Lewis v. City of New Orleans – Oral Argument – December 10, 1973

Media for Lewis v. City of New Orleans

Audio Transcription for Opinion Announcement – February 20, 1974 in Lewis v. City of New Orleans

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Warren E. Burger:

We’ll hear arguments next in 72-6156, Lewis against New Orleans.

Mr. Reed.

John Wilson Reed:

Yes, Your Honor.

Warren E. Burger:

You can assume that we know the facts of your case.

John Wilson Reed:

Thank you, Your Honor.

Warren E. Burger:

Stride into it, if you will.

John Wilson Reed:

Mr. Chief Justice and may it please the Court.

I believe this Court is familiar with this case as the second time here.

We’d like to emphasize very briefly a few of the facts though.

The situation is — typifies a sort of situation that probably repeats itself everyday in the urbanized parts of our society.

The defendant, Mallie Lewis was upset about some particular police conduct directed towards her son, Joseph.

She failed to get satisfactory answers from the police.

Upon the advice of the police, she followed the police patrol car carrying her son in the Central Lockup in New Orleans.

Now, the police patrol car seeing that it was being — that he was being followed eventually pulled over the appellant apparently to find out why she was following him.

The appellant got out of the car, protested again her treatment by the police and the failure to explain to her what was being done with her son.

And at that point, according to the police testimony said, “You god damn M. F. police, I am going to Giarrusso about this.”

I think the part, “I am going to Giarrusso about this,” should not be ignored.

Giarrusso is the Superintendent of Police in New Orleans, a high public official and a comment by Mallie Lewis reflects an intention to complain as an expression of some First Amendment interest.

The ultimate issue in the case is one of the limits of protest and expression of anger by a citizen who feels aggrieved by police conduct.

Statute under which Mallie Lewis was convicted provides that, it shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward all with reference to any member of the city police while in the actual performance of his duty.

When this case was last before the Court, that ordinance had never been the subject of any sort of construction and had been upheld all the way along the line on its face.

It had never in fact received any recent consideration.

In light of this Court’s vacating the original judgment and the remand of the Supreme Court of Louisiana has once again affirmed the appellant’s conviction this time with an opinion.

The position of the appellant that the opinion below of the Louisiana Supreme Court is not a narrowing construction of the ordinance, that it does not resolve the constitutional problems and that it leaves punishable language, which is merely opprobrious, language that this Court held in Gooding versus Wilson cannot be punished.

I think the point that most clearly emphasizes this is the provision in the statute that the language need not only be spoken towards the police but maybe spoken merely with reference to the police.

This issue was raised right from the very beginning.

The problem with in reference to the police, the problem of statements made out of the hearing of the particular police officer spoken about.

It’s an obvious — an apparently obvious defect in an ordinance that might otherwise be made applicable to fighting words.

But nowhere does the opinion of the Louisiana Supreme Court below address that issue and yet it was very clearly before the Court the dissent, picked it up at great length below but the majority ignored it.

And I submit that what the majority did below was justified that ordinance on its face which cannot be done under this Court’s holding in Gooding.

John Wilson Reed:

Now admittedly, the court below does refer to fighting words on a couple of occasions in its opinions but it never articulates what the fighting words standard means.

Whether it is the dictum of Chaplinsky that fighting words of those which are likely to provoke violence or the mere utterance of which inflicts injury or the holding of Chaplinsky and the holding of Gooding that the only language punishable is that which is likely to provoke a violent response.

I think what the Louisiana Supreme Court did below is similar to what the California Courts had done with the ordinance involved in Cohen versus California.

And in that case, the late Mr. Justice Harlan noted in the footnote that although the Supreme Court of California had limited the scope of the ordinance to utterances likely to result in violence.

It had more or less made a per se holding that all obscene language or epithets of the type uttered by Cohen were in all cases likely to provoke violence.

And that’s basically the way the Louisiana Supreme Court below has afforded this Court’s holding in Gooding by simply deciding, okay, all opprobrious and obscene language is fighting words and that is the end of it.

But I think that circumvents this Court’s holding completely.

I think an ordinance like this because of the manner in which it is enforced and the courts in which it is enforced presents a good case for the application of the “overbreadth” doctrine.

The ordinance has been on the books in Louisiana and enforced in New Orleans for 77 years but until this past couple of years has not been the subject of any appellate decisions whatsoever.

It is not the sort of ordinance that is going to effectively narrowed on a case by case basis.

The whole ordinance is overbroad, it must be thrown out and standard set for how to write a good ordinance, how the legislative authorities in New Orleans can address themselves to the problems.

There is implicit in the opinion of the Supreme Court below that an ordinance such as this can be justified as opposed to the ordinance involved in Gooding because of the limitation of the ordinance to language spoken of the police.

I think the interest involved tend to cut the other way and of anything the fact that this ordinance is limited to language spoken of the police suggests that the standard should be even tighter and more rigorous and that this Court should assure that the fighting word standard is not abused in this context.

I think it is necessary to go back to the facts again because I don’t think it is clear at all that what Mallie Lewis uttered were in fact fighting words.

It was an expression of anger.

Someone might pound their fist in anger or pull a hair in anger or simply if they were a person of great self-control say, “I am angry.”

The comment was directed at all police generally, not just the police officer there.

Tied in with it was a statement that I am aggrieved, I am going to complain.

I do not think Police Officer Berner could legitimately feel that the language addressed to him by Mallie Lewis was intended to provoke him.

And there is nothing in the record to suggest that Officer Berner was provoked.

Warren E. Burger:

Are you suggesting that in a heated exchange of that kind, people undertake to dissect in parts and analyze these things as we are doing up here now properly here?

John Wilson Reed:

It’s not completely clear to me that it was a heated exchange and secondly, I was saying the context of a citizen to a police officer, I do expect that sort of consideration.

A police officer is — the Court I know is familiar with it, the comments on the Model Penal Code is accustomed to language of this sort.

The citizen is not and the police officer deals day to day with situations in which people feel hostile towards it.

Both the innocent and the guilty being arrested or being accosted or investigated by the police are going to feel aggrieved.

The innocent wants to know why it is happening to them and the guilty realizes that the game is up and the people who the police are dealing with, in most circumstances feels some anger towards the police.

Warren E. Burger:

Do you think that makes it tolerable and acceptable then?

John Wilson Reed:

I think if it’s an impulsive expression of anger, yes.

I think if it’s fair for the police officer not to consider it as a provocation, I think the answer is yes.

I’d like distinguish certain kinds of words.

John Wilson Reed:

Let’s say a defendant or a citizen says, “You god damn M. F. police, take off your gun and I’ll show you, who’s the boss.”

Well, that’s a challenge to the police officer right there.

It’s a challenge to his authority.

It’s a dare “I dare you to do something.”

The words uttered by Mallie Lewis here aren’t that kind of language.

I mean, Your Honor, Mr. Chief Justice, in Cohen, you know that the words uttered by the defendant there were somewhat childish.

They were.

They were premeditated that that was the way he wanted to express himself.

He had time to think it out in advance.

Mallie Lewis was acting in a stressful situation.

She was expressing anger and the only way it appeared to her to express anger, not —

Warren E. Burger:

Chaplinsky situation fraught to its attention, wasn’t that an expression in anger?

John Wilson Reed:

Yes, and I’ll —

Warren E. Burger:

Was that an excuse there?

John Wilson Reed:

Well, I’d like to consider Chaplinsky that’s right along that line.

We do not dispute the law — the legal rule that was announced in Chaplinsky that fighting words are not protected speech.

The question is what are the fighting words?

I think the application of that standard to the utterances expressed in Chaplinsky is no longer free from doubt.

This Court said there that argument is unnecessary that god damned fascist and racketeer, are fighting words.

I think the argument today might very well be necessary on that point.

In Gooding, this Court said, “God damn you, get out of the road,” while clearly expressing disgrace were not fighting words.

Well, I think —

Warren E. Burger:

Wasn’t that tied to a construction given, I think by the Georgia Court at an earlier date?

John Wilson Reed:

Right, but as I understand the Court’s opinion, it was used as an example of the fact that the Georgia Courts had been applying the ordinance there to situations that did not involve fighting words and at that case was cited as an example in which a jury issue was raised by that utterance.

And this Court was of the opinion that no jury issue was raised because those were — while words were opprobrium were not clearly fighting words.

And, you know, I would think the average person today might feel that he was less likely to provoke a violent response if he said to a trained police officer in a metropolitan environment, “You are a god damn racketeer.”

And if he said to a stranger down a country road, “God damn you, get out of the road.”

I am personally would think I would be more likely to be — get a violent response from the stranger on the country road.

So I think —

Warren E. Burger:

Do you think the word racketeer is redundant in the city in the metropolitan area? [Laughter]

John Wilson Reed:

I didn’t fully understand that.

Mr. Reed.

John Wilson Reed:

Everybody else do.

the Chaplinsky definition of fighting words and the one I reaffirmed in Gooding was words which by there very utterance tend to emphasize an immediate breach of peace.

Now, I follow your argument that these words could not incite a police officer to immediate breach of peace.

But apart from the police officer, what’s the meaning of what Louisiana Supreme Court said in this sentence?

We find — I am reading from page 56 of your appendix, we find that Section 49-7 is not offensive to protective speech.

It is narrowed to fighting words uttered to specific persons at a specific time.

John Wilson Reed:

All I can say about that sentence Your Honor is that it is contradicted by other parts of the opinion.

It’s contradicted by saying wantonly cursing or reviling or using obscene or opprobrious words are not a protected means of communication, the appendix of 56.

In other words, not withstanding the quote from Chaplinsky actually, the ordinance is read to embrace more than just words that would provoke or incite to an immediate breach of peace.

John Wilson Reed:

I think it is very clear that the —

Now, where is that in the opinion?

John Wilson Reed:

The prohibitions of Section 49-7 are self-explanatory.

This is right following that sentence —

John Wilson Reed:

Right.

— of 56.

John Wilson Reed:

56 to 57, the proscriptions are narrow and specific, wantonly cursing reviling or using obscene or opprobrious language but this Court has held the mere use of an obscenity is not fighting words.

The mere use of an opprobrious language is not fighting words.

Now, the court below does look at Chaplinsky but what’s significant in the court’s reading of Chaplinsky is nowhere does the Louisiana Supreme Court recognized that Chaplinsky’s conviction was upheld because New Hampshire had narrowed the ordinance.

Louisiana Supreme Court below refers to Chaplinsky’s conviction, refers to the ordinance and then says Chaplinsky’s conviction was okay and it is okay here.

Never does the Louisiana Supreme Court start to think about the construction issue.

And I think the opinions, the justification of the ordinance on its face.

Now, I suppose it would be possible to lift out of there a section of the opinion and say, this is what the Supreme Court meant and perhaps tell them what they meant.

But I don’t think it’is clear just reading the opinion as it stands now that —

Well tell me this, if in fact this ordinance were limited to words tending to incite an immediate breach of the peace.

And not a police officer but some private citizen was the one to whom the words were addressed, would the words used here —

John Wilson Reed:

The words used here to —

— been fighting words?

John Wilson Reed:

— on a citizen to citizen encounter under properly narrowed ordinance might very well be considered fighting words.

John Wilson Reed:

Not necessarily but they might be.

I think it would be jury issue or a judge issue in the case as this case in Louisiana but I think it would raise a question.

Warren E. Burger:

Do you think there is a factor to be considered when in balancing this idea that a policeman should be prepared to take more than an ordinary citizen?

John Wilson Reed:

That’s the concept expressed basically in your case isn’t it?Yes.

But in that process, do you think you have to take into account that the policeman is a man who, certainly in New Orleans.

Just bring a pistol right on his belt with probably no jacket over, a good deal at the time of the year and if they do get into a fight of it.

If not withstanding our parsing of how innocent these words are, they do in fact get into a fight, which allow them to have a rather serious if not a fatal fight because of the presence of firearms?

Warren E. Burger:

Well the question is who — as I understand fighting words, it’s the person to whom the words are addressed is going to be the first to act.

John Wilson Reed:

Now, if after these words are uttered, the police officer says something and the situation escalates the sooner or later —

Warren E. Burger:

What I am talking about is the usual routine that I thought was implicit.

The police officer arrests and then this escalates into a physical resistance of arrest, a struggle perhaps a possibility of this arrestee seizing the pistol or trying to seize it?

John Wilson Reed:

Well that possibility exists whenever any arrest is made that the person will protest in fact of anything it suggest why language like this if the Court agrees that it is inherently harmless, it is all the more reason why somebody should not be arrested.

And Your Honor’s comment that you know what usually happens would be that the person would be arrested upon uttering something like that.

I do not think that is entirely clear.

I think there is inherent in an ordinance such as this.

A possibility for abuse by the police in its enforcement similar to the sort of abuse that was possible under the vagrancy ordinance is criticized in Papachristou.

If the police are called to a citizen to citizen encounter or that the language used is reported to them, they will make some judgment whether they think this has escalated to the point where criminal sanctions are required.

Or they may simply accommodate the interest by saying, “Well, he did go a little loud but just stay away from him.”

In the police–citizen encounter, this gives the police officer tremendous amount of discretion to make arrest where no other ground for arrest exists.

This goes — this argument goes somewhat beyond the record but you don’t find armed robbers, murderers, burglars being charged with those serious felonies and reviling a police.

You find it in the situation of someone like Mallie Lewis who did nothing else wrong.

The situation of Yvonne Martin and that record was before the court too in a related case.

No other crimes charged.

For example, let us take a situation where the police deal repeatedly once a month with a known criminal on the street.

One day, they come down and they say, “Okay, up against the wall.”

And he is going to stock you and frisk you and the guy says, “You m. s., why are you always bothering me?

Man, why don’t you go by to somebody else?

I haven’t done anything wrong.”

The Police frisk him, they find nothing, right then, they have there in a position where they can put this guy away.

They can bother him, send him through the trouble of making bond when they are really not offended by that language, expect that language in that type of situation and may very well be using this language themselves on occasion?

John Wilson Reed:

A lawyer might use it to his partner quietly in a courtroom when taken by surprise by a witness he’s called.

I don’t think the police in that context would be offended by that language but the existence of a statute like this gives the possibility for the abuse of that statute by the police.

I think there is a more significant First Amendment interest in allowing citizens to criticize the police and there is no law allowing citizens to criticize citizens.

In the libel decisions of this Court reflect that in Time versus Pate, St. Amant versus Thompson, this Court has held the police to be public officials unless entitled to somewhat less protection than a purely private citizen from possibly libelous statements by the press, by people running for political office.

And I think that all of the decisions in the past show that public officials can be criticized more harshly and that there is an interest in permitting that sort of criticism.

To the extent that there might be a rational for allowing a broader proscription of speech when that speech is addressed to the police that rational is not addressed by the ordinance here.

The question of interference is a very good — would make a very good rationale but interference is not the object of the statute.

And Colten v. Kentucky involved an interference the statute was addressed to that sort of convict.

It did not even involve any obscene or opprobrious language.

This ordinance — an ordinance of this type might be upheld if it were addressed to interferences but it is not.

But it is addressed to language used to the police.

John Wilson Reed:

Yes, but the limitation —

And at the very least, the state court has decided that the police aren’t any less insensitive than anybody else.

They are not less sensitive or any more insensitive.

John Wilson Reed:

I don’t think they have decided that.

I don’t think they really attack the question.

Warren E. Burger:

Maybe they didn’t think the distinction was worth treating.

John Wilson Reed:

That’s possible.

Warren E. Burger:

As made by Justice White.

John Wilson Reed:

But if they are certainly not entitled to more protection unless it is an interference type rational.

But the statute — there’s no construction of the statute and the statute or its face is not directed to the question of interference.

But let’s assume that the — let’s assume their very opinion was construable in limiting the statute to those words at a normal circumstances would incite –would tend to incite to immediate violence.

Do you think these words addressed to an ordinary citizen would — might very well be fighting words?

Now if the state court — your argument is that the First Amendment would forbid a state legislature or a state court from saying that these words addressed to a policeman are fighting?

John Wilson Reed:

I think the Constitution requires that the state court or the legislature enacting a law like this require a focus on all the attendant circumstances surrounding the utterance and that they cannot adopt a per se rule that the utterance here is in all circumstances fighting words.

It should be noted that the court below did not have the record before it.

My question was whether you are arguing at the First Amendment would prevent a legislature from saying, we do not see any difference between the policemen and the ordinary citizen.

It will take him all the circumstances but policemen are like citizens.

John Wilson Reed:

Yes, I think the First Amendment would prevent that because the First Amendment prevents the proscription of free speech unless you can point to an identifiable danger from that speech.

And the legislature simply can’t make up identifiable dangers that do not exist.

What if the police court judge or police court jury harbour the issue of fact was tried in the court of initial jurisdiction had made a finding that he found in fact these were fighting words as defined in Chaplinsky again Gooding?

Would that at least remove one prong of your argument here?

John Wilson Reed:

If he decided that they were likely to provoke under the circumstances uttered they were likely to provoke the average police officer to violence, yes.

If that were the findings, I think that is what the finding has to be, not the average citizen but the average police officer.

The ordinance limits itself to the police.

I think it is appropriate to the standards should be those of the police.

Because I don’t think — I think that’s required because the police are not as sensitive to language such as this as of a 60-year-old woman would be or even the average citizen might be.

Warren E. Burger:

Is that not implicit in the totality of this record that that’s the determination of the highest court of Louisiana has made?

John Wilson Reed:

No, I don’t think so Your Honor.

The court below did not have a record before it.

And therefore, I don’t think if they made a narrowing construction, it seems to me that they have to look at the record to see whether the appellant’s speech fit it in into that narrowing construction.

And it is quite clear that at the time this case was originally remanded from this Court, there was an absolute necessity to construe that statute, to limit that statute at some way.

On its face, it’s remarkably similar not nearly as good even as the statute involved in Gooding versus Wilson.

So, since they did not have the record before them, I don’t see how they can possibly have made any finding along that line.

All they had before them was Mr. Justice Powell’s comment in the concurrence of the remand order of June 1972.

Why didn’t they have a record before them?

We have it here.

John Wilson Reed:

The answer to that is I — is that the application for writs was made to Louisiana Supreme Court.

It does not require that the record be sent up.

If the application for writs is granted, the record is sent up.

When the case came back down on remand, the Supreme Court of Louisiana did not read this is as forcing them to grant writs on the case order up the record from the Criminal District Court and consider the whole thing.

That is the only possible explanation.

The Yvonne Martin case that was also remanded was argued twice in the Louisiana Supreme Court.

The first time without the record and then they did subsequently order up the record in that case.

The first time around here, they said writ refused, the judgment is correct or something like that?

John Wilson Reed:

That’s right and the judgment is correct was of that of the Criminal District Court of Appeals which upheld the ordinance very clearly on its face.

Well, they didn’t ask that the record be brought up to them.

But then when the first case first came to us, we have the record.

John Wilson Reed:

Because I complied with the rule of this Court at that time which was either had just been changed or was being changed that required that the record be sent up.

And that’s simply the reason why it was here and —

But on our remand, the record went back to the Police Court, Municipal Court?

John Wilson Reed:

No, it did not go back to the Louisiana Supreme Court.

It maybe still here, I don’t know.

It was my own copy, the copy that I have prepared that I think that I sent up.

Mr. Reed, I want to be sure I understand you.

I have the appendix here.

The evidence is reproduced in the appendix.

So you are saying this was not before the Court on this remand?

John Wilson Reed:

The trial transcript was not before the Court.

Footnote one to the majority’s opinions says, “While we do not have the record here before us, we note from Mr. Justice Powell’s concurrence that here, the appellant uttered the words, “God damn M. F. police.”

I saw that but does that mean that even this portion of the record was not before the Court — this portion being what you have in the appendix, which has some of the testimony of witnesses?

John Wilson Reed:

That was not before the Court.

That was not.

The only thing they have is what we sent out.

John Wilson Reed:

The only they have was my original application for writs back in 1970 or 1971 which I discussed the case, the legal issues but was no transfer of that application for writs.

Unless the Court has any further questions, I am —

Warren E. Burger:

Very well, Mr. Reed.

John Wilson Reed:

Thank you.

Warren E. Burger:

Mr. Garcia.

Servando C. Garcia, III,:

Mr. Chief Justice and may it please the Court.

Today, I represent the City of New Orleans and the matter present before this Honorable Court.

I believe that the main question before this Court today simply stated is whether or not Section 49-7 of the New Orleans Code is unconstitutionally vague and overbroad in violation to First and Fourteenth Amendments.

It is a contention of the City of New Orleans that the ordinance is written clearly delineates the contours of its proscription and obviously does not apply to speech that is protected by the First Amendment but rather applies only to that speech which find to self within the exceptions to the First Amendment.

As early as in 1940 in the case of —

William J. Brennan, Jr.:

Now let’s see, the exceptions.

What do you mean the exceptions?

You mean only the exception for fighting words?

Servando C. Garcia, III,:

The exception for fighting words and the exception for words that’s put forth in Chaplinsky.

William J. Brennan, Jr.:

That’s for fighting words that is tend to incite to an immediate breach of peace.

Servando C. Garcia, III,:

Mr. Justice Brennan, in Chaplinsky, it states the way I read it – I am trying to get an exact cite on it.

William J. Brennan, Jr.:

You mean the lewd and obscene, the profane, the libelous?

Servando C. Garcia, III,:

That’s correct, the lewd, included in this category of the lewd and obscene, the profane, the libelous and the insulting or fighting words.

William J. Brennan, Jr.:

And you say that’s what Chaplinsky stands for?

Servando C. Garcia, III,:

That’s the interpretation that was given to — that I give to Chaplinsky.

William J. Brennan, Jr.:

Gooding did not give that interpretation to it, does it?

Servando C. Garcia, III,:

In the Gooding case, I think—

William J. Brennan, Jr.:

Well it did, did it?

I thought Gooding interpreted that Chaplinsky as limiting in this context a state power to make criminal of the use of utterance which tends to incite to an immediate breach of the peace, didn’t it?

Servando C. Garcia, III,:

That is a correct wording, Your Honor.

William J. Brennan, Jr.:

Alright.

And is that what this case is all about then?

Don’t you stand therefore on whether or not your court has narrowed the statute to such words?

Servando C. Garcia, III,:

That’s not the contention of the City of New Orleans.

William J. Brennan, Jr.:

I see.

Servando C. Garcia, III,:

As I stated in the case of Cantwell and Chaplinsky, the words that were uttered by the majority opinion of this Court.

In that case, Chaplinsky, the Court concerned itself with appellations directed to a police officer as such as the case before this Court today.

In Chaplinsky, the defendant told a marshal, “You are a damn racketeer and a damn fascist.”

In the case at board, the words used by Mrs. Lewis, I think the Court will agree of a much harsher tone in input.

The likelihood of the utterance failing to incite the average person to a breach of the peace is highly improbable in the Mallie Lewis case.

They are going to your interpretation for us requiring a disturbance or inciting of the peace.

We feel that in the Mallie Lewis case, the use of the words G.D.M.F. police certainly are adequate to incite a member of the New Orleans Police Department or to incite him to a disturbance of the peace.

Although, we feel that the appellant’s contention is correct that he should not permit himself to — he should exercise as much restrain upon his emotions so that he does not commit himself to go to this extent to incite a breach of the peace.

We don’t feel that a police officer should be penalized simply because of his position as a police officer.

We feel that he should be judged as an average man — as an average reasonable man just as anyone who is a layman and not a police officer should be judged.

Well, if that’s true, why did it limit it to police officer?

Servando C. Garcia, III,:

I think there was a specific purpose in the minds of the City Council when they — I can’t tell you exactly what it is but it’s my interpretation that this particular ordinance applies to situations where police officers are cursed with profanities by members of the populations.

It is a specific narrow instance of when the revolving statute applies to police officers. Please the Mayor?

I am sorry?

Can you do what?

Please the Mayor of New Orleans, without being funny?

Servando C. Garcia, III,:

Well, that depends on the–

Well, is there any ordinance that protects it from being incurred?

Servando C. Garcia, III,:

The use of obscene words, the prohibition against the use of obscene words.

It applied to everybody?

Servando C. Garcia, III,:

Yes, sir.

Is there any other group that the police single out for this special treatment in New Orleans?

Servando C. Garcia, III,:

Not that I know, no sir.

As to the overbreadth does it applies to detectives?

Servando C. Garcia, III,:

Does overbreadth apply to detectives?

I say on the question of overbreadth, do this ordinance apply to detectives, member of the city police?

Servando C. Garcia, III,:

Yes, sir.

So if a detective walks down a street and somebody calls him M.F., that’s it?

Servando C. Garcia, III,:

That’s correct, as long as he is a member of the New Orleans Police Department.

And if he and the Mayor walking side by side, he could be — he’s been hurt but the Mayor hasn’t?

Servando C. Garcia, III,:

If they would direct the language to both individuals?

Yes

Servando C. Garcia, III,:

If they were to direct the language to both individuals.

The language directed to the Mayor could be prosecuted under separate ordinance, not the reviling ordinance as brought forth before this Court here.

May I ask why it is special for the police?

Servando C. Garcia, III,:

I think there’s a need for it.

It is a contention of the City of New Orleans that and it has been my experience as an Assistant City Attorney that this goes on quite often that citizens apparently for what reason, I don’t know.

I feel that it is permissible or they can get away with reviling in New Orleans Police Officers and I am sure officers of many other cities around the United States.

I think this presents distinct problems —

How many of these — while you were prosecuting — how many of these cases do you have a week?

Servando C. Garcia, III,:

Approximately 50% of our case is in a Municipal Court concern himself with reviling a police where a police officer confronts —

50%.

Servando C. Garcia, III,:

I am approximating and I don’t stand on the accuracy of that figure but this is — I think it would be close.

This is in the average confrontation where a police officer stops not — maybe not an upright citizen but an individual who is suspected of committing a crime on the streets of New Orleans.

The attitude of the citizenry of New Orleans has changed to the effect that they apparently have been responding with these type of abusive words to the New Orleans Policemen.

It’s been brought forth by many members in New Orleans Police Department where I know —

I understand the statute has been on vote for 70 years.

Servando C. Garcia, III,:

That’s correct.

So what about all of this new business you are talking about, it needed its way seven years ago.

Servando C. Garcia, III,:

What? I am misunderstanding your question.

What new business, this apparently — this ordinance is initially was written apparently for that very purpose.

But my comment is that it has become an exaggerated.

The instances have exaggerated.

Well it could be that the police can arrest them for anything else so they arrest them for this?

Servando C. Garcia, III,:

I think if that argument were true that the police could find more serious violations with which to arrest someone if they really wanted to inconvenience them or rather to penalize them for no reason whatsoever.

So rather to do that, they get them on this one?

Servando C. Garcia, III,:

Well I’m saying, if that were their purpose, I don’t believe that that is their purpose.

Well if they got 50% of them that’s a pretty good percentage.

Servando C. Garcia, III,:

I —

Mr. Garcia, I didn’t understand you to say that 50% of all the cases in the Police Court in New Orleans, Louisiana are brought under this ordinance.

I don’t understood you to say rather that in your observation just estimating that in about half of cases in that court involves circumstances in which there was some reviling of the police?

Servando C. Garcia, III,:

That’s correct.

Is that it?

Servando C. Garcia, III,:

In a lot of instances, not solely reviling the police violations that I’m talking about.

A lot of instances they are charged with multiple violations —

How many prosecutions under this ordinance would you guess again?

Servando C. Garcia, III,:

No, I wouldn’t say.

Well, a lot of times, this particular ordinance is now process due to the prosecution of a more serious one.

For instance, if an arrest is effective for two or three violations and one of them we feel we have a better case I will now process this one.

I am guessing with the majority of cases.

I would have to say that the overriding percentage of cases that come before the City Court in New Orleans given each ordinance a percentage of the reviling of the police ordinance has a much greater percentage than that of any other ordinance.

It does.

Servando C. Garcia, III,:

Yes, Your Honor.

It does.

So, the answer is still the same?

Yes, well, I misunderstood you.

My brother Marshall understood you exactly correctly?

Servando C. Garcia, III,:

It does, yes sir.

What’s the volume?

Servando C. Garcia, III,:

The volume of cases per day?

I would have to say anywhere from 30 to 35 per day for Section (b).

We have four sections.

15 to 20 of them are prosecutions out of this ordinance?

Servando C. Garcia, III,:

Of course, I am not — I would have to say that approximately 15% to 20% of them at least and up to 50% on some days.

I am approximating on the figures but the majority of them as opposed to other classifications of crimes or for reviling the police.

And I don’t know whether this Court is having difficulty determining what the reason is for this.

But it’s been my experience that in an average confrontation between citizens of New Orleans and the New Orleans Police Department, being a prosecutor for four years has almost always resulted in the use of obscene language by its citizens to the members of the —

Relationship that’s strained between the police and the —

Servando C. Garcia, III,:

It’s that hectic between the New Orleans Police and the citizens on the streets, yes sir.

Warren E. Burger:

Is it possible that one reason why the City Council enacted a special ordinance for a policeman and none for the mayor is that the police were out on the street exposed to this and the mayor is not?

Servando C. Garcia, III,:

Absolutely.

Warren E. Burger:

The same reason, they let the police carry guns but the mayor probably does not.

Servando C. Garcia, III,:

Absolutely, the police officers of course are on the street daily and are subjected to these abuses daily as I stated.

The mayor of course, probably rarely if ever comes into contact with this type of abuse.

And if so, there is an ordinance that would protect the mayor but I think that that’s a reason for this specific ordinance relative to the New Orleans Police Officers.

The dissenting opinion said and pointed out in this case that under the terms of the ordinance, this mother, Mrs. Lewis could have been prosecuted.

The mother is punishable under the ordinance and I’m reading for using the disrespectful language in their own living room as well as in the street and not in the presence even of a police.

And that in reading the court opinion, I can’t find any disagreement with that construction of the ordinance, would that be —

Servando C. Garcia, III,:

Well, although there may be no disagreement with that construction —

Or is there — have I missed something first of all in the court opinion?

Servando C. Garcia, III,:

No, I don’t believe you have.

But what I’m saying is that that may very well be true that this type of imaginative situation could occur.

But under the overbreadth doctrine which was quoted in the index, they have certain guidelines which are to be used and scrutinized in the overbreadth of — the overbreadth of certain ordinances.

And the first one of this is the degree of overbreadth and it states in the Law Review articles specifically a law on not to be struck down for overbreadth unless it lands itself to a substantial number of impermissible applications.

In this instance, I certainly don’t think that this would happen at all.

And if so, it certainly wouldn’t happen in a substantial number of instances.

Where are these overbreadth guidelines?

Is this something from the New Orleans Police Department or guidelines?

Servando C. Garcia, III,:

No sir, it’s the Harvard Law Review.

[Laughter] They read that in New Orleans?

Servando C. Garcia, III,:

Very seldom.

What page is that?

Servando C. Garcia, III,:

It’s cited in the doctrine itself, we don’t have a copy of but it’s cited in the appendix.

You are referring this to the argument that you have read yourself?

Servando C. Garcia, III,:

Yes sir, I have read it.

Oh! You read it.

Servando C. Garcia, III,:

I have a copy of it.

And why doesn’t it — do you have anything in the Yale Law Review why you have it?

Warren E. Burger:

The language that Justice Stewart has drawn into your attention and I took it as the hyperbole of that the extravagant statement that sometimes comes in dissenting opinions, which the majority doesn’t take the trouble to notice.

Servando C. Garcia, III,:

Also in a recent case which was decided by this Court and Mr. Justice Marshall stated in the majority opinion that condemned to the use of words it can never expect — we can never expect mathematical certainty from our language and I think this is —

Well, the point is that this case was here once before.

Servando C. Garcia, III,:

That’s correct.

And it was remanded to the Supreme Court of Louisiana to reconsider in the light of Gooding and with an invitation to narrow it, the statute, to construe it in a narrow way.

And as I read the court’s opinion, it not only declined that invitation but left it just as open as the dissenting opinion said it is.

And he uses another example of the fellow on the balcony looking down at the traffic policeman trying to regulate the traffic in the French quarter and says, “Look at that stupid cop down there, making an ass out of himself” or whatever it is and then he is guilty of — he is clearly violating this ordinance.

And there’s — particularly with the invitation before the highest court of your state to narrow this ordinance I would have thought they might have take an issue with the dissenter’s characterization of the ordinance as they had not agreed with it.

Servando C. Garcia, III,:

Well I would certainly — the only thing I can say about the Louisiana Supreme Court’s decision is what I’ve read myself is substantially the same thing as you so I can’t add to their reasoning in that decision.

Warren E. Burger:

Very well, if you have anything further, you have one minute left Mr. Reed.

John Wilson Reed:

Unless the Court has any questions Your Honor, I have nothing further to say.

Warren E. Burger:

Thank you very much gentlemen.

The case is submitted.