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The petitioner denounced all religion on a street and called the government of Rochester Fascists. He was convicted under a state law stating that 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.”
Derisive and annoying words can be prohibited by a state law only when they have a characteristic of plainly tending to excite the addressee to a breach of the peace.
The petitioner, a Jehovah’s Witness distributed literature on the streets of Rochester, New Hampshire. His act attracted a crowd by denouncing all religion as a “racket.” A disturbance erupted and a police officer escorted the petitioner away. The petitioner encountered the City Marshal and called him “a damned Fascist” adding that “the government of Rochester are Fascists.” The petitioner was convicted under a state law.
Does a state law stating that 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” violate the Constitution?
No, because the statute is 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. The application of the statute to the petitioner does not substantially or unreasonably impinges upon the privilege of free speech.
As the highest court of New Hampshire held, the statute at issue was enacted with the purpose of preserving the public peace and no words are forbidden except such as have direct tendency to cause acts of violence by person to whom the remark is addressed. The statute 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.