Under any reading of the evidence in this case as it was first tried, two controlling facts stand out. First, the sole activity which preceded physical contact between the police and appellant was appellant's use of words. Second, whatever degree of physical contact took place (and the evidence is in dispute on the extent of contact), the initial contact was made by a police officer. Under these circumstances, appellant has been charged and convicted for the use of words. Offensive as these words may have been, it is my understanding that they are constitutionally protected.
Lewis v. New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (a municipal ordinance which ‘punishes only spoken words . . . can therefore withstand appellant's attack upon its facial constitutionality only if . . . it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.’);
Plummer v. Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973) (an ordinance which ‘punishes only spoken words . . . is facially unconstitutional’);
Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (reversing conviction under disorderly conduct statute for uttering an obscenity during street demonstration);
Gooding v. Wilson, 405 U.S. 518, 521—22, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972) (reversing conviction for obscene and threatening words because ‘the constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within ‘narrowly limited classes of speech. “);
Cohen v. California, 403 U.S. 15, 22, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (‘if Cohen's (obscene) ‘speech’ was otherwise entitled to constitutional protection, we do not think the fact that some unwilling ‘listeners' in a public building may have been briefly exposed to it can serve to justify this breach of peace conviction’). See also
Wiegand v. Seaver, 504 F.2d 303, 307 (5th Cir. 1974), finding the statute at issue here unconstitutional because it ‘broadly encompasses both protected and unprotected speech.’