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business law 2 double check 317 us. illionois, 63 st. 82, 1942 u.s lexix 1046 (1942) The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates.

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U.S.C.A.Const. Amend. 1, 14. Supreme Court of the United States. CHAPLINSKY v. STATE OF NEW HAMPSHIRE. No. 255. Argued Feb. 5, 1942. Decided March 9, 1942. Appeal from the Supreme Court of the State of New Hampshire. Walter Chaplinsky was convicted of violating a New Hampshire statute prohibiting the addressing of any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, or calling him by any offensive or derisive name. From a judgment of the Supreme Court of New Hampshire, 91 N.H. 310, 18 A.2d 754, affirming the conviction, the defendant appeals. Affirmed. West Headnotes [1] Constitutional Law 92 3851 [2] Constitutional Law 92 2070

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(U) Press in General 92k2070 k. In General. Most Cited Cases (Formerly 92k274.1(2.1), 92k274.1(2), 92k274) Where accused charged with cursing a public officer, was convicted under state statute prohibiting any person from addressing any offensive, derisive or annoying words to any other person lawfully in any street or any other public place, the statute could be attacked on the basis of “freedom of speech” but not on basis of “freedom of press” since spoken, not written, word was involved. Pub.Laws N.H.1926, c. 378, § 2; U.S.C.A.Const. Amends, 1, 14. [3] Constitutional Law 92 1310

92 Constitutional Law 92XXVII Due Process 92XXVII(A) In General 92k3848 Relationship to Other Constitutional Provisions; Incorporation 92k3851 k. First Amendment. Most Cited Cases (Formerly 92k274(3.1), 92k274.1(1), 92k84, 92k274, 92k274(3)) Freedom of speech, freedom of press and freedom of worship which are protected by the First Amendment of Federal Constitution from infringement by Congress are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.

92 Constitutional Law 92XIII Freedom of Religion and Conscience 92XIII(B) Particular Issues and Applications 92k1310 k. In General. Most Cited Cases (Formerly 92k274(3.1), 92k274(3), 92k274) Cursing a public officer is not the exercise of “religion” within Constitution protecting “freedom of worship”. U.S.C.A.Const. Amend. 14. [4] Constitutional Law 92 4509(8)

92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)2 Nature and Elements of Crime 92k4502 Creation and Definition of Offense 92k4509 Particular Offenses 92k4509(8) k. Disorderly Conduct and Breach of the Peace. Most Cited Cases (Formerly 92k274(3.1), 92k274(3), 92k274)

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Where accused was distributing literature of his sect on street, a disturbance occurred, a traffic officer started for police station with accused and they encountered a city marshal who repeated an earlier warning to accused who then cursed the city marshal, even if accused's activities which preceded the incident were religious in character and entitled to protection of the Fourteenth Amendment, they did not cloak accused with immunity from the legal consequences for concomitant acts committed in violation of a valid state criminal statute. Pub.Laws N.H.1926, c. 378, § 2; U.S.C.A.Const. Amend. 14. [5] Constitutional Law 92 1498

tion is not absolute at all times and under all circumstances and there are well-defined and narrowly limited classes of speech, the prevention and punishment of which does not raise any constitutional problem, including the lewd and obscene, the profane, the libelous, and the insulting or fighting words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. U.S.C.A.Const. Amend. 1, 14. [6] Constitutional Law 92 2070

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)1 In General 92k1498 k. Absolute Nature of Right. Most Cited Cases (Formerly 92k90.1(2), 92k90) Constitutional Law 92 1813

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(U) Press in General 92k2070 k. In General. Most Cited Cases (Formerly 92k90(2), 92k90) Constitutional Law 92 3851

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(H) Law Enforcement; Criminal Conduct 92k1813 k. Breach of the Peace; Unlawful Assembly. Most Cited Cases (Formerly 92k90.1(2), 92k90) Constitutional Law 92 2161

92 Constitutional Law 92XXVII Due Process 92XXVII(A) In General 92k3848 Relationship to Other Constitutional Provisions; Incorporation 92k3851 k. First Amendment. Most Cited Cases (Formerly 92k274.1(1), 92k274) The protection of the First Amendment, mirrored in the Fourteenth Amendment, is not limited to the idea that “freedom of the press” means only freedom from restraint prior to publication. U.S.C.A.Const. Amend. 1, 14. [7] Constitutional Law 92 1800

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(X) Defamation 92k2160 In General 92k2161 k. In General. Most Cited Cases (Formerly 92k90.1(5)) The “freedom of speech” protected by the constitu-

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(H) Law Enforcement; Criminal Conduct 92k1800 k. In General. Most Cited Cases (Formerly 92k274.1(2.1), 92k90.1(1), 92k90) Resort to epithets or personal abuse is not in any proper sense communication of information or

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opinion safeguarded by the Constitution, and its punishment as a criminal act raises no question under the constitution. U.S.C.A.Const. Amend. 1, 14. [8] Federal Courts 170B 505

(Formerly 62k1(2), 62k1 Breach of the Peace) Disorderly Conduct 129 109

170B Federal Courts 170BVII Supreme Court 170BVII(E) Review of Decisions of State Courts 170Bk504 Nature of Decisions or Questions Involved 170Bk505 k. Validity of State Constitution or Statutes. Most Cited Cases (Formerly 106k394(3)) Where New Hampshire statute, attacked on ground that it placed unreasonable restraint on freedom of speech, contained two provisions, the first relating to words or names addressed to another in a public place and the second referring to noises and exclamations, and the statute had been authoritatively construed by the highest court of New Hampshire which held that the two provisions were distinct and that one could stand separately from the other, the United States Supreme Court would accept that construction of severability and limit its consideration to the first provision under which the accused was convicted. Pub.Laws N.H.1926, c. 378, s 2; U.S.C.A.Const. Amend. 14. [9] Constitutional Law 92 1813

129 Disorderly Conduct 129k109 k. Language, Speech, and Threats in General. Most Cited Cases (Formerly 62k1(2), 62k1 Breach of the Peace) New Hampshire statute, prohibiting any person from addressing any offensive, derisive or annoying words to any other person lawfully in any street or any other public place or calling him by an offensive or derisive name, authoritatively construed by highest court of New Hampshire as punishing the use in a public place of words likely to cause a breach of the peace, does not contravene constitutional right of “freedom of speech.” Pub.Laws N.H.1926, c. 378, § 2; U.S.C.A.Const. Amend. 14. [10] Constitutional Law 92 4509(8)

92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)2 Nature and Elements of Crime 92k4502 Creation and Definition of Offense 92k4509 Particular Offenses 92k4509(8) k. Disorderly Conduct and Breach of the Peace. Most Cited Cases (Formerly 92k258(3.1), 92k258(3), 92k258) Disorderly Conduct 129 101

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(H) Law Enforcement; Criminal Conduct 92k1813 k. Breach of the Peace; Unlawful Assembly. Most Cited Cases (Formerly 92k274.1(2.1), 92k274.1(2), 92k274) Disorderly Conduct 129 101

129 Disorderly Conduct 129k101 k. Constitutional and Statutory Provisions. Most Cited Cases (Formerly 62k1(2), 62k1 Breach of the Peace) Disorderly Conduct 129 109

129 Disorderly Conduct 129k101 k. Constitutional and Statutory Provisions. Most Cited Cases

129 Disorderly Conduct 129k109 k. Language, Speech, and Threats in General. Most Cited Cases (Formerly 62k1(2), 62k1 Breach of the Peace) New Hampshire statute prohibiting any person from

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addressing any offensive, derisive or annoying words to any other person lawfully in any street or any other public place or calling him by any offensive or derisive name, authoritatively construed by highest court of New Hampshire as punishing the use in a public place of words likely to cause a breach of the peace, is not so vague and indefinite as to render a conviction thereunder a violation of “due process of law”. Pub.Laws N.H.1926, c. 378, § 2; U.S.C.A.Const. Amend. 14. [11] Constitutional Law 92 1800

viction of the accused under New Hampshire statute punishing the use in a public place of words likely to cause a breach of the peace did not substantially or unreasonably infringe upon “freedom of speech” protection by the Constitution. Pub.Laws N.H.1926, c. 378, § 2; U.S.C.A.Const. Amend. 14. [13] Constitutional Law 92 4671

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(H) Law Enforcement; Criminal Conduct 92k1800 k. In General. Most Cited Cases (Formerly 62k1(2) Breach of the Peace, 110k13.1(2.5), 110k13.1(2), 110k13) A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. [12] Constitutional Law 92 1814

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(H) Law Enforcement; Criminal Conduct 92k1814 k. Interaction with Public Safety Officials. Most Cited Cases (Formerly 92k274.1(2.1), 92k274.1(2), 92k274) Disorderly Conduct 129 131

92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)5 Evidence and Witnesses 92k4671 k. Other Particular Kinds or Items of Evidence. Most Cited Cases (Formerly 92k266(1), 92k266) In prosecution for violating state statute punishing the use in a public place of words likely to cause a breach of the peace, the refusal of state court to admit evidence of provocation and evidence bearing on the truth or falsity of the utterances was open to no constitutional objection, since whether the facts sought to be proved by such evidence constituted a defense to the charge or might be shown in mitigation were questions for the state court to determine. Pub.Laws N.H.1926, c. 378, § 2; U.S.C.A.Const. Amend. 14. [14] Federal Courts 170B 511.1

129 Disorderly Conduct 129k129 Challenges and Resistance to Authority 129k131 k. Verbal Resistance in General. Most Cited Cases (Formerly 62k1(6) Breach of the Peace, 92k274.1(2.1), 92k274.1(2), 92k274) Where accused stated to city marshal you are a “damned racketeer” and a “damned Fascist”, con-

170B Federal Courts 170BVII Supreme Court 170BVII(E) Review of Decisions of State Courts 170Bk511 Scope and Extent of Review 170Bk511.1 k. In General. Most Cited Cases (Formerly 170Bk511, 106k399(1)) Where conviction, under state statute punishing use in public place of words likely to cause a breach of the peace, was appealed to the United States Supreme Court on ground that the statute violated the Fourteenth Amendment, the function of the Supreme Court was fulfilled by a determination that the challenged statute, on its face and as applied,

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did not contravene the Fourteenth Amendment. Pub.Laws N.H.1926, c. 378, s 2; U.S.C.A.Const. Amend. 14. *568 **768 Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellant. Mr. Frank R. Kenison, of Conway, N.H., for appellee. *569 Mr. Justice MURPHY delivered the opinion of the Court. Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the municipal court of Rochester, New Hampshire, for violation of Chapter 378, Section 2, of the Public Laws of New Hampshire: ‘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, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.’ The complaint charged that appellant ‘with force and arms, in a certain public place in said city of Rochester, to wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat, the words following, addressed to the complainant, that is to say, ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists' the same being offensive, derisive and annoying words and names'. Upon appeal there was a trial de novo of appellant before a jury in the Superior Court. He was found guilty and the judgment of conviction was affirmed by the Supreme Court of the State. 91 N.H. 310, 18 A.2d 754. By motions and exceptions, appellant raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the

United States in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite. These contentions were overruled and the case comes here on appeal. There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on the streets *570 of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a ‘racket’. Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later a disturbance occurred and the traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way they encountered Marshal Bowering who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky who then addressed to Bowering the words set forth in the complaint. Chaplinsky's version of the affair was slightly different. He testified that when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint with the exception of the name of the Deity. Over appellant's objection the trial court excluded as immaterial testimony relating to appellant's mission ‘to preach the true facts of the Bible’, his treatment at the hands of the crowd, and the alleged neglect of duty on the part of the police. This action was approved by the court below which held that neither provocation nor the truth of the utterance would constitute a defense to the charge. [1] It is now clear that ‘Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and

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liberties which are protected by the Fourteenth Amendment from invasion by state *571 action’. Lovell v. City of Griffin, 303 U.S. 444, 450, 58 FN1 S.Ct. 666, 668, 82 L.Ed. 949. **769 Freedom of worship is similarly sheltered. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352. FN1 See also Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, decided December 8, 1941; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352; Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093; Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Grosjean v. American Press Co., 297 U.S. 233, 243, 56 S.Ct. 444, 446, 80 L.Ed. 660; Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484; Whitney v. California, 274 U.S. 357, 362, 371, 373, 47 S.Ct. 641, 643, 646, 647, 71 L.Ed. 1095; Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138. Appellant here pitches his argument on the due process clause of the Fourteenth Amendment. [2][3][4] Appellant assails the statute as a violation of all three freedoms, speech, press and worship, but only an attack on the basis of free speech is warranted. The spoken, not the written, word is involved. And we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term. But even if the activities of the appellant which preceded the incident could be viewed as religious in character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in vi-

olation of a valid criminal statute. We turn, therefore, to an examination of the statute itself. [5][6][7] Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumFN2 stances. There are certain well-defined and narrowly limited classes of speech, the prevention *572 and punishment of which has never been FN3 thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the peace. FN4 It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order FN5 and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352. FN2 Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (Brandeis, J., concurring); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352 . FN3 The protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that free-

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dom of the press means only freedom from restraint prior to publication. Near v. Minnesota, 283 U.S. 697, 714, 715, 51 S.Ct. 625, 630, 75 L.Ed. 1357. FN4 Chafee, Free Speech in the United States (1941), 149. FN5 Chafee, op. cit., 150. [8] The state statute here challenged comes to us authoritatively construed by the highest court of New Hampshire. It has two provisions-the first relates to words or names addressed to another in a public place; the second refers to noises and exclamations. The court ( 91 N.H. 310, 18 A.2d 757) said: ‘The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional.’ We accept that construction of severability and limit our consideraFN6 tion to the first provision of the statute. FN6 Since the complaint charged appellant only with violating the first provision of the statute, the problem of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484, is not present. **770 *573 On the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being ‘forbidden except such as have a direct tendency to cause acts of violence by the person to FN7 whom, individually, the remark is addressed’. It was further said: ‘The word ‘offensive’ is not to be defined in terms of what a particular addressee thinks. * * * The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. * * * The English language has a number of words and expressions which by general consent are ‘fighting words' when said without a disarming smile. * * * Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as

coming within the purview of the statute as heretofore interpreted 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, words whose speaking constitute a breach of the peace by the speaker-including ‘classical fighting words', words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.' FN7 State v. Brown, 68 N.H. 200, 38 A. 731; State v. McConnell, 70 N.H. 294, 47 A. 267. [9][10][11] We are unable to say 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. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352; *574 Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093. This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573. FN8 FN8 We do not have here the problem of Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Even if the interpretative gloss placed on the statute by the court below be disregarded, the statute had been previously construed as intended to preserve the public peace by punishing conduct, the direct tendency of which was to provoke the person against whom it was

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directed to acts of violence. State v. Brown, 1894, 68 N.H. 200, 38 A. 731. Appellant need not therefore have been a prophet to understand what the statute condemned. Cf. Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066. See Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232. [12] Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations ‘damn racketeer’ and ‘damn Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. [13][14] The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or falsity of the utterances is open to no Constitutional objection. Whether the facts sought to be proved by such evidence constitute a defense to the charge or may be shown in mitigation are questions for the state court to determine. Our function is fulfilled by a determination that the challenged statute, on its face and as applied, does not contravene the Fourteenth Amendment. Affirmed. U.S. 1942. Chaplinsky v. State of New Hampshire 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 END OF DOCUMENT

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