# Gooding v. Wilson/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Burger Blackmun
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code [p519] Ann. § 26-6303, which provides: "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." Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S.E. 2d 446 (1967). Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that § 26-6303 was facially unconstitutional was ripe for decision. 303 F. Supp. 952 (1969). On the merits [p520] of that question, the District Court, in disagreement with the Georgia Supreme Court, held that § 26-6303, on its face, was unconstitutionally vague and broad and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. 431 F. 2d 855 (1970). We noted probable jurisdiction of the State's appeal, 403 U.S. 930 (1971). We affirm.
Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, 403 U.S. 15, 18-22 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971). It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe [p521] speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," Dombrowski v. Pfister, 380 U.S. 479, 491 (1965), 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," id., at 486; see also Baggett v. Bullitt, 377 U.S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971); id., at 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U.S. 17, 21-22 (1960); NAACP v. Button, 371 U.S. 415, 433 (1963). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.
   "Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." Coates v. City of Cincinnati, supra, at 619-620 (opinion of WHITE, J.) (citation omitted).
The constitutional guarantees of freedom of speech forbid the States to punish the use of words or [p522] language not within "narrowly limited classes of speech." Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to such a class, however, because "the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," Speiser v. Randall, 357 U.S. 513, 525 (1958), "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom," Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, supra, at 433.
Appellant does not challenge these principles that contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words—"fighting" words—"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of 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 by any offensive or derisive name...." Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, "long [p523] before the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words:
   "[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....
   "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.... 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 N.H. 310, 313, 320-321, 18 A. 2d 754, 758, 762 (1941).
In view of that authoritative construction, this Court held: "We are unable to stay 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." 315 U.S., at 573. Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California, 403 U.S., at 20; Bachellar v. Maryland, 397 U.S. 564, 567 (1970); see Street v. New York, 394 U.S. 576, 592 (1969). We reaffirm that proposition today.
[p524] Appellant argues that the Georgia appellate courts have by construction limited the proscription of § 26-6303 to "fighting" words, as the New Hampshire Supreme Court limited the New Hampshire statute. "A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated 'fighting words.'" Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms." 303 F. Supp., at 955. The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench. Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts § 58, pp. 240-241 (2d ed., 1970). We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed § 26-6303 to be limited in application, as in Chaplinsky, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed."
[p525] The dictionary definition of "opprobrious" and "abusive" give them greater reach than "fighting" words. Webster's Third New International Dictionary (1961) defined "opprobrious" as "conveying or intended to convey disgrace," and "abusive" as including "harsh insulting language." Georgia appellate decisions have construed § 26-6303 to apply to utterances that, although within these definitions, are not "fighting" words as Chaplinsky defines them. In Lyons v. State, 94 Ga. App. 570, 95 S.E. 2d 478 (1956), a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting "Boys, this is where we are going to spend the night." "Get the G-- d--- bed rolls out... let's see how close we can come to the G-- d--- tents." Again, in Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), the Georgia Supreme Court held that a jury question was presented by the remark, "You swore a lie." Again, Jackson v. State, 14 Ga. App. 19, 80 S.E. 20 (1913), held that a jury question was presented by the words addressed to another, "God damn you, why don't you get out of the road?" Plainly, although "conveying... disgrace" or "harsh insulting language," these were not words "which by their very utterance... tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572.
Georgia appellate decisions construing the reach of "tending to cause a breach of the peace" underscore that § 26-6303 is not limited, as appellant argues, to words that "naturally tend to provoke violent resentment." Lyons v. State, supra; Fish v. State, supra; and Jackson v. State, supra. Indeed, the Georgia Court of Appeals in Elmore v. State, 15 Ga. App. 461, 83 S.E. [p526] 799 (1914), construed "tending to cause a breach of the peace" as mere
   "words of description, indicating the kind or character of opprobrious or abusive language that is penalized, and the use of language of this character is a violation of the statute, even though it be addressed to one who, on account of circumstances or by virtue of the obligations of office, can not actually then and there resent the same by a breach of the peace....
   "... Suppose that one, at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated?...
   "... [T]hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position. 15 Ga. App., at 461-463, 83 S.E., at 799-800.
[p527] Moreover, in Samuels v. State, 103 Ga. App. 66, 67, 118 S.E. 2d 231, 232 (1961), the Court of Appeals, in applying another statute, adopted from a textbook the common-law definition of "breach of the peace."
   "The term 'breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community.... By 'peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members."
This definition makes it a "breach of peace" merely to speak words offensive to some who hear them, and so sweeps too broadly. Street v. New York, 394 U.S., at 592. "[H]ow infinitely more doubtful and uncertain are the boundaries of an offense including any 'diversion tending to a breach of the peace'...." Gregory v. Chicago, 394 U.S. 111, 119 (1969) (Black, J., concurring) (emphasis supplied).
Accordingly, we agree with the District Court that our decisions in Ashton v. Kentucky, 384 U.S. 195 (1966), and Cox v. Louisiana, 379 U.S. 536 (1965), compel the conclusion that § 26-6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton we held that "to make an offense of conduct which is 'calculated to create disturbances of the peace' leaves wide open the standard of responsibility." 384 U.S., at 200. In Cox v. Louisiana the statute struck down included as an element congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the pace may be occasioned thereby." As the District Court observed, "[a]s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute." 303 F. Supp., at 956.
[p528] We conclude that "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [Georgia] has supplied." Speiser v. Randall, 357 U.S., at 525. The most recent decision of the Georgia Supreme Court, Wilson v. State, supra, in rejecting appellee's attack on the constitutionality of § 26-6303, stated that the statute "conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice." 223 Ga., at 533, 156 S.E. 2d, at 448. Because earlier appellate decisions applied § 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt "measured by common understanding and practice" does not limit the application of § 26-6303 to "fighting" words defined by Chaplinsky. Rather, that broad standard effectively "licenses the jury to create its own standard in each case." Herndon v. Lowry, 301 U.S. 242, 263 (1937). Accordingly, we agree with the conclusion of the District Court, "[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application." 303 F. Supp., at 955-956. Unlike the construction of the New Hampshire statute by the New Hampshire Supreme Court, the Georgia appellate courts have not construed § 26-6303 "so as to avoid all constitutional difficulties." United States v. Thirty-seven Photographs, 402 U.S., at 369.
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

## Notes

* ↑ The District Court stated, "Accordingly, this order will not deal with the alleged unconstitutional application of this statute nor any of the other points raised in the writ, except for the facial unconstitutionality of Georgia Code § 26-6303." 303 F. Supp., at 953. The state conviction was upon two counts of assault and battery as well as upon two counts of using opprobrious and abusive language. Appellee was also convicted of federal offenses arising out of the same incident, and those convictions were affirmed by the Court of Appeals for the Fifth Circuit. Tillman v. United States, 406 F. 2d 930 (1969). The facts giving rise to the prosecutions are stated in the opinion of the Supreme Court of Georgia as follows: "The defendant was one of a group of persons who, on August 18, 1966, picketed the building in which the 12th Corps Headquarters of the United States Army was located, carrying signs opposing the war in Viet Nam. When the inductees arrived at the building, these persons began to block the door so that the inductees could not enter. They were requested by police officers to move from the door, but refused to do so. The officers attempted to remove them from the door, and a scuffle ensued. There was ample evidence to show that the defendant committed assault and battery on the two police officers named in the defendant. There was also sufficient evidence of the use of the opprobrious and abusive words charged, and the jury was authorized to find from the circumstances shown by the evidence that the words were spoken without sufficient provocation, and tended to cause a breach of the peace." 223 Ga. 531, 535, 156 S.E. 2d 446, 449-450. "Count 3 of the indictment alleged that the accused 'did without provocation use to and of M.G. Redding and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: "White son of a bitch, I'll kill you." "You son of a bitch, I'll choke you to death."' Count 4 alleged that the defendant 'did without provocation use to and of T.L. Raborn, and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: "You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces."'" Id., at 534, 156 S.E. 2d, at 449.
* ↑ Judge Sidney O. Smith, Jr., of Gainesville, Georgia, was the District Judge. Judge Lewis R. Morgan of Newnan, Georgia, a member of the Court of Appeals panel, sat as District Judge in Georgia before his appointment to the Court of Appeals.
* ↑ We were informed in oral argument that the Court of Appeals of Georgia is a court of statewide jurisdiction, the decisions of which are binding upon all trial courts in the absence of a conflicting decision of the Supreme Court of Georgia. Federal courts therefore follow these holdings as to Georgia law. Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956).
* ↑ The dissents question reliance upon Georgia cases decided more than 50 years ago. But Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), and Jackson v. State, 14 Ga. App. 19, 80 S.E. 20 (1913), were cited by the Supreme Court of Georgia in 1967 in Wilson v. State, 223 Ga. 531, 156 S.E. 2d 446, to support that holding. Thus, Fish and Jackson remain authoritative interpretations of § 26-6303 by the State's highest court.