Summary
holding that statute prohibiting communications that "tend[ed] to provoke a breach of the peace" was overbroad and unconstitutionally vague under Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408
Summary of this case from Frese v. MacDonaldOpinion
38744.
DECIDED SEPTEMBER 23, 1982.
Criminal defamation; constitutional question. Bleckley Superior Court. Before Judge West.
McAllister Roberts, J. Dunham McAllister, for appellant.
James L. Wiggins, District Attorney, James E. Turk, Assistant District Attorney, for appellee.
Williamson appeals from the overruling of demurrers to indictments charging him with the offense of criminal defamation.
On motion for rehearing, the opinion of July 8, 1982, has been withdrawn, and the judgment of that date vacated.
Constrained by the decision of the Supreme Court of the United States in Gooding v. Wilson, 405 U.S. 518 ( 92 S.C. 1103, 31 L.Ed.2d 408) (1974), we hold that the requisite element of Code Ann. § 26-2804 — a communication which "tends to provoke a breach of the peace" — is vague and overbroad under the First and Fourteenth Amendments to the United States Constitution. See also Ashton v. Kentucky, 384 U.S. 195, 200 ( 86 S.C. 1407, 16 L.Ed.2d 469) (1966).
It should be noted that the General Assembly now has limited to "fighting words" the maximum outreach of the breach of the peace provision of the opprobrious language statute, Code Ann. § 26-2610 (a), consistent with Gooding v. Wilson, supra. The equivalent language contained in the statute here in question remains unchanged.
Judgment reversed. All the Justices concur, except Jordan, C. J., Clarke and Smith, JJ., who dissent.