482 U. S. 451
June 15, 1987
A Houston ordinance made it a crime to “in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” Raymond Wayne Hill, a gay rights activist who had been charged with this offense four times, sued to have the ordinance invalidated under the First Amendment. After some early losses in the lower courts, Houston argued that the Supreme Court should ask the Texas courts for a clarifying interpretation, and abstain from interpreting the act by its own lights.
The Court ruled 6-3 that certifying the case to Texas courts for clarification was inappropriate, and ruled 8-1 that the ordinance did violate the First Amendment. Brennan wrote for the majority, and he stressed the law’s overbroad nature, citing precedents that had recognized the need for citizens to be free to blow off some steam against policemen. The ordinance could easily have been written narrower, and it allowed officers too much discretion, since the mere act of talking had been sufficient to sustain convictions in practice. Brennan rejected the argument that Pullman abstention was necessary. Because he found the meaning of the ordinance plain, he did not think state courts could put any spin on the act which would render it Constitutional.
Powell, joined by Rehnquist and O’Connor, wrote to say that certification to Texas courts was a good idea. He believed that the state courts might be able to narrow its reach, especially through requiring those who violate it to have the intent to do so. Having lost this argument to Brennan though, Powell admitted that abstention would otherwise be inappropriate, since getting an authoritative construction from state courts in the absence of certification would be difficult. Examining the law, he found that it might be seen merely as prohibiting obstructive conduct rather than speech, but ultimately concluded that its vagueness and reckless pattern of enforcement compelled the conclusion of unconstitutionality.
Rehnquist did not join that last section of Powell’s opinion, and found the ordinance wholly proper. He offered no argument of his own, but cited a dissent from a similar previous case. Scalia joined all of Powell’s opinion except the certification bit, and wrote a brief concurrence stating that he agreed with Brennan on that question. All in all, I think the Court struck the right balance. The only shame is that the logic of this case hasn’t yet been extended to a judge’s power to impose summary contempt of court, that power being perhaps the most egregiously unconstitutional fixture in our criminal justice system today.