Request By:
Hon. J. Clay McKnight
Scott County Attorney
Scott County Courthouse
P.O. Box 582
Georgetown, Kentucky 40324
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
You have inquired as to the constitutional validity of KRS 525.070 in light of U.S. v. Sturgill, 563 F.2d 307 (6th Cir. 1977), which held that this statute must fail as a vehicle for prosecution in federal courts under the Federal Assimilative Crimes Act. This decision was based upon Gooding v. Wilson, 405 U.S. 518 (1972), a case which questioned the constitutional validity of a Georgia statute (formerly Section 26-6303) very similar to KRS 525.070. * In the Gooding case the Supreme Court stated that ". . . the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression . . ." Id. at 522. Because the Sixth Circuit was unable to find any authoritative decision of the Kentucky courts which had narrowed the broad language of KRS 525.070, it determined that it was bound by the Gooding v. Wilson decision which had declared the Georgia statute unconstitutional.
We find the following language in Gooding v. Wilson at p. 520:
[Georgia Code Ann] Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar and offensive, that is protected by the first and fourteenth amendments, . . . . [citations omitted]
Furthermore, the Supreme Court determined that only the Georgia courts can supply the requisite construction of the statute since the Supreme Court lacks jurisdiction to authoritatively construe state legislation, and since there had been no meaningful attempt to limit or properly define the terms of the Georgia statute so as to limit its application, as in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words), to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed," the Court was compelled to affirm the district court's decision and declare the statute unconstitutionally broad.
Because of the absence of Kentucky appellate interpretation as to the scope and meaning of KRS 525.070, the holding in Sturgill indicates that the statute is overbroad and vague in violation of the first amendment freedom of speech protections. However, the courts of Kentucky are not bound by the Sturgill decision. See Reams v. Commonwealth, Ky., 522 S.W.2d 853, 854 (1975).
If the statute were to be interpreted narrowly (as the New Hampshire statute in the Chaplinsky case was interpreted), then KRS 525.070 would ultimately survive constitutional muster.
. . . Indeed, the language used by the Chaplinsky Court to describe words properly subject to regulation bears a striking resemblance to that of the Georgia statute, which was enacted many, many years before Chaplinsky was decided. See 315 US., at 573, 86 L. Ed. 1036. And if the early Georgia cases cited by the majority establish any proposition, it is that the statute, as its language so clearly indicates, is aimed at preventing precisely that type of personal, face-to-face, abusive and insulting language likely to provoke a violent retaliation-self-help, as we euphemistically call it-that the Chaplinsky case recognized could be validly prohibited. The facts of the case now before the Court demonstrate that the Georgia statute is serving that valid and entirely proper purpose. There is no persuasive reason to wipe the statute from the books, unless we want to encourage victims of such verbal assaults to seek their own private redress. Gooding v. Wilson, supra at 529-530 (Burger, C. J., dissenting).
The interpretation of KRS 525.070 by a Kentucky appellate court will be controlling as to the ultimate determination of the statute's constitutionality. If the statute is narrowly construed so as to apply only to a constitutionally unprotected class of words -- "fighting words," those which by their utterance inflict injury or tend to incite an immediate breach of the peace, then a conviction under the statute would in all probability withstand a constitutional attack.
Footnotes
Footnotes
* KRS 525.070 provides in pertinent part:
(1) A person is guilty of harassment when with intent to harass, annoy or alarm another person he:
* * *
(b) In a public place makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present. . . .
* * *
(b) In a public place makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present. . . .
(b) In a public place makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present. . . .