Facts
- Arthur Terminiello delivered a speech in a Chicago auditorium to an audience of more than 800 people.
- Approximately 1,000 protesters gathered outside; the crowd was described as angry and turbulent, and police could not prevent several disturbances.
- In his remarks, Terminiello condemned the outside crowd and harshly criticized certain political and racial groups.
- Chicago prosecuted Terminiello under a municipal “breach of the peace” ordinance prohibiting “misbehavior which violates the public peace and decorum.”
- The jury was instructed that “misbehavior” could be a breach of the peace if it “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance,” among other effects.
- Terminiello was found guilty of disorderly conduct and fined $100; Illinois appellate courts affirmed.
Issues
- Whether Chicago’s breach-of-the-peace ordinance, as construed in the jury instruction and applied to Terminiello’s speech, violated the First Amendment as incorporated through the Fourteenth Amendment.
- Whether a conviction may stand where the jury was permitted to punish speech based on its tendency to provoke anger, dispute, or unrest, without requiring a showing of a sufficiently serious and imminent threat.
- Whether the conviction could be upheld on the theory that the speech consisted of unprotected “fighting words,” given a general verdict and an expansive instruction.
Decision
- The Supreme Court reversed Terminiello’s conviction in a 5–4 decision.
- The Court held the ordinance was unconstitutional as applied because the jury instruction permitted punishment of speech for stirring anger, inviting dispute, or causing unrest.
- The Court declined to decide whether the speech constituted “fighting words,” reasoning that the general verdict might have rested on the impermissibly broad instruction.
- The Court rejected the argument that failure to object to the instruction barred relief, because the constitutional error could have formed the basis of the conviction.
Legal Principles
- The First Amendment protects speech that is provocative and challenging; expression is not punishable merely because it invites dispute, creates unrest, or stirs anger.
- A breach-of-the-peace law is unconstitutional as applied when it authorizes conviction based on public annoyance, anger, or disturbance, rather than a more demanding showing of imminent serious harm.
- Speech may be restricted only when it is likely to produce a clear and present danger of a serious substantive evil beyond public inconvenience, annoyance, or unrest.
- When a jury instruction permits conviction on both protected and unprotected grounds and the verdict is general, the conviction cannot be upheld by assuming the jury relied only on an unprotected category such as “fighting words.”
Conclusion
The Court set aside the conviction because the jury was allowed to punish protected speech based on its tendency to provoke anger or unrest, without requiring a clear and present danger of serious harm, making the ordinance unconstitutional as applied.