P Nay11,1988

Honorable David H. Cain Opinion No. m-900 Texas House ofRepresentatives P. 0. BOX 2910 Re: Whether the use of Austin, Texas 78769 "abusive, indecent, profane orvulgar" language inapublic place constitutes an immediate breach of the peace (RQ-1378) Dear Representative Cain: Section 42.01 of the Penal Code provides inpart that

(a) A person commits an offense if he intentionally orknowingly:

(1)uses abusive, indecent, profane, or vulgar language inapublic place, f& the lancuaue bv itsverv utterance tends to incite an immediate breach of the peace[.] (Emphasis added.) Penal Code 542.01(a)(l). you ask the following questions:

(1)Does uttering abusive, indecent, profane, orvulgar language in apublic place constitute an immediate 'breach of the peace?' (2)How is 'breach of the peace' defined inrelation toArticle 42.01(a)(l)? Inorder for this provision towithstand scrutiny under the P broad guarantees for freedom of expression and due process

of law inthe United States Constitution, the utterances prohibited can & include "fighting words.11 Chanlinskv v. New Hamnshire, 315U.S. 568 (1942). See Goodins v. Wilson, F

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405U.S. 518 (1972) andAcker v. Texas 430 U.S. 962 (1977). See also Attorney General Opinion MW-1'(1979).l Whether particular words are nfighting words" is a ? matter of fact. Chanlinsky, sunra, at 573.

The test iswhat men ofcommon intelligence would understand would bewords 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 ofplainly tending to excite the addressee to abreach of the peace. See Goodingv. Wilson, sunra, at 522, quoting with appro;;; the Supreme Court of New Hampshire, 18 A.2d 754, 758, (1941). See aenerallv, Cohen v. California, 403U.S. 15, 20 (1971): Bachellar Mrv **V.** a land, 397U.S. 564, 567 (1970); and Goodinq, sunra. The "line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," Sneiser v. Randall, 357U.S. 513, 525 (1958). Speech punishable under the Penal Code provision does not include language merely harsh and insulting, see Goodinq, a at 525, and it should not include speech, actual or symbolic, that is only l'inappropriate," "naughty," "disgusting,"' "repulsive," wtactless," llgross,I1 or "appalling." Annot., 2A.L.R.4th 1331. Conviction under astatute specifying a "breach of the peace" as an element ofthe offense must bebased on jury instructions including an admonition that proof of "actual or threatened violence isessential." Woods v. State 213 S.W.2d 685, 687 (Tex. Crim. App. 1948). Inother words anything short of the use of "fighting words" does not co;lstitute abreach of the statute. &R Jimmerson v. State 561 S.W.2d 5 (Tex.

Speech is protected against punishment Crim. App. 1978). unless "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Terminello v. Chicaao, 337U.S. 1,4 (1949).

1. This statute does not concern speech legally obscene under the standards provided by the United States Supreme Court inWilier v. California, 418U.S. 915 (1973). See Snears v. State, 337 So.Zd 977 (Fla. 1976).

p.4439Honorable David H. Cain -Page 3 (JR-900)

Finally, because- the application of the statute may turn largely on the factual setting of the speech at issue,

- the test is whether, ina particular instance, an average

person would be inured to respond by fighting. person is An average

not someone who is overly sensitive or inured to the speech inquestion. overly Cohen. suora and Houston v. Hill, 482U.S. --, 96L.Ed.2d 398 (1987), quoting from aconcurring opinion ofJustice Powell inLewis v. New Orleans, 415U.S. 130, 135 (1974). SUMMARY Article 42.01(a)(l) of the Penal Code applies only to speech which as amatter of fact constitutes "fighting words." As a matter of law, the statute does not reach speech that merely causes public inconvenience, annoyance, or unrest. "Fighting wordsl'are words which would likely cause an average addressee to fight. An "average addressee" is not .someone either overly sensitive or

### overly inured to the speech in question.

JIM MATTOX Attorney General ofTexas MARYEELLER First Assistant Attorney General LouMCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAELEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Don Bustion Assistant Attorney General

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