNIK, etc., Appellant, v. CITY OF JACKSONVILLE.
- TIME, INC., Petitioner, v. Mary Alice FIRESTONE.
- Scott HUDGENS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD et al.
- Edward H. HYNES et al., Appellants, v. The MAYOR AND COUNCIL OF the BOROUGH OF ORADELL et al.
- VIRGINIA STATE BOARD OF PHARMACY et al., Appellants, v. VIRGINIA CITIZENS CONSUMER COUNCIL, INC., et al.
- Coleman A. YOUNG, Mayor the City of Detroit, et al., Petitioners, v. AMERICAN MINI THEATRES, INC., et al.
- NEBRASKA PRESS ASSOCIATION et al., Petitioners, v. Hugh STUART, Judge, District Court of Lincoln County, Nebraska, et al.
- Albert OHRALIK, Appellant, v. OHIO STATE BAR ASSOCIATION.
- Anthony HERBERT, Petitioner, v. Barry LANDO et al.
- Harry CONNICK, Individually and in His Capacity as District Attorney, etc., Petitioner, v. Sheila MYERS.
- TERMINIELLO v. CITY OF CHICAGO.
- FEDERAL COMMUNICATIONS COMMISSION, Petitioner, v. PACIFICA FOUNDATION.
- Paul Robert COHEN, Appellant, v. State of CALIFORNIA.
- Dennis COATES et al., Appellants, v. CITY OF CINCINNATI.
- Richard GRAYNED, Appellant, v. CITY OF ROCKFORD.
- David A. ROSENFELD v. NEW JERSEY.
- POLICE DEPARTMENT OF the CITY OF CHICAGO et al., Petitioners, v. Earl D. MOSLEY.
- Mallie LEWIS v. CITY OF NEW ORLEANS.
- JONES v. CITY OF OPELIKA. BOWDEN et al. v. CITY OF FORT SMITH, ARK. JOBIN v. STATE OF ARIZONA.
- LARGENT v. STATE OF TEXAS.
- JAMISON v. STATE OF TEXAS.
- MURDOCK v. COMMONWEALTH OF PENNSYLVANIA and seven other cases.
- Robert L. DOUGLAS, Albert R. Gundecker, Earl Kalkbrenner, et al., Petitioners, v. CITY of JEANNETTE (PENNSYLVANIA), a Municipal Corporation, et al. Robert MURDOCK, Jr., Petitioner, v. COMMONWEALTH OF PENNSYLVANIA (City of Jeannette), and seven other cases. Thelma MARTIN, Appellant, v. CITY OF STRUTHERS, OHIO.
- MARTIN v. CITY OF STRUTHERS, OHIO.
- TIMES FILM CORPORATION, Petitioner, v. CITY OF CHICAGO et al.
- NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, etc., Petitioner, v. Robert Y. BUTTON, Attorney General of Virginia, et al.
- James EDWARDS, Jr., et al., Petitioners, v. SOUTH CAROLINA.
- Theodore R. GIBSON, Petitioner, v. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE.
- The NEW YORK TIMES COMPANY, Petitioner, v. L. B. SULLIVAN. Ralph D. ABERNATHY et al., Petitioners, v. L. B. SULLIVAN.
- Harold R. BROWN, Secretary of Defense, et al., Petitioners, v. Albert Edward GLINES.
- VILLAGE OF SCHAUMBURG, Petitioner, v. CITIZENS FOR A BETTER ENVIRONMENT et al.
- Sam GINSBERG, Appellant, v. STATE OF NEW YORK.
- William EPTON v. NEW YORK (two cases).
- Henry BROWN et al., Petitioners, v. STATE OF LOUISIANA.
- A BOOK NAMED 'JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE,' et al., Appellants, v. ATTORNEY GENERAL OF the COMMONWEALTH OF MASSACHUSETTS.
- TIME, INC., Appellant, v. James J. HILL.
- CURTIS PUBLISHING CO., Petitioner, v. Wallace BUTTS. The ASSOCIATED PRESS, Petitioner, v. Edwin A. WALKER.
- James E. YOUNGDAHL, W. Chandler, Ruth Ralph, Amalgamated Clothing Workers of America, CIO, et al., Petitioners, v. RAINFAIR, Inc.
- SAIA v. PEOPLE OF STATE OF NEW YORK.
- WINTERS v. PEOPLE OF STATE OF NEW YORK.
- UNITED PUBLIC WORKERS OF AMERICA (C.I.O.) et al. v. MITCHELL et al.
- PRINCE v. COMMONWEALTH OF MASSACHUSETTS.
- Sidney STREET, Appellant, v. State of NEW YORK.
- Robert Eli STANLEY, Appellant, v. State of GEORGIA.
- Donald BACHELLAR et al., Petitioners, v. State of MARYLAND.
- Lawrence SPEISER, Appellant, v. Justin A. RANDALL, as Assessor of Contra Costa County, State of California. Daniel PRINCE, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, a Municipal Corporation.
- Samuel ROTH, Petitioner, v. UNITED STATES of America. David S. ALBERTS, Appellant, v. STATE OF CALIFORNIA.
- KOVACS v. COOPER, Judge.
- GIBONEY et al. v. EMPIRE STORAGE & ICE CO.
- Joseph CARROLL et al., Petitioners, v. PRESIDENT AND COMMISSIONERS OF PRINCESS ANNE et al.
- FEINER v. PEOPLE OF STATE OF NEW YORK.
- NIEMOTKO v. STATE OF MARYLAND. KELLEY v. STATE OF MARYLAND.
- KUNZ v. PEOPLE OF STATE OF NEW YORK.
- BREARD v. CITY OF ALEXANDRIA, LA.
- DENNIS et al. v. UNITED STATES.
- JORDAN v. DE GEORGE.
- BEAUHARNAIS v. PEOPLE of the STATE OF ILLINOIS.
- JOSEPH BURSTYN, Inc. v. WILSON et al.
- NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Petitioners v. CLAIBORNE HARDWARE COMPANY et al.
- NEW YORK, Petitioner v. Paul Ira FERBER.
- Raphael KONIGSBERG, Petitioner, v. STATE BAR OF CALIFORNIA and the Committee of Bar Examiners of the State of California.
- UNITED STATES v. BALLARD et al.
- SCREWS et al. v. UNITED STATES.
- MARSH v. STATE OF ALABAMA.
- NotFound v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
- Trayton L. LATHROP, Appellant, v. Josephine D. DONOHUE.
- John Burrell GARNER et al., Petitioners, v. STATE OF LOUISIANA. Mary BRISCOE et al., Petitioners, v. STATE OF LOUISIANA. Jannette HOSTON et al., Petitioners, v. STATE OF LOUISIANA.
- CENTRAL HUDSON GAS & ELECTRIC CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION OF NEW YORK.
- CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF NEW YORK.
- COX BROADCASTING CORPORATION et al., Appellants, v. Martin COHN.
- Millard GOODING, Warden, Appellant, v. Johnny C. WILSON.
- B. Elton COX, Appellant, v. STATE OF LOUISIANA.
- Jim GARRISON, Appellant, v. STATE OF LOUISIANA.
- B. Elton COX, Appellant, v. STATE OF LOUISIANA.