June 26, 1972
CITY OF NEW ORLEANS
Appeal from Sup. Ct. La.
[ 408 U.S. Page 913]
Motion for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of Gooding v. Wilson, 405 U.S. 518 (1972).
MR. JUSTICE POWELL, concurring in the result.
Under Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the issue in a case of this kind is whether "fighting words" were used. Here a police officer, while in the performance of his duty, was called "g-- d--- m///--- f///--" police.
If these words had been addressed by one citizen to another, face to face and in a hostile manner, I would have no doubt that they would be "fighting words." But the situation may be different where such words are addressed to a police officer trained to exercise a higher degree of restraint than the average citizen. See Model Penal Code § 250.1, Comments 14 (Tent. Draft No. 13, 1961).
[ 408 U.S. Page 914]
I see no genuine overbreadth problem in this case for the reasons stated in my dissenting opinion in Rosenfeld v. New Jersey, ante, p. 903.
I would remand for reconsideration only in light of Chaplinsky.
[For dissenting opinion of MR. CHIEF JUSTICE BURGER, see ante, p. 902.]
[For dissenting opinion of MR. JUSTICE REHNQUIST, see ante, p. 909.]
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