Rosenfeld v. New Jersey

408 U.S. 901, 92 S. Ct. 2479

• Court: Supreme Court of the United States
• Decided: June 26, 1972
• Docket: 71-1044
• Status: Published

Opinions

Appeal from Super. Ct. N. J. Judgment vacated and case remanded for reconsideration in light of Cohen v. Cali-jornia., 403 U. S. 15 (1971), and Gooding v. Wilson, 405 U. S. 518 (1972).

Me. Chief Justice Burgee,

with whom Me. Justice Blackmun and Mr. Justice Rehnquist join, dissenting.*

I am constrained to express my profound disagreement with what the Court does in these three cases on the basis of Gooding v. Wilson, 405 U. S. 518 (1972).

The important underlying aspect of these cases goes really to the function of law in preserving ordered liberty. Civilized people refrain from “taking the law into their own hands” because of a belief that the government, as their agent, will take care of the problem in an organized, orderly way with as nearly a uniform response as human skills can manage. History is replete with evidence of what happens when the law cannot or does not provide a collective response for conduct so widely regarded as impermissible and intolerable.

It is barely a century since men in parts of this country carried guns constantly because the law did not afford protection. In that setting, the words used in these cases, if directed toward such an armed civilian, could well have led to death or serious bodily injury. When we undermine the general belief that the law will give protection against fighting words and profane and abusive language such as the utterances 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 subtle but indispensable ingredient of ordered liberty.

In Rosenfeld’s case, for example, civilized people attending such a meeting with wives and children would not likely have an instantaneous, violent response, but it does not unduly tax the imagination to think that some justifiably outraged 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 19th century’s vigorous modes of dealing with such people. I cannot see these holdings as an “advance” in human liberty but rather a retrogression to what men have struggled to escape for a long time.