Gooding v. Wilson/Dissent Blackmun

MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.

It seems strange, indeed, that in this day a man may say to a police officer, who is attempting to restore access to a public building, "White son of a bitch, I'll kill you" and "You son of a bitch, I'll choke you to death," and say to an accompanying officer, "You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces," and yet constitutionally cannot be prosecuted and convicted under a state statute that makes it a misdemeanor to "use to or of another, and in his presence... opprobrious words or abusive language, tending to cause a breach of the peace...." This, however, is precisely what the Court pronounces as the law today.

The Supreme Court of Georgia, when the conviction was appealed, unanimously held the other way. Wilson v. State, 223 Ga. 531, 156 S.E. 2d 446 (1967). Surely any adult who can read—and I do not exclude the appellee-defendant from that category—should reasonably expect no other conclusion. The words of Georgia Code § 26-6303 are clear. They are also concise. They are not, in my view, overbroad or incapable of being understood. Except perhaps for the "big" word "opprobrious"—and no point is made of its bigness—any [p535] Georgia schoolboy would expect that this defendant's fighting and provocative words to the officers were covered by § 26-6303. Common sense permits no other conclusion. This is demonstrated by the fact that the appellee, and this Court, attack the statute, not as it applies to the appellee, but as it conceivably might apply to others who might utter other words.

The Court reaches its result by saying that the Georgia statute has been interpreted by the State's courts so as to be applicable in practice to otherwise constitutionally protected speech. It follows, says the Court, that the statute is overbroad and therefore is facially unconstitutional and to be struck down in its entirety. Thus Georgia apparently is to be left with no valid statute on its books to meet Wilson's bullying tactic. This result, achieved by what is indeed a very strict construction, will be totally incomprehensible to the State of Georgia, to its courts, and to its citizens.

The Court would justify its conclusion by unearthing a 66-year-old decision, Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), of the Supreme Court of Georgia, and two intermediate appellate court cases over 55 years old, Jackson v. State, 14 Ga. App. 19, 80 S.E. 20 (1913), and Elmore v. State, 15 Ga. App. 461, 83 S.E. 799 (1914), broadly applying the statute in those less permissive days, and by additional reference to (a) a 1956 Georgia intermediate appellate court decision, Lyons v. State, 94 Ga. App. 570, 95 S.E. 2d 478, which, were it the first and only Georgia case, would surely not support today's decision, and (b) another intermediate appellate court decision, Samuels v. State, 103 Ga. App. 66, 118 S.E. 2d 231 (1961), relating, not to § 26-6303, but to another statute.

This Court appears to have developed its overbreadth rationale in the years since these early Georgia cases. The State's statute, therefore, is condemned because the [p536] State's courts have not had an opportunity to adjust to this Court's modern theories of overbreadth.

I wonder, now that § 26-6303 is voided, just what Georgia can do if it seeks to proscribe what the Court says it still may constitutionally proscribe. The natural thing would be to enact a new statute reading just as § 26-6303 reads. But it, too, presumably would be overbroad unless the legislature would add words to the effect that it means only what this Court says it may mean and no more. See Criminal Court of Georgia § 26-2610 (1969).

I cannot join the Court in placing weight upon the fact that Judge Smith of the United States District Court had been a Georgia practitioner and that Judge Morgan of the Court of Appeals had also practiced in that State. After all, each of these Georgia federal judges are bound by this Court's self-imposed straitjacket of the overbreadth approach. Judge Smith's personal attitude is clear, for he said: "'[T]his Court does not see any policy reasons for upholding the right of a person to use the type of language expressed by this petitioner. It strains the concept of freedom of speech out of proportion when it is argued that such language is and should be protected.' 303 F. Supp. 953, 955 (ND Ga. 1969)." And the Court of Appeals joined in this comment when, on the point at issue here, it merely agreed "with the well reasoned opinion of the district court." 431 F. 2d 855, 859 (CA5 1970).

For me, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), was good law when it was decided and deserves to remain as good law now. A unanimous court, including among its members Chief Justice Stone and Justice Black, Reed, DOUGLAS, and Murphy, obviously thought [p537] it was good law. But I feel that by decisions such as this one and, indeed, Cohen v. California, 403 U.S. 15 (1971), the Court, despite its protestations to the contrary, is merely paying lip service to Chaplinsky. As the appellee states in a footnote to the brief, p. 14, "Although there is no doubt that the state can punish 'fighting words' this appears to be about all that is left of the decision in Chaplinsky." If this is what the overbreadth doctrine means, and if this is what it produces, it urgently needs re-examination. The Court has painted itself into a corner from which it, and the States, can extricate themselves only with difficulty.