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

p. 4440