The Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad. In
Houston v. Hill, supra, the Supreme Court struck down a City of Houston ordinance which provided that “[i]t shall be unlawful for any person to assault or strike or in any manner oppose, molest, and abuse or interrupt any policeman in the execution of his duty.” The Supreme Court also found that the ordinance was overbroad because it forbade citizens from criticizing and insulting police officers, although such conduct was constitutionally protected.
Id. 482 U.S. at 460–65, 107 S.Ct. at 2508–10. The fact that the statute also had a legitimate scope of application in prohibiting conduct which was clearly unprotected by the First Amendment was not enough to save it. In
Gooding v. Wilson, supra, the Supreme Court struck down a Georgia statute which made it a misdemeanor for “[a]ny person [to], without provocation, use to or of another, and in his presence ... opprobrious words or abusive language, tending to cause a breach of the peace.” The Supreme Court found that this statute was overbroad as well, because it punished speech which did not rise to the level of “fighting words,” as defined in
Chaplinsky v. New Hampshire, supra. The Supreme Court struck down a similar ordinance in
Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), on the same grounds. In
Papish v. University of Missouri, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973), the Supreme Court ordered the reinstatement of a university student expelled for distributing an underground newspaper sporting the headline “Motherfucker acquitted” on the grounds that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of conventions of decency.”
Id. at 670, 93 S.Ct. at 1199. Although the Supreme Court acknowledged that reasonable restrictions on the time, place, and manner of distribution might have been permissible, “the opinions below show clearly that [plaintiff] was dismissed because of the disapproved
content of the newspaper.”
Id. Most recently, in
Texas v. Johnson, supra, the Supreme Court invalidated a Texas statute prohibiting burning of the American flag on the grounds that there was no showing that the prohibited conduct was likely to incite a breach of the peace. These cases stand generally for the proposition that the state may not prohibit broad classes of speech, some of which may indeed be legitimately regulable, if in so doing a substantial amount of constitutionally protected conduct is also prohibited. This was the fundamental infirmity of the Policy.