JUSTICE BRENNAN delivered the opinion of the Court.
This case presents the question whether a municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his or her duties is unconstitutionally overbroad under the First Amendment.
Appellee Raymond Wayne Hill is a lifelong resident of Houston, Texas. At the time this lawsuit began, he worked as a paralegal and as executive director of the Houston Human Rights League. A member of the board of the Gay Political Caucus, which he helped found in 1975, Hill was also affiliated with a Houston radio station, and had carried city and county press passes since 1975. He lived in Montrose, a "diverse and eclectic neighborhood" that is the center of gay political and social life in Houston. App. 26-27.
The incident that sparked this lawsuit occurred in the Montrose area on February 14, 1982. Hill observed a friend, Charles Hill, intentionally stopping traffic on a busy street, evidently to enable a vehicle to enter traffic. Two Houston police officers, one of whom was named Kelley, approached Charles and began speaking with him. According to the District Court, "shortly thereafter" Hill began shouting at the officers "in an admitted attempt to divert Kelley's attention from Charles Hill." App. to Juris. Statement B-2.
Following his acquittal in the Charles Hill incident, Hill brought the suit in the Federal District Court for the Southern District of Texas, seeking (1) a declaratory judgment that § 34-11(a) was unconstitutional both on its face and as it had been applied to him, (2) a permanent injunction against any attempt to enforce the ordinance, (3) an order expunging the records of his arrests under the ordinance, and (4) damages and attorney's fees under 42 U. S. C. §§ 1983 and 1988.
At trial, Hill introduced records provided by the city regarding both the frequency with which arrests had been made for violation of the ordinance and the type of conduct with which those arrested had been charged. He also introduced evidence and testimony concerning the arrests of several reporters under the ordinance. Finally, Hill introduced evidence regarding his own experience with the ordinance, under which he has been arrested four times since 1975, but never convicted.
The District Court held that Hill's evidence did not demonstrate that the ordinance had been unconstitutionally applied.
The court also held that the statute was not overbroad because "the ordinance does not, at least facially, proscribe speech or conduct which is protected by the First Amendment." Id., at B-12.
A panel of the Court of Appeals reversed. 764 F.2d 1156 (CA5 1985). The city's suggestion for rehearing en banc was granted, and the Court of Appeals, by a vote of 8-7, upheld the judgment of the panel. 789 F.2d 1103 (1986). The Court of Appeals agreed with the District Court's conclusion that the ordinance was not vague, and that it "plainly encompasse[d] mere verbal as well as physical conduct." Id., at 1109. Applying the standard established in Broadrick v. Oklahoma, 413 U.S. 601 (1973), however, the Court of Appeals concluded that the ordinance was substantially
The Court of Appeals also reviewed the evidence of the unconstitutional application of the ordinance which Hill had introduced at trial. The court did not disturb the District Court's ruling that the statute had not been unconstitutionally applied to Hill or to the reporters. It did conclude, however, that other evidence not mentioned by the District Court revealed "a realistic danger of, and a substantial potential for, the unconstitutional application of the ordinance." Ibid. This evidence showed that the ordinance "is officially regarded as penalizing the mere interruption of a policeman while in the line of duty," id., at 1109, and has been employed to make arrests for, inter alia, "arguing," "[t]alking," "[i]nterfering," "[f]ailing to remain quiet," "[r]efusing to remain silent," "[v]erbal abuse," "[c]ursing," "[v]erbally yelling," and "[t]alking loudly, [w]alking through scene." Id., at 1113-1114.
The city appealed, claiming that the Court of Appeals erred in holding the ordinance facially overbroad and in not abstaining until the ordinance had been construed by the
The elements of First Amendment overbreadth analysis are familiar. Only a statute that is substantially overbroad may be invalidated on its face. New York v. Ferber, 458 U.S. 747, 769 (1982); Broadrick v. Oklahoma, supra. "We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application . . . ." Id., at 630 (BRENNAN, J., dissenting). Instead, "[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982);
The city's principal argument is that the ordinance does not inhibit the exposition of ideas, and that it bans "core criminal conduct" not protected by the First Amendment. Brief for Appellant 12. In its view, the application of the ordinance to Hill illustrates that the police employ it only to prohibit such conduct, and not "as a subterfuge to control or dissuade free expression." Ibid. Since the ordinance is "contentneutral," and since there is no evidence that the city has applied the ordinance to chill particular speakers or ideas, the city concludes that the ordinance is not substantially overbroad.
Second, contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. "Speech is often provocative and challenging. . . . [But it] is nevertheless protected against censorship or 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." Terminiello v. Chicago, 337 U.S. 1, 4 (1949). In Lewis v. City of New Orleans, 415 U.S. 130 (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant's husband to produce his driver's license. Appellant was convicted under a municipal ordinance that made it a crime " `for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.' " Id., at 132 (citation omitted). We vacated the conviction and invalidated the ordinance as facially overbroad. Critical to our decision was the fact that the ordinance "punishe[d] only spoken words" and was not limited in scope to fighting words that " `by their very utterance
The Houston ordinance is much more sweeping than the municipal ordinance struck down in Lewis. It is not limited to fighting words nor even to obscene or opprobrious language, but prohibits speech that "in any manner . . . interrupt[s]" an officer.
The city further suggests that its ordinance is comparable to the disorderly conduct statute upheld against a facial challenge in Colten v. Kentucky, 407 U.S. 104 (1972).
415 U. S., at 135-136, and n.
Houston's ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance's plain language is admittedly violated scores of times daily, App. 77, yet only some individuals — those chosen by the police
The city has also urged us not to reach the merits of Hill's constitutional challenge, but rather to abstain for reasons related to those underlying our decision in Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). In its view, there are certain limiting constructions readily available to the state courts that would eliminate the ordinance's overbreadth.
Abstention is, of course, the exception and not the rule, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976), and we have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendent.
Even if this case did not involve a facial challenge under the First Amendment, we would find abstention inappropriate. In cases involving a facial challenge to a statute, the pivotal question in determining whether abstention is appropriate is whether the statute is "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question." Harman v. Forssenius, 380 U.S. 528, 534-535 (1965); see also Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984) (same). If the statute is not obviously susceptible of a limiting construction, then even if the statute has "never [been] interpreted by a state tribunal . . . it is the duty of the federal court to exercise its properly invoked jurisdiction." Harman, supra, at 535; see, e. g., Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971) ("Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim"); Zwickler v. Koota, supra, at 250-251, and n. 14 (citing cases).
This ordinance is not susceptible to a limiting construction because, as both courts below agreed, its language is plain and its meaning unambiguous. Its constitutionality cannot "turn upon a choice between one or several alternative meanings." Baggett v. Bullitt, 377 U.S. 360, 378 (1964); cf. Babbitt v. Farm Workers, 442 U.S. 289, 308 (1979). Nor can the ordinance be limited by severing discrete unconstitutional subsections from the rest. For example, it cannot be limited to "core criminal conduct" such as physical assaults or fighting words because those applications are pre-empted by state law. See supra, at 460-461, and n. 10. The enforceable portion of this ordinance is a general prohibition of speech that "simply has no core" of constitutionally unprotected expression to which it might be limited. Smith v.
The city relies heavily on its claim that the state courts have not had an opportunity to construe the statute. Even if true, that factor would not in itself be controlling. As stated above, when a statute is not ambiguous, there is no need to abstain even if state courts have never interpreted the statute. Harman, supra, at 534. For example, we have declined to abstain from deciding a facial challenge to a state statute when the suit was filed in federal court just four days after the statute took effect. Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985). But in any event, the city's claim that state courts have not had an opportunity to construe the statute is misleading. Only the state appellate courts appear to have lacked this opportunity. It is undisputed that Houston's Municipal Courts, which have been courts of
The possibility of certification does not change our analysis.
Today's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are
It is so ordered.
JUSTICE BLACKMUN, concurring.
I join the Court's opinion and its judgment except that I do not agree with any implication — if one exists — see ante, at 461-462, that Gooding v. Wilson, 405 U.S. 518 (1972), and Lewis v. City of New Orleans, 415 U.S. 130 (1974), are good law in the context of their facts, or that they lend any real support to the judgment under review in this case. I dissented in Gooding and Lewis, see 405 U. S., at 534, and 415 U. S., at 136, in the conviction that the legislation there under consideration was related to "fighting words," within the teaching and reach of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). I am still of that view, and I therefore disassociate myself from any possible suggestion that those cases are controlling authority here. The Houston ordinance before us, however, as is evident from its very language, and as the Court demonstrates, ante, at 462-463, 465, is far more broad and more offensive to First Amendment values and is susceptible of regular application to protected expression.
JUSTICE SCALIA, concurring in the judgment.
For the reasons stated by JUSTICE POWELL in Part II of his opinion, I agree that abstention would not be appropriate in this case. Because I do not believe that the Houston ordinance is reasonably susceptible of a limiting construction that would avoid the constitutional question posed in this case, I agree with the Court that certification would also be inappropriate. On the merits, I agree with the views expressed by
JUSTICE POWELL, with whom JUSTICE O'CONNOR joins, and with whom THE CHIEF JUSTICE joins as to Parts I and II, and JUSTICE SCALIA joins as to Parts II and III, concurring in the judgment in part and dissenting in part.
The city of Houston has made it unlawful "for any person to . . . in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty." Code of Ordinances, City of Houston, Texas § 34-11(a) (1984). The Court today concludes that this ordinance violates the First and Fourteenth Amendments of the Constitution. In my view, the Court should not have reached the merits of the constitutional claims, but instead should have certified a question to the Texas Court of Criminal Appeals. I also disagree with the Court's reasons for declining to abstain under the principle of Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). Finally, although I agree that the ordinance as interpreted by the Court violates the Fourteenth Amendment, I write separately because I cannot join the Court's reasoning.
This case involves a challenge to an ordinance designed to prevent interference with police officers in the performance of their duties. Constitutional analysis should not proceed until we determine the precise meaning of the ordinance in question. But this problem does not detain the Court, because it concludes that interpretation of the ordinance presents "no uncertain question of state law." Ante, at 471. On the contrary, I think there is a serious question as to the meaning of the ordinance.
The challenged ordinance does not contain an explicit intent requirement. Both parties acknowledge, however, that the Texas Penal Code requires imputation of some culpability requirement. See Brief for Appellant 28-30; Brief for Appellee
This interpretation would change the constitutional questions in two ways: it would narrow substantially the scope of the ordinance, and possibly resolve the overbreadth question; it also would make the language of the ordinance more precise, and possibly satisfy the concern as to vagueness. At the least, such an interpretation would narrow the focus of the constitutional question and obviate the need for the Court's broad statements regarding First Amendment protections of speech directed at police officers. It is not this Court's role, however, to place an interpretive gloss on the words the Houston City Council has chosen. The ordinance is not a federal law, and we do not have the power " `authoritatively to construe' " it. Gooding v. Wilson, 405 U.S. 518, 520 (1972) (quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971)).
But we are not without means of obtaining an authoritative construction. Last year the Texas voters amended the Texas Constitution to provide that the "court of criminal appeals
In my view, the ambiguity of the ordinance, coupled with the seriousness of invalidating a state law, requires that we ascertain what the ordinance means before we address appellee's constitutional claims. I therefore would vacate the judgment below and remand with instructions to certify the case to the Texas Court of Criminal Appeals to allow it to interpret the intent requirement of this ordinance. Accordingly, I dissent.
The Court concludes, however, that the case properly is before us, and so I address the remaining issues presented.
Pullman abstention generally is appropriate when determination of an unsettled question of state law by a state court could avoid the need for decision of a substantial question of federal constitutional law. Although I agree with the Court that Pullman abstention is inappropriate in this case, I write separately because my reasons are somewhat different from those expressed by the Court.
Pullman abstention is inappropriate unless the state courts "provid[e] the parties with adequate means to adjudicate the controverted state law issue." Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071, 1144 (1974). See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4242, p. 468 (1978). Cf. Railroad Comm'n v. Pullman Co., 312 U. S., at 501 (abstaining because the "law of Texas appears to furnish easy and ample means for determining
Aside from the barriers created by Texas procedure, the late stage at which the city of Houston raised this issue weighs heavily against abstention. Houston first suggested that abstention was appropriate after the Court of Appeals published its panel opinion invalidating the ordinance. As
I agree with the Court's conclusion that the ordinance violates the Fourteenth Amendment, but do not join the Court's reasoning.
The Court finds that the ordinance "deals not with core criminal conduct, but with speech." Ante, at 460. This view of the ordinance draws a distinction where none exists. The terms of the ordinance — "oppose, molest, abuse or interrupt any policeman in the execution of his duty" — include general words that can apply as fully to conduct as to speech. It is in this respect that Lewis v. City of New Orleans, 415 U.S. 130 (1974), is clearly distinguishable. In that case the New Orleans ordinance made it a breach of the peace for:
On its face, the New Orleans ordinance criminalizes only the use of language. JUSTICE BRENNAN, speaking for the Court in Lewis, explicitly noted this, stating that the ordinance "punishe[d] only spoken words." Id., at 134. By contrast, the ordinance presented in this case could be applied to activity that involves no element of speech or communication. For example, the ordinance evidently would punish individuals
I do agree that the ordinance can be applied to speech in some cases. And I also agree that the First Amendment protects a good deal of speech that may be directed at police officers. On occasion this may include verbal criticism, but I question the implication of the Court's opinion that the First Amendment generally protects verbal "challenge[s] directed at police officers," ante, at 461. A "challenge" often takes the form of opposition or interruption of performance of duty.
Despite the concerns expressed above, I nevertheless agree that the ambiguous terms of this ordinance "confe[r] on police a virtually unrestrained power to arrest and charge persons with a violation. . . . The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident." Lewis v. City of New Orleans, supra, at 135-136 (POWELL, J., concurring in result). No Texas court has placed a limiting construction on the ordinance. Also, it is clear that Houston has made no effort to curtail the wide discretion of police officers under the present ordinance. The record contains a sampling of complaints filed under the ordinance in 1981 and 1982. People have been charged with such crimes as "Failure to remain silent and stationary," "Remaining," "Refusing to remain silent," and "Talking." 789 F.2d 1103, 1113-1114 (CA5 1986) (en banc). Although some of these incidents may have involved unprotected conduct, the vagueness of these charges suggests that, with respect to this ordinance, Houston officials have not been acting with proper sensitivity to the constitutional rights of their citizens. When government protects society's interests in a manner that restricts some speech the law must be framed more precisely than the ordinance before us. Accordingly, I agree with the Court that the Houston ordinance is unconstitutional.
In view of the difficulty of drafting precise language that never restrains speech and yet serves the public interest, the attempts of States and municipalities to draft laws of this type should be accorded some leeway. I am convinced, however, that the Houston ordinance is too vague to comport with the First and Fourteenth Amendments. As I explained supra, at 473-474, it should be possible for the present ordinance to be reframed in a way that would limit the present broad discretion of officers and at the same time protect substantially the city's legitimate interests. For example, the ordinance could make clear that it applies to speech only if the purpose of the speech were to interfere with the performance by a police officer of his lawful duties. In this situation, the difficulties of drafting precisely should not justify upholding this ordinance.
Although I believe that the proper course is for the Court to vacate the judgment of the Court of Appeals, I "bo[w] to the Court's decision that the case is properly before us," Brown Shoe Co. v. United States, 370 U.S. 294, 374 (1962) (Harlan, J., concurring in part and dissenting in part), and concur in the judgment of affirmance.
CHIEF JUSTICE REHNQUIST, dissenting.
I join Parts I and II of JUSTICE POWELL's opinion concurring in the judgment in part and dissenting in part. I do not
The testimony of Hill and Kelley is consistent in other ways ignored by the District Court. Both agree, for example, that Charles attempted to leave after an initial conversation with the officers, and that Kelley then grabbed Charles by the arm, turned him around, and told him not to walk away. Id., at 14, 57. According to Hill, Charles, who "has a nervous tic," then went "into these spasms," which prompted one of the officers to "screa[m]" at Charles "Are you making fun of me?" Id., at 14-15. Kelley stated that Charles was "twitching" in an "erratic and strange" manner, and that Kelley "didn't know if [Charles] was about to have a seizure or if he was being insolent or what." Id., at 56-57.
At this point, however, the testimony substantially diverges. Kelley states that Hill then "interrupte[d]" him with the verbal challenge quoted in text, and that a crowd was beginning to form. Id., at 57-58, 61, 68-69. Hill testified that both officers grabbed Charles, placed him up against a wall, and threatened to hit him with a large flashlight. Id., at 14. Only then, according to Hill, did he call out: "[T]he kid has done nothing wrong. If you want to pick on somebody, pick on me." Id., at 16. We note the applicability of JUSTICE POWELL's observation that there is a "possibility of abuse" where convictions under an ordinance frequently turn on the resolution of a "direct conflict of testimony as to `who said what.' " Lewis v. City of New Orleans, 415 U.S. 130, 135, n. (1974) (POWELL, J., concurring in result). See infra, at 466.
In 1977, after observing vice-squad cars parked near a bookstore, Hill entered the store and announced on the public address system that police officers were present and that patrons should prepare to show their identification. The patrons promptly left the store, thereby frustrating the investigation. Hill was arrested for interfering with the investigation, but the case was subsequently dismissed.
Finally, on October 3, 1982, eight months after the lawsuit began, Hill was arrested for refusing to leave the immediate area of a car with an unknown and unconscious person inside. The arresting officers failed to appear in Municipal Court, however, so the charge against Hill was dismissed.
This argument is without merit. An independent review of the record is appropriate where the activity in question is arguably protected by the Constitution. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915-916, n. 50 (1982). Moreover, the Court of Appeals accepted as "not challenged on appeal" the District Court's finding that the ordinance had not been unconstitutionally applied to Hill or to the reporters, 789 F. 2d, at 1107, 1110. The disagreement between the lower courts was therefore limited to a question of law — whether the ordinance on its face was substantially overbroad. In concluding that the ordinance was overbroad, the Court of Appeals did not err in reviewing evidence ignored by the District Court concerning the application of the ordinance, and in concluding that this evidence demonstrated a significant potential for unconstitutional application of the ordinance.
The question whether the ordinance has been unconstitutionally applied to Hill is neither presented by this appeal nor essential to our decision, and we do not address it.
"Section 22.01. Assault.
"(a) A person commits an offense if the person:
"(1) intentionally, knowingly, or recklessly causes bodily injury to another including the person's spouse; or
"(2) intentionally or knowingly threatens another with imminent bodily injury including the person's spouse; or
"(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative."
"Section 22.02. Aggravated Assault.
"(a) A person commits an offense if he commits assault as defined in Section 22.01 of this code and he:
"(1) causes serious bodily injury to another;
"(2) causes bodily injury to a peace officer in the lawful discharge of official duty when he knows or has been informed the person is a peace officer; or
"(3) uses a deadly weapon.
"(b) The actor is presumed to have known the person assaulted was a peace officer if he was wearing a distinctive uniform indicating his employment as a peace officer."
The Court of Appeals did not address the pre-emption issue; it assumed that the ordinance prohibited physical as well as verbal assaults, and still found the ordinance substantially overbroad. 789 F. 2d, at 1109. Because the city conceded pre-emption in this Court, see Reply Brief for Appellant 10, we need not address the question whether the ordinance, if not partially pre-empted, would be substantially overbroad.
In any case, today's decision does not leave municipalities powerless to punish physical obstruction of police action. For example, JUSTICE POWELL states that "a municipality constitutionally may punish an individual who chooses to stand near a police officer and persistently attempt to engage the officer in conversation while the officer is directing traffic at a busy intersection." Post, at 479. We agree, however, that such conduct might constitutionally be punished under a properly tailored statute, such as a disorderly conduct statute that makes it unlawful to fail to disperse in response to a valid police order or to create a traffic hazard. E. g., Colten v. Kentucky, 407 U.S. 104 (1972). What a municipality may not do, however, and what Houston has done in this case, is to attempt to punish such conduct by broadly criminalizing speech directed to an officer — in this case, by authorizing the police to arrest a person who in any manner verbally interrupts an officer.
JUSTICE POWELL also observes that "contentious and abusive" speech can interrupt an officer's investigation, and offers as an example a person who "run[s] beside [an officer pursuing a felon] in a public street shouting at the officer." Post, at 479. But what is of concern in that example is not simply contentious speech, but rather the possibility that by shouting and running beside the officer the person may physically obstruct the officer's investigation. Although that person might constitutionally be punished under a tailored statute that prohibited individuals from physically obstructing an officer's investigation, he or she may not be punished under a broad statute aimed at speech.
The freedom verbally to challenge police action is not without limits, of course; we have recognized that "fighting words" which "by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not constitutionally protected. Chaplinsky v. New Hampshire, supra, at 572; Gooding v. Wilson, 405 U.S. 518, 522-525 (1972). See also supra, at 461-462, and n. 10.
"(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
"(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . . ." Ky. Rev. Stat. § 437.016(1)(f) (Supp. 1968); see 407 U. S., at 108.
The Court upheld the ordinance against overbreadth challenge because the Kentucky Supreme Court had construed it so that it "infringe[d] no protected speech or conduct." Id., at 111.
The Court's second reason for not abstaining is that it believes the statute is not " `fairly subject to an interpretation which will . . . substantially modify the federal constitutional question.' " Ante, at 468 (quoting Harman v. Forssenius, 380 U.S. 528, 534-535 (1965)). See supra, at 473-474, for my disagreement with this view.