Opinion
No. 1:98cv254-D-D
September 1, 2000
OPINION
Before the court is the renewed motion of the State of Mississippi, as Intervenor, for summary judgment. Upon due consideration, the court finds that the motion should be granted.
Factual and Procedural History
The facts of this case have been previously outlined by the court. See Dallas v. City of Okolona, No. 1:98cv254-D-D (N.D.Miss. Dec. 7, 1999). In the interest of convenience, the court will summarize the following facts:
Over a period of approximately 18 months, the Plaintiff was twice arrested and charged with the offense of public profanity pursuant to Mississippi Code Annotated section 97-29-47. The first arrest occurred on or about July 6, 1996. While attending a rodeo in Chickasaw County, Mississippi, and in the presence of Defendant Edward Maher, a City of Okolona police officer, Dallas instructed a man in the rodeo parking area that he was "a crazy old son of a bitch."
The second incident occurred on January 21, 1998, approximately one and one-half years after the rodeo arrest, when Dallas was stopped for speeding on Highway 41 in the Okolona city limits by the Defendant Maher. Dallas was escorted to jail and initially charged with speeding and failure to obey a police officer. An additional charge of public profanity was added after Dallas' repeated use of the word "damn" in the presence of others. Dallas was never prosecuted under the statute. In each instance the charges were either dismissed or retired to the files.
Dallas contends that section 97-29-47 of the Mississippi Code unconstitutionally infringes upon his First Amendment guarantees of free speech and seeks declaratory relief to that effect. As Intervenor, the State of Mississippi previously filed a motion for summary judgment as to Dallas' declaratory relief. This court denied that motion. Since the entry of that Order, the Mississippi Court of Appeals has addressed the constitutionality of the public profanity statute. Accordingly, the State renewed its motion for summary judgment in light of the state court decision.
Analysis Summary Judgment Standard
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) ("The burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case."). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
State Court Decision
On June 6, 2000, the Mississippi Court of Appeals rendered an opinion in Brendle v. City of Houston, 759 So.2d 1274 (Miss.Ct.App. 2000), addressing a constitutional attack upon Mississippi Code Annotated section 97-29-47. William Brendle, the appellant, was convicted in the Municipal Court of Houston, Mississippi, of public profanity and resisting arrest after allegedly saying "God D___", "d___", and "f___" in the presence of a police officer. Brendle appealed and after a trial de novo, the Circuit Court of the First Judicial District of Chickasaw County affirmed the judgment of the municipal court and remanded the case for sentencing. Thereafter, Brendle filed an appeal in the Mississippi Court of Appeals raising numerous issues, including whether his speech constituted profanity as a matter of law.
It is important to note that Brendle did not challenge the constitutionality of Mississippi's public profanity statute on its face, nor did he challenge the sufficiency of the evidence used to support the charges against him. Rather, Brendle claimed that the public profanity statute was unconstitutionally applied to him. In other words, he argued that the words he used in his exchange with Officer Ford encompassed constitutionally protected speech not subject to regulation by the State of Mississippi. The ultimate question was whether Brendle's words could constitutionally support a conviction or whether they were protected by the First Amendment.
Brendle argued that section 97-29-47 was unconstitutionally applied to his case, contending that the subject words were "pure speech" protected by the First Amendment to the United States Constitution. Section 97-29-47 provides:
Public profanity or drunkenness
If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence of two (2) or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars ($100.00) or be imprisoned in the county jail not more than thirty (30) days or both.
In addressing Brendle's "as applied" challenge, the court of appeals exhaustively reviewed the litany of Supreme Court cases addressing protected speech under the First Amendment. Beginning with the landmark decision in Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the appellate court recognized that the Supreme Court has drawn definite and narrow classes of speech which the prevention and punishment of . . . [have] never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and insulting or `fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
Brendle, 759 So.2d at 1279 (quoting Chaplinsky, 315 U.S. at 571, 62 S.Ct. at 766). Since Chaplinsky, the extent of the "fighting words doctrine" has been further clarified by the Supreme Court. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (states may not, consistently with the First and Fourteenth Amendments, make the simple public display of a single four-letter expletive a criminal offense); Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (invalidating statute as overbroad because it was not limited to words which tended to cause a breach of the peace); Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (invalidating enactment as facially overbroad because ordinance punished only spoken words and was not limited in scope to fighting words).
Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God d___ed racketeer," and "a d___ed Fascist and the whole government of Rochester are Fascists or agents of Fascists." Id. at 569, 62 S.Ct. at 766. The New Hampshire law under which Chaplinsky was convicted 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. . . ." Id. On appeal, Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. Id. However, because the New Hampshire Supreme Court had previously construed the statute as being limited to those words having "a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed . . .," the Supreme Court upheld the statute as having been "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." Id. at 573, 62 S.Ct. at 766 (citations omitted). Still, the Chaplinsky court observed that those words constituting fighting words were "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 and morality." Id. at 574, 62 S.Ct. at 766 .
In addition to the above cases, the appellate court centered on a line of Supreme Court cases addressing the constitutionality of certain speech directed at law enforcement officers. The court reviewed City of Houston v. Hill, 482 U.S. 451, 454, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), Hess v. Indiana, 414 U.S. 105, 107, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973), and Lewis, 415 U.S. at 130, 94 S.Ct. at 970, each of which addressed the use of obscene language directed toward police officers. In each case, the Supreme Court concluded that the ordinance or statute at issue was overbroad in that the language sought to be punished did not fall within any of the "limited classes" of speech allowed to be regulated by the states.
The court of appeals also examined other state and federal cases involving profane language addressed to police officers. In particular, the court found persuasive an opinion which dealt with a city ordinance comparable to the Mississippi public profanity statute. See City of Pontiac v. Klein, 242 N.W.2d 436 (Mich. 1976). The City of Pontiac enacted a local ordinance prohibiting the use of "indecent, profane, or obscene language in the presence of others." Id. (quoting Pontiac Ordinance No. 728, § 2A(20a)). At trial, the defendants requested a jury instruction informing the jury they could only convict the defendants of the charges if they found that the words uttered by the defendants were "`fighting words' as that term is used in Chaplinsky v. New Hampshire . . . and in subsequent cases." Id. The Michigan Court of Appeals stated:
We are of the unanimous opinion that the trial judge instructed on the law as it should be but not as it is. It is ridiculous to perpetuate an artificial characterization of obscenity as constituting `fighting words'. We would ordinarily be disposed to take judicial notice that many members of society are not fighters. Does this illusive concept require motivation to combat from all who are exposed to the utterance? We think not but we are told by the highest court that `God d___ed mother F___ing police' must be determined by the trier of fact to be fighting words to sustain a conviction for violation of a breach of peace ordinance. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).
While there are several types of speech which may properly be punished by the states, it appears that the `fighting words' classification is the only one which might properly have been applied to the defendants' conduct in the present case. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Since, as interpreted by the trial judge, the ordinance permitted the jury to convict the defendants after merely finding that their language was `grossly vulgar' or `profane', the convictions cannot be allowed to stand. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).
Id. at 437-38. While the Michigan Court of Appeals did not agree with the Supreme Court's requirement that convictions for profane speech rise to the level of "fighting words," the appellate court nonetheless reversed the conviction requiring the trial judge on retrial to instruct the jury, essentially, that to convict the defendants under the statute, they must first determine whether the words used constituted "fighting words."
Based on Chaplinsky and the Supreme Court decisions thereafter, which consistently recognized that the states have the "power constitutionally to punish `fighting' words under carefully drawn statutes not also susceptible of application to protected expression," the appellate court determined that the State of Mississippi could not, under the confines of the United States Constitution, regulate speech which does not fall into the categories of "fighting words," "obscene words," or some "libelous words." Brendle, 759 So.2d at 1283. The Brendle court, however, was not faced with either libelous words or obscene words. Rather, the court was called to determine whether Brendle's language constituted fighting words. The appellate court's holding is worth quoting:
The court noted that obscene expressions are defined as those that appeal to prurient interests and are in some way erotic. Cohen, 403 U.S. at 20, 91 S.Ct. 1780. Such expressions were not at issue in Brendle.
Brendle's language while vulgar, indecent, and arguably profane, did not rise to the level of "fighting words." His language was not "by its very utterance" sufficient to incite an immediate breach of the peace. This is not to say that shouting profanities at a police officer is appropriate or proper behavior in any circumstance. In fact, such conduct may give rise to a situation where an immediate breach of the peace may occur. However, the facts in this case do not support such a situation. . . . Even further, there was no evidence that Brendle's epithets sought to incite others to prevent his arrest. As such, we find that the circuit court committed manifest error in determining that Brendle's conduct gave rise to probable cause for his arrest for a violation of Mississippi's statute against public profanity. Accordingly, we vacate Brendle's conviction for public profanity.
First Amendment Analysis
It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be readily susceptible to a narrowing construction that would make it constitutional, it will be upheld. The key to application of this principle is that the statute must be readily susceptible to the limitation; the court will not rewrite a state law to conform it to constitutional requirements. Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988); ACLU v. Johnson, 194 F.3d 1149, 1159 (10th Cir. 1999). In analyzing a facial challenge to an ordinance or statute, "the views of the state's highest court with respect to state law are binding on the federal courts." Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983). Moreover, "federal courts are bound by decisions of a state's intermediate appellate courts unless there is persuasive evidence that the highest state court would rule otherwise." King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 158, 68 S.Ct. 488, 92 L.Ed. 608 (1948).Here, Dallas submits two principal arguments in opposition to the State's motion for summary judgment: 1) that Brendle is inapplicable because the state court decision addressed an "as-applied" attack to the public profanity statute rather than a facial challenge as presented by the Plaintiff, and 2) that the broad sweeping language of the statute is impossible to narrowly construe. The court is of the opinion that each of these arguments is without merit.
First, the Plaintiff correctly observes that he is not asserting an as-applied challenge, in which the issue is whether a particular course of conduct is within constitutional parameters. Rather, he is presenting a facial challenge, in which the issue is whether the terms of a statute or ordinance may be constitutionally applied under any circumstance. Notwithstanding the distinctions in these challenges, it appears clear that the Brendle court not only addressed the as-applied challenge to the statute, but also proceeded a step beyond and established a limiting construction within the confines of Chaplinsky. See Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 561 (5th Cir. 1988) (even though state court decision did not specifically mention Chaplinsky, the statute was nonetheless readily subject to a limiting construction).
Here, the Mississippi Court of Appeals first addressed the scope of the statute, specifically whether the enactment was susceptible of application to protected expression. The court concluded:
[I]t is clear that Mississippi cannot, under the confines of the U.S. Constitution, regulate speech which does not fall into the categories of "fighting words," "obscene words," or some "libelous words."
Brendle, 759 So.2d at 1283. Based on that construction, the appellate court then addressed whether the narrowly construed statute was constitutionally applied to Brendle, ultimately determining that his conviction could not stand. Given the posture of the state court decision, the court is of the opinion that the Plaintiff's argument is premised on a distinction without a difference.
With respect to Dallas' second argument, the court need only reiterate that a federal court faced with an overbreadth challenge to a statute or ordinance should consider whether the enactment is readily subject to a narrowing construction by the state courts; however, the federal court may not itself provide a limiting construction of legislation that is not so readily susceptible. Hill v. City of Houston, 789 F.2d 1103, 1112 (5th Cir. 1986). Indeed, federal courts "do not sit as a `super' state legislature, [and] may not impose [their] own narrowing construction onto the ordinance" if the state courts have not already done so. Id.
Here, Mississippi Code Annotated section 97-29-47 has been narrowly construed by Mississippi's intermediate state court to apply to "fighting words," a valid exercise of the state power to prohibit the "use in a public place of words likely to cause a breach of the peace." Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770. This court accepts the Mississippi Court of Appeals' authoritative statement that the statute reaches only those expressions that constitute fighting words within the meaning of Chaplinsky. With this limiting construction possible, section 97-29-47 is not substantially overbroad. Thus, the court is unable to say that the limited scope of the statute as construed contravenes the constitutional guarantees afforded by the First Amendment. "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." Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770.
Accordingly, the State of Mississippi's motion for summary judgment shall be granted, and the Plaintiff's claim for declaratory relief shall be dismissed with prejudice.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:
the Intervenor, State of Mississippi's motion for summary judgment is GRANTED;
the Plaintiff's claim for declaratory relief is DISMISSED WITH PREJUDICE; and
the Plaintiff's motion to strike is DENIED.