Did abusive, indecent, profane, or vulgar language in a Texas public place automatically amount to a breach of the peace?

Texas AG Opinion JM-900: When Offensive Public Speech Became Fighting Words

Plain-English summary

Representative David Cain asked whether using abusive, indecent, profane, or vulgar language in a public place automatically created an immediate breach of the peace under Penal Code section 42.01(a)(1).

The Attorney General said no. To survive constitutional scrutiny, the provision could punish only "fighting words." Whether particular words qualified depended on the facts. The question was whether people of common intelligence would understand the words as likely to cause an average person addressed by them to fight.

The statute did not reach language merely because it was harsh, insulting, annoying, inappropriate, disgusting, repulsive, tactless, gross, or appalling. Nor did public inconvenience, annoyance, or unrest by itself establish the offense. A conviction under a breach-of-the-peace statute required proof of actual or threatened violence.

The opinion also explained that the average addressee was neither a person unusually sensitive to the speech nor a person unusually accustomed to it. The setting and likely response mattered; the vocabulary alone did not decide the case.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did profanity in a public place automatically violate section 42.01(a)(1)?

No. The language had to amount to fighting words in its factual setting. Offensive or vulgar wording alone was not enough.

What did the opinion mean by fighting words?

It used the test from Chaplinsky and Gooding: words that people of common intelligence would understand as likely to cause an average addressee to fight.

Was the test based on an especially sensitive listener?

No. The average addressee was not someone overly sensitive to the speech. The opinion also excluded someone unusually accustomed or hardened to it.

Could merely annoying or insulting speech support a conviction?

No. The opinion said speech causing only inconvenience, annoyance, unrest, or offense remained outside the statute. It treated actual or threatened violence as essential.

Was every case decided from the words alone?

No. Whether the language was likely to provoke a fight was a factual question that depended substantially on the circumstances in which it was spoken.

Background and statutory framework

Section 42.01(a)(1) made it an offense to intentionally or knowingly use abusive, indecent, profane, or vulgar language in a public place if the language by its very utterance tended to incite an immediate breach of the peace.

The opinion read that language through United States Supreme Court decisions protecting expression. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), supplied the fighting-words category. Gooding v. Wilson, 405 U.S. 518, 522 (1972), described words likely to cause an average addressee to fight and limited breach-of-the-peace statutes to language plainly tending to provoke that response. Cohen v. California, 403 U.S. 15, 20 (1971), Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and Speiser v. Randall, 357 U.S. 513, 525 (1958), reinforced the narrow line between protected speech and punishable speech.

Texas decisions supplied the violence requirement. Woods v. State, 213 S.W.2d 685, 687 (Tex. Crim. App. 1948), required a jury instruction that actual or threatened violence was essential. Jimmerson v. State, 561 S.W.2d 5 (Tex. Crim. App. 1978), likewise treated anything short of fighting words as outside the statute. Terminiello v. Chicago, 337 U.S. 1, 4 (1949), protected speech unless it was likely to produce a clear and present danger of a serious substantive evil above public inconvenience, annoyance, or unrest.

Finally, City of Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398 (1987), and Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974), informed the opinion's description of the average addressee. The standard did not use either an unusually sensitive person or one unusually accustomed to the speech.

Citations

Statutory authority:

• Penal Code section 42.01(a)(1)

Cases:

• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
• Gooding v. Wilson, 405 U.S. 518 (1972)
• Acker v. Texas, 430 U.S. 962 (1977)
• Cohen v. California, 403 U.S. 15, 20 (1971)
• Bachellar v. Maryland, 397 U.S. 564, 567 (1970)
• Speiser v. Randall, 357 U.S. 513, 525 (1958)
• Woods v. State, 213 S.W.2d 685, 687 (Tex. Crim. App. 1948)
• Jimmerson v. State, 561 S.W.2d 5 (Tex. Crim. App. 1978)
• Terminiello v. Chicago, 337 U.S. 1, 4 (1949)
• City of Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398 (1987)
• Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974)

Other authorities referenced: Attorney General Opinion MW-1 (1979); Annot., 2 A.L.R.4th 1331.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-900
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0900.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

May 11, 1988

Honorable  David H. Cain                         Opinion No. JM-900
Texas House of Representatives
P. O. Box 2910                                   Re:     Whether the use of
Austin, Texas   78769                            "abusive,   indecent,    pro-
                                                 fane or vulgar"     language
                                                 in a public place consti-
                                                 tutes an immediate    breach
                                                 of the peace (RQ-1378)

Dear    Representative       Cain:

        Section     42.01   of the   Penal   Code   provides     in part    that

                  (a) A   person   commits an        offense      if   he
              intentionally    or knowingly:

                      (1) uses abusive,  indecent, profane,   or
                  vulgar language in a public place, if
                  the language by its very utterance    tends
                  to incite an immediate breach of the
                  peace[.]    (Emphasis added.)

Penal Code §42.01(a)(1).

        you    ask the   following    questions:

                  (1) Does uttering   abusive,   indecent,   pro-
              fane, or vulgar    language in     a public   place
              constitute   an   immediate      'breach   of   the
              peace?'

                 (2) How is 'breach          of the peace'       defined
              in relation to Article         42.01(a)(l)?

In order for this provision    to withstand   scrutiny under     the
broad guarantees   for freedom   of expression   and due    process
of law   in the   United States   Constitution,    the  utterances
prohibited  can only include "fighting words."    Chaplinsky   v.
New Hampshire,   315 U.S. 568 (1942).    See Gooding v.     Wilson,
                                        p. 4438

Honorable David H. Cain - Page 2 (JM-900)

405 U.S. 518 (1972) and Acker v. Texas 430 U.S. 962 (1977).
See also Attorney General Opinion MW-1 (1979).[1]
Whether particular words are "fighting words" is a
matter of fact. Chaplinsky, supra, at 573.

        The test is what     men of common    intelligence
        would understand     would   be words   likely    to
        cause an   average addressee     to   fight. . . .
        Derisive and annoying words      can be taken     as
        coming within    the   purview   of   the   statute
        . . . only when they have this characteristic
        of plainly tending to excite the addressee        to
        a breach of the peace.

See Gooding v. Wilson, supra, at 522, quoting with approval
the Supreme Court of New Hampshire, 18 A.2d 754, 758,
(1941). See generally, Cohen v. California, 403 U.S. 15, 20
(1971): Bachellar v. Maryland, 397 U.S. 564, 567 (1970); and
Gooding, supra. The "line between speech unconditionally
guaranteed and speech which may legitimately be regulated,
suppressed, or punished is finely drawn," Speiser v.
Randall, 357 U.S. 513, 525 (1958).

  Speech punishable      under the     Penal Code provision        does

not include language merely harsh and insulting, see
Gooding, supra, at 525, and it should not include speech,
actual or symbolic, that is only "inappropriate,"
"naughty," "disgusting," "repulsive," "tactless," "gross,"
or "appalling." Annot., 2 A.L.R.4th 1331. Conviction under
a statute specifying a "breach of the peace" as an element
of the offense must be based on jury instructions including
an admonition that proof of "actual or threatened violence
is essential." Woods v. State 213 S.W.2d 685, 687 (Tex.
Crim. App. 1948). In other words anything short of the use
of "fighting words" does not constitute a breach of the
statute. See Jimmerson v. State 561 S.W.2d 5 (Tex. Crim.
App. 1978). Speech is protected against 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).

1. This statute does not concern speech legally        obscene

under the standards provided by the United States Supreme
Court in Miller v. California, 413 U.S. 15 (1973). See
Spears v. State, 337 So.2d 977 (Fla. 1976).

                                 p. 4439


Honorable     David   H. Cain     - Page     3   (JM-900)




      Finally, because the application       of the   statute    may
turn largely on the factual setting of the speech at           issue,
the test is whether,     in a particular     instance,   an  average
person would be inclined to respond by fighting.       An  average
person is    not someone   who is    overly sensitive     or   overly
inured to the speech in question.       Cohen, supra and     City of Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398 (1987), quoting        from
a concurring    opinion   of Justice    Powell    in Lewis   v.   City of New Orleans, 415 U.S. 130, 135 (1974).

                                 SUMMARY

                Article     42.01(a)(l)    of   the   Penal    Code
            applies only to speech        which as a matter       of
            fact    constitutes     "fighting    words."      As   a
            matter of     law, the    statute does      not   reach
            speech that      merely  causes    public    inconven-
            ience,    annoyance,      or   unrest.       "Fighting
            words" are words which would likely cause           an
            average     addressee    to   fight.     An   "average
            addressee"      is not    someone   either     overly
            sensitive    or overly inured      to the speech      in
            question.




                                                 JIM      MATTOX
                                                 Attorney  General   of Texas

MARY KELLER
First Assistant       Attorney     General

LOU MCCREARY
Executive  Assistant      Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Don Bustion
Assistant Attorney General




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