The First Amendment, U.S. Const. amend. I, protects a significant amount of verbal criticism and challenge directed at police officers. Speech is often provocative and challenging, but it is nevertheless protected against censorship or 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.
Raymond Hill, a gay rights activist who had been arrested on previous occasions for violating a city ordinance which made it unlawful to "assault, strike, or in any manner oppose, molest, abuse or interrupt" police officers in the execution of their duty, but who had never been convicted, was again arrested under the ordinance when, after officers had approached a friend of his, he attempted to divert their attention by shouting at them to pick on someone their own size. After he was acquitted on those charges by a municipal court, the activist brought an action against the city in the United States District Court for the Southern District of Texas, in which action he sought (1) a declaratory judgment that the ordinance was unconstitutional on its face and as applied to him, (2) an injunction against its enforcement, (3) an order expunging the records of his arrests under the ordinance, and (4) damages and attorneys' fees. The District Court held that the ordinance was not an overly broad intrusion on speech protected under the First Amendment and entered judgment in favor of the city. However, the District Court's judgment was reversed and remanded by the United States Court of Appeals for the Fifth Circuit, which ruled that the ordinance was unconstitutionally overbroad. The panel's decision was adhered to by the Court of Appeals en banc, in a decision which (1) noted evidence that the ordinance had been regarded by local authorities as penalizing the mere interruption of an officer acting in the line of duty, and (2) concluded that there was a substantial danger that the ordinance would be applied against constitutionally protected speech (789 F2d 1103).
Is an ordinance that criminalizes constitutionally protected speech and vests excessive enforcement discretion with law enforcement officers unconstitutionally overbroad?
The court disagreed with the City's characterization of the statute as criminal. It noted that the enforceable portion of the ordinance dealt not with core criminal conduct, but with speech. Additionally, the court noted that the First Amendment protected a significant amount of verbal criticism and challenge directed at police officers. The Houston ordinance criminalized a substantial amount of constitutionally protected speech and accorded the police unconstitutional discretion in enforcement. The court concluded that the ordinance was substantially overbroad, and that the lower court did not err in holding it facially invalid. With respect to abstention, the court noted that the municipal courts had construed the ordinance. The court also noted that since the question was whether the ordinance on its face was unconstitutional, abstention from federal jurisdiction was not required.