Conchito v. City of Tulsa

1974 OK CR 82, 521 P.2d 1384, 1974 Okla. Crim. App. LEXIS 341

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 18, 1974
• Docket: M-73-391
• Status: Published

Opinions

OPINION

BRETT, Judge:

The appellant, Chico Conchito, hereinafter referred to as defendant, was charged, tried and convicted in the Municipal Court, City of Tulsa, Tulsa County, in Case No. 153732 for the crime of Using Profane and Obscene Language Which Insulted and Offended a Person, in violation of Title 27, Section 122, of the Tulsa Revised Ordinances. He was sentenced to pay a fine of One Hundred Fifty ($150.00) Dollars and to serve a term of Ninety (90) days in the city jail, after a trial before the judge, said sentence being suspended. A timely appeal has been perfected to this Court.

This appeal draws into question the facial constitutionality of Section 122, of the Tulsa Revised Ordinances which provides:

“It shall be an offense for any person to use or utter any profane or obscene language or proposal when any person hearing such is insulted or offended thereby, regardless to whom such is directed.”

The defendant’s conviction thereunder resulted from his addressing to the manager of a retail store the words, “mother fucker, I know my rights,” following a heated argument over whether the store had kept its promise to properly repair a pair of trousers he had purchased and whether he was entitled either to be given a different pair of trousers or to have his money refunded. The store manager testified at trial that following defendant’s outburst, “we took the pants out and inspected them again . . . and he was still very, very hostile about it. so at that time, I was very enraged, and at that time I did call the police.” (Tr. 10) He further testified that the epithet used by the defendant had insulted and offended him.¹

The defendant challenges the city ordinance as overbroad on its face in violation of the guarantee of freedom of expression of the First Amendment.

Section 122 punishes speech alone, therefore, the defendant has standing to attack the overbreadth of that ordinance, although the words he used might have been constitutionally punishable under a narrow, precisely drawn provision because, “the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 418 (1972) quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22, 31 (1965). See also Lewis v. City of New Orleans, - U.S. -, 94 S.Ct. 970, 972, 39 L.Ed.2d 214, 219 (1974).

The overbreadth doctrine is founded upon the principle of substantive due process which forbids governments to prohibit certain freedoms guaranteed by the Constitution.² A penal provision violates this doctrine when, as drafted or construed, it is susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Lewis v. City of New Orleans, - U.S. -, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Cohen v. California, 403 U.S. 15, 18-21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). In N. A. A. C. P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), the United States Supreme Court articulated the rationale for the over-breadth doctrine in these words:

“These [First Amendment] freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”

Thus, while freedom of speech is by no means absolute, the necessity of providing such “breathing space” for First Amendment freedoms requires that only threats of a serious substantive evil be proscribed.³ Therefore, an ordinance which undertakes to punish speech may be upheld only by the showing of a compelling state interest,⁴ and the words made punishable by such a provision must come with certain specific and “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, 1035 (1942).

The ordinance before us has never been construed by this Court. It is plain that in an area in which government may regulate “only with narrow specificity” (N. A. A. C. P. v. Button, 371 U.S. at 433, 83 S.Ct. at 338, 9 L.Ed.2d at 418), this is no narrowly drawn provision. The language proscribed need not be loud or boisterous, or uttered in public. There is no requirement that it be uttered with the knowledge that someone is within hearing who might be offended. The ordinance has only two elements: first, that the language uttered be profane or obscene and, second, that someone hearing the same be insulted or offended thereby. On its face, the ordinance makes punishable the language of the “hapless stonemason who, after crushing his toe, innocently utters a few relieving expletives” ⁵ as well as the public speaker who punctuates a political speech with a vulgarity chosen because it helps to convey “otherwise inexpressable emotions.” ⁶

We have carefully examined the recent Supreme Court decisions in this area and conclude that Section 122, as drafted, is unconstitutionally broad. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Lewis v. City of New Orleans, - U.S. -, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); cf. Rosenfield v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972); Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972).

We have no doubt, in view of Cohen v. California, supra, Gooding v. Wilson, supra, and the progency of each, that the provisions of the ordinance before us make punishable constitutionally protected speech, and that a conviction under it is not sustainable unless the ordinance may be fairly construed to require something more than the utterance of a profane or obscene word which offended or insulted someone who heard it.

The question then becomes whether, by applying the rules of statutory construction in light of the presumption that its drafters intended the ordinance to be consistent with the Constitution, this ordinance can be narrowed by construction so that it is not susceptible to speech protected by the First and Fourteenth Amendments.

The City of Tulsa, in its brief, brings to the attention of this Court the provisions of 21 O.S.1971, § 1363 ⁷ and urges that the city ordinance must be construed as protecting the same compelling state interest as that statute, that is, preventing abusive language from so insulting or offending another that a breach of the peace results because the addressee retaliates with immediate physical violence. Thus, the City urges, the ordinance is designed to prohibit only “fighting words” and, hence, falls within the purview of the landmark decision of Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

As the Supreme Court reaffirmed in Gooding v. Wilson, supra, that language categorized as “fighting words” is one of the “narrowly limited classes of speech” (Chaplinsky v. New Hampshire, 315 U.S. at 571, 62 S.Ct. at 769, 86 L.Ed. at 1035) which the States have the power to punish consistently with the First and Fourteenth Amendments. In Chaplinsky, supra, the Supreme Court sustained a conviction under Chapter 378, Section 2, of the Public Laws óf New Hampshire, which provided:

“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 any offensive or 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.

The Court held that that statute did not contravene the constitutional right of free speech because the New Hampshire court had limited the scope of the statute to “fighting words,” stating:

“[N]o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.

⅜ ⅜ ⅛ ⅜ ⅜ ⅜ Derisive and annoying words can be taken as coming within the purview of the statute . . .' 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. . . . ” 91 New Hampshire 310-313, 320-321, 18 A. 2d 754, 758, 762 (1941).

In spite of the strong interest in construing the Tulsa ordinance to preserve its validity, we are unable to accept the judicial gloss suggested by the city for two reasons. First, the plain and precise language of the provision makes it impossible to narrow its overly broad scope to the prohibition of “fighting words” without exceeding the limits of the judicial reshaping of legislative enactments by substantially rewriting the ordinance. We do not confuse the power to construe with the power to legislate.

Whatever else “fighting words” might be, it is clear that they are words “directed to the person of the hearer,” Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); they are words such as “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed,” Chaplinsky v. New Hampshire, supra, 315 U.S. at 573, 62 S.Ct. at 770, 86 L.Ed. at 1036, and that one who hears such words must reasonably be able to regard them as “a direct personal insult,” Cohen v. California, supra, 403 U.S. at 20, 91 S. , 29 L.Ed.2d at 291. The Tulsa ordinance provides that it shall be an offense to use the prohibited language when any person hearing the same is insulted or offended “regardless to whom such is directed.” We are unable to strain so far as to construe those words to prohibit only language which constitutes direct personal insult and is calculated to arouse to anger the person to whom such is directed.

second reason we must reject the ■ construction urged upon us by the city is that we note that the state statute, 21 O.S. 1971, § 1363, to which the city has called our attention, bears a penalty of one month imprisonment and/or a fine of One Hundred ($100.00) Dollars. The ordinance in question bears a penalty three times as great. If the statute and the ordinance define and proscribe the same offense, as the city urges us to hold, the punishment assessed here is beyond the jurisdiction of the city court. To so construe the statute would compel a finding that the ordinance was in conflict with the state statute, for this Court has previously held that the rule which prohibits a city from any respect enlarging upon the requirements of a state statute means that the city may not impose a greater penalty for the same offense than imposed by the state statute. Johnson v. City of Tulsa, 97 Okl.Cr. 85, 258 P.2d 695, 702 (1953).

In light of the Supreme Court decisions in this area, we are compelled to conclude that the ordinance in question is susceptible to application to speech protected by the First and Fourteenth Amendments and is, therefore, unconstitutionally broad. Further, for the reasons listed above, we do not find the ordinance susceptible of a narrowing construction which would preserve its validity.

We are not unaware the particular vulgar epithet used by the defendant would be grossly offensive to the great majority of the citizens of the City of Tulsa. The city has legitimate interest in protecting its citizens from offensive or abusive language which may provoke violence, otherwise breach the peace, or create a public annoyance.⁸ Nothing in the recent cases of the Supreme Court justifies the conclusion that grossly offensive words, uttered for the sole purpose of intentionally “inflict[ing] injury” (Chaplinsky v. New Hampshire, supra, 315 U.S. at 572, 91 S.Ct. 1780) upon those who hear is constitutionally protected expression. But great care must be taken that in protecting citizens from such injury, a legislative enactment does not also “protect” them from the expression, although in offensive terms, of ideas.

In light of the result reached, we do not have occasion to decide the question of whether the words spoken by this defendant constitute “fighting words” or come within some other specific classification which may be punished with the Constitution of the United States.

For the above reasons we are of the opinion that the judgment and sentence appealed from must be, and the same is, hereby . reversed and remanded with instructions to dismiss.

BUSSEY, J., specially concurs. BLISS, P. J., joins in special concurrence of BUSSEY, J.

1 . It is perhaps of some interest that the defendant was a young black man and the complaining witness a white man. The prosecution at trial emphasized through direct examination of that witness that the store was in a black neighborhood. The complaining witness testified that he had heard the epithet “m.f.” more times in the several weeks he had worked at that store than he had previously in his entire life. He testified that each time, except one, the offending word was spoken by a black person. The complaining witness testified that when the police arrived, he told Con-chito if he would tell the police he had spoken the word complained of, he wouldn’t have him arrested. Coriehito denied then and at trial that he had used the offending term.

2 . The First Amendment doctrine of over-breadth, while not always separable from the void-for-vagueness doctrine, is nonetheless a distinct concept which flows from a separate Constitutional principle. See Note, the First Amendment Overbreadth Doctrine, 83 Harv. L.Rev. 844, 845, 871-75 (1970) ; Note, the Void-for-Aragueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 110-113 (1960).

3 . In Terminiello v. Chicago, 337 U.S. 1, 4, 09 S.Ct. 894, 896, 93 L.Ed. 1131, 1134 (1949), the court held that “public inconvenience, annoying or unrest” is not sufficient evil to justify punishing speech. “[F]reedom of speech, though not absolute, ... is never the less protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.”

4 . Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960).

5 . Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638, 644 (1969).

6 . Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 29 L.Ed.2d 284, 294 (1971).

7 . “If any person shall make use of any profane, violent, abusive or insulting language toward or about another person, in the presence or hearing, which language, in its common acceptation, is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, every such person shall be deemed guilty of a breach of the peace, and, upon conviction thereof, shall be punished by a fine in any sum not to exceed $100.00, or by imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court or jury trying the same.”

8 . Some guidance in this connection may be provided by the Model Penal Code § 250.2 (proposed official draft, 1962), when read in connection with the later decisions of the Supreme Court in this area.