                                      Nay 11, 1988




    Honorable  David H. Cain                         Opinion   No.    m-900
    Texas House of Representatives
    P. 0. BOX 2910                                   Re:     Whether the use of
    Austin, Texas   78769                            "abusive,   indecent,    pro-
                                                     fane or vulgar"     language
                                                     in a public place consti-
                                                     tutes an immediate    breach
                                                     of the peace (RQ-1378)

    Dear    Representative       Cain:

            Section     42.01   of the   Penal   Code   provides     in part    that

                      (a) A   person   commits an        offense      if   he
P                 intentionally    or knowingly:

                          (1) uses abusive,  indecent, profane,   or
                      vulgar language in a public place, f&
                      the lancuaue bv its verv utterance    tends
                      to incite an immediate breach of the
                      peace[.]    (Emphasis added.)

    Penal    Code     542.01(a)(l).

            you    ask the   following    questions:

                      (1) Does uttering   abusive,   indecent,   pro-
                  fane, or vulgar    language in     a public   place
                  constitute   an   immediate      'breach   of   the
                  peace?'

                     (2) How is 'breach          of the peace'       defined
                  in relation to Article         42.01(a)(l)?

    In order for this provision    to withstand   scrutiny under     the
P   broad guarantees   for freedom   of expression   and due    process
    of law   in the   United States   Constitution,    the  utterances
    prohibited  can &      include "fighting words.11    Chanlinskv   v.
    New Hamnshire,   315 U.S. 568 (1942).    See Goodins v.     Wilson,
F




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Honorable     David   H. Cain   - Page   2   (JM-900)




405 U.S.     518 (1972) and Acker v. Texas   430 U.S.        962    (1977).
See also     Attorney General Opinion MW-1'(1979).l
                                                                                ?
      Whether particular    words   are        nfighting   words"     is   a
matter of fact.    Chanlinsky,   sunra,        at 573.

            The test is what     men of common    intelligence
            would understand     would   be words   likely    to
            cause an   average addressee     to   fight. . . .
            Derisive and annoying words      can be taken     as
            coming within    the   purview   of   the   statute
            . . . only when they have this characteristic
            of plainly tending to excite the addressee        to
            a breach of the peace.

See Goodingv.      Wilson, sunra, at 522, quoting with            appro;;;
the Supreme Court of        New Hampshire,     18 A.2d 754, 758,
(1941).    See aenerallv,     Cohen v. California,       403 U.S. 15, 20
(1971): Bachellar     V.    a
                           M rv land,  397  U.S.   564,  567   (1970); and
Goodinq,   sunra.      The  "line    between   speech    unconditionally
guaranteed   and speech which        may legitimately     be    regulated,
suppressed,     or   punished     is    finely   drawn,"     Sneiser     v.
Randall,   357 U.S. 513, 525 (1958).

      Speech punishable      under the     Penal Code provision        does
not   include    language     merely    harsh    and    insulting,      see
Goodinq, a         at   525, and     it should    not include      speech,
actual    or    symbolic,      that     is     only     l'inappropriate,"
"naughty,"    "disgusting,"' "repulsive,"        wtactless,"      llgross, I1
or "appalling."       Annot., 2 A.L.R.4th      1331.    Conviction    under
a statute specifying       a "breach    of the peace" as an        element
of the offense must be based on jury instructions                including
an admonition    that proof      of "actual or threatened         violence
is essential."        Woods v. State       213  S.W.2d   685,  687    (Tex.
Crim. App. 1948).       In other words      anything    short of the use
of "fighting     words" does      not co;lstitute     a breach     of   the
statute.     &R  Jimmerson    v. State      561 S.W.2d 5 (Tex.        Crim.
App. 1978).     Speech is protected        against punishment       unless
"shown likely to       produce a clear and present           danger of     a
serious    substantive      evil   that    rises    far   above     public
inconvenience,      annoyance,       or  unrest."        Terminello       v.
Chicaao,   337 U.S. 1, 4 (1949).



    1. This statute does not concern speech legally        obscene
under the standards   provided   by the  United   States   Supreme
Court in Wilier   v. California,    418 U.S.    915 (1973).     See
Snears v. State, 337 So.Zd 977 (Fla. 1976).




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    Honorable     David   H. Cain     - Page     3   (JR-900)




          Finally, because- the application       of the   statute    may
    turn largely on the factual setting of the speech at           issue,
-   the test is whether,     in a particular     instance,   an  average
    person would be inured to     respond by fighting.       An  average
    person is    not someone   who is    overly sensitive     or   overly
    inured to the speech in question.       Cohen. suora and     Houston
    v. Hill, 482 U.S. --,      96 L.Ed.2d 398 (1987), quoting        from
    a concurring    opinion   of Justice    Powell    in Lewis   v.   New
    Orle ans, 415 U.S. 130, 135 (1974).

                                     SUMMARY

                    Article     42.01(a)(l)    of   the   Penal    Code
                applies only to speech        which as a matter       of
                fact    constitutes     "fighting    words."      As   a
                matter of     law, the    statute does      not   reach
                speech that      merely  causes    public    inconven-
                ience,    annoyance,      or   unrest.       "Fighting
                wordsl' are words which would likely cause           an
                average     addressee    to   fight.     An   "average
                addressee"      is not    .someone   either     overly
                sensitive    or overly inured      to the speech      in
                question.




                                                     JIM      MATTOX
                                                     Attorney  General   of Texas

    MARYEELLER
    First Assistant       Attorney     General

    Lou MCCREARY
    Executive  Assistant      Attorney     General

    JUDGE ZOLLIE STEAELEY
    Special Assistant  Attorney          General

    RICK GILPIN
    Chairman,  Opinion      Committee

    Prepared by Don Bustion
    Assistant Attorney General




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