source: Caselaw Access Project

author: Mr. Justice Rehnquist Mr. Justice Brennan,

license: Public Domain

text:
    WINDWARD SHIPPING (LONDON) LTD. et al. v. AMERICAN RADIO ASSOCIATION, AFL-CIO, et al.
    No. 72-1061.
    Argued December 3-4, 1973—
    Decided February 19, 1974
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Stewart, Blackmun, and Powell, JJ., joined. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 116.

      Robert 8. Ogden, Jr., argued the cause for petitioners. With him on the briefs were James V. Hayes and Joseph E. Fortenberry.

      Howard Schulman argued the cause for respondents. With him on the brief was W. Arthur Combs.

      Briefs of amici curiae urging reversal were filed by Solicitor General Bork and Allan A. Tuttle for the United States; by Frank L. Wiswall, Jr., for the Republic of Liberia; by Bryan F. Williams, Jr., for the West Gulf Maritime Assn., Inc.; and by Frank McRight for the Mobile Steamship Assn.

        J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Petitioners are the owners and managing agents of two ships which are registered under the laws of Liberia and fly the Liberian flag. They sought injunctive relief in the state courts in Texas to bar picketing of their vessels by respondent unions. The trial court denied relief, finding that the dispute was “arguably” within the jurisdiction of the National Labor Relations Board and that the jurisdiction of the state courts was therefore pre-empted. The Texas Court of Civil Appeals affirmed, and we granted certiorari, 412 U. S. 927 (1973), to consider whether the activities here complained of were activities “affecting commerce” within the meaning of §§ 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 450, 29 U. S. C. §§ 152 (6) and (7). We hold that they were not, and therefore reverse the judgment of the Court of Civil Appeals.

I

The vessels Northwind and Theomana are ships of Liberian registry, carrying cargo between foreign ports and the United States. Northwind is owned by petitioner Westwind Africa Line, Ltd., a Liberian corporation, while Theomana is owned by petitioner SPS Bulkcarriers Corp., a Liberian corporation, and managed by petitioner Windward Shipping (London) Ltd., a British corporation. The crews of both vessels are composed entirely of foreign nationals, represented by foreign unions and employed under foreign articles of agreement.

Respondents are American maritime unions, apparently representing a substantial majority of American merchant seamen. Alarmed by an accelerating decline in the number of jobs available to their members, these unions agreed to undertake collective action against foreign vessels, which they saw as the major cause of their business recession. Specifically, these unions agreed to picket foreign ships, calling attention to the competitive advantage enjoyed by such vessels because of a difference between foreign and domestic seamen’s wages. All parties concede that such a difference does exist.

The picketing here occurred at the Port of Houston, Texas, in October 1971. Both Northwind and Theomana were docked within the port, and respondents established picket lines in front of each vessel. There were four pickets assigned to each vessel, carrying signs which read:

“ATTENTION TO THE PUBLIC THE WAGES AND BENEFITS PAID SEAMEN ABOARD THE VESSEL THEOMANA [NORTH-WIND] ARE SUBSTANDARD TO THOSE OF AMERICAN SEAMEN. THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARDS AND LOSS OF OUR JOBS. PLEASE DO NOT PATRONIZE THIS VESSEL. HELP THE AMERICAN SEAMEN. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL ON THIS SITE.”

[Printed names of the six unions.]

These signs were supplemented by pamphlets of similar import. The pickets were instructed not to discuss the picketing with anyone, and they appear to have followed their instructions.

The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners’ vessels. Petitioners filed separate suits in a Texas state court, asking the court to enjoin the picketing as tortious under Texas law. The primary basis for petitioners’ claim was that the picketing sought to induce the owners and crews to break pre-existing contracts. Respondents presented several defenses, contending in particular that the jurisdiction of the Texas court was pre-empted by the National Labor Relations Act.

The trial court sustained this contention, holding that jurisdiction properly lay with the NLRB, and the Texas Court of Civil Appeals affirmed. That court found that state jurisdiction was pre-empted by the Act when “the activities complained of are arguably either protected by section 7 or prohibited by section 8 of the NLRA as amended by the LMRA,” see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), and that the conduct here met that test. The court rejected petitioners’ argument that the picketing interfered with the “maritime operations of foreign-flag ships,” see McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), in such manner as to remove it from the Board’s jurisdiction. The court concluded:

“If [the picketing] but voices a complaint as to foreign wages and urges the public not to patronize foreign vessels it does not engage in matters outside of commerce. It is peaceful picketing, publicizing a labor dispute, of such a character that its validity is suggested by the Court’s holding in the Marine Cooks case, supra. It is, at least arguably, a protected activity under section 7 of the LMRA. As such, it is an activity as to which the exclusive jurisdiction to determine its propriety has been preempted to the NLRB.”

Petitioners contend that the Court of Appeals too narrowly construed this Court’s decisions denying the NLRB jurisdiction in cases involving foreign-flag ships. We therefore begin by examining the principles established by those decisions for determining the jurisdiction of the NLRB.

II

In a series of cases decided over the past 17 years, this Court has discussed the application of the Labor Management Relations Act in situations which might be broadly described as disputes between unions representing workers in this country and owners of foreign-flag vessels operating in international maritime commerce. Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (1957), is the leading case on the subject. In Benz the question was whether the Labor Management Relations Act, 1947, precluded a diversity suit for damages brought in the United States District Court by foreign shipowners against picketing American unions. The picketing had been undertaken in Portland, Oregon, to support striking foreign crews employed under foreign articles and had resulted in the refusal of workers to load and repair the docked foreign ships. The District Court had awarded damages and the Court of Appeals affirmed.

This Court held that the shipowners’ action was not pre-empted by the Labor Management Relations Act. Studying the legislative history of the Act, the Court found no indication that it was intended to govern disputes between foreign shipowners and foreign crews. On the contrary, the Court concluded that the most revealing legislative history strongly suggested the bill was a “bill of rights ... for American workingmen and for their employers.” Id., at 144. (Emphasis in original.) The Court stated that this history “inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions.” Ibid.

Recognition of the clear congressional purpose to apply the LMRA only to American workers and employers was doubtless a sufficient reason to place the picketing in Benz outside the Act. But the Court in that case made clear its reluctance to intrude domestic labor law willy-nilly into the complex of considerations affecting foreign trade, absent a clear congressional mandate to do so:

“For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident, and retaliative action so certain.” Id., at 147.

In the 17 years since Benz was decided, Congress has in no way indicated any such “affirmative intention,” and this Court has continued to construe the LMRA in accordance with the dictates of that case.

The reasoning of Benz was reaffirmed in McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), and Incres S. S. Co. v. Maritime Workers, 372 U. S. 24 (1963), decided together six years later. In McCulloch, we held that the National Labor Relations Board had improperly assumed jurisdiction under the Act to order an election involving foreign crews of foreign-flag ships. Rejecting the Board’s “balancing of contacts” theory, the Court said:

“[T]o follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports.” 372 U. S., at 19.

In lucres we applied this rationale to a situation involving union picketing of a foreign ship in an effort to organize the foreign crew. Reversing the holding, of a New York state court that the picketing was arguably within the jurisdiction of the NLRB, the Court said:

“The Board’s jurisdiction to prevent unfair labor practices, like its jurisdiction to direct elections, is based upon circumstances 'affecting commerce,’ and we have concluded that maritime operations of foreign-flag ships employing alien seamen are not in ‘commerce’ within the meaning of § 2 (6), 29 U. S. C. § 152 (6).” 372 U. S., at 27.

But Benz and its successor cases have not been read to exempt all organizational activities from the Act’s protections merely because those activities in some way were directed at an employer who was the owner of a foreign-flag vessel docked in an American port. In Longshoremen v. Ariadne Co., 397 U. S. 195 (1970), the Court held that the picketing of foreign ships to protest substandard wages paid by their owners to nonunion American longshoremen was “in ‘commerce’ within the meaning of § 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board.” Id., at 200. The pickets in Ariadne, unlike the pickets in Benz or Inores, were primarily engaged in a dispute as to whether an employer should hire unionized or nonunionized American workers to perform longshoremen’s work, and the substandard wages which they were protesting were being paid to fellow American workers. The Court specifically noted: “[T]his dispute centered on the wages to be paid American residents.” Id., at 199.

The term “in commerce,” as used in the LMRA, is obviously not self-defining, and certainly the activities in Benz, McCulloch, and Inores, held not covered by the Act, were literally just as much “in commerce” as were the activities held covered in Ariadne. Those cases which deny jurisdiction to the NLRB recognize that Congress, when it used the words “in commerce” in the LMRA, simply did not intend that Act to erase longstanding principles of comity and accommodation in international maritime trade. In Lauritzen v. Larsen, 345 U. S. 571, 577 (1953), the Court commented on the congressional intent with respect to the Jones Act of 1920 in these words:

“But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations.”

We are even more reluctant to attribute to Congress an intention to disrupt this comprehensive body of law by construction of an Act unrelated to maritime commerce and directed solely at American labor relations.

Ill

The picketing activities in this case do not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and lucres; respondents seek neither to organize the foreign crews for purpose of representation nor to support foreign crews in their own wage dispute with a foreign shipowner. But those cases do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable.

The picket signs utilized at the docks where the Northwind and Theomana were tied up protested the wages paid to foreign seamen who were employed by foreign shipowners under contracts made outside the United States. At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen’s refusal to load or unload the vessels, or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large-scale increase in operating costs would have more than a negligible impact on the “maritime operations” of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.

In this situation, the foreign vessels’ lot is not a happy one. A decision by the foreign owners to raise foreign seamen’s wages to a level mollifying the American pickets would have the most significant and far-reaching effect on the maritime operations of these ships throughout the world. A decision to boycott American ports in order to avoid the difficulties induced by the picketing would be detrimental not only to the private balance sheets of the foreign shipowners but to the citizenry of a country as dependent on goods carried in foreign bottoms as is ours. Retaliatory action against American vessels in foreign ports might likewise be considered, but the employment of such tactics would probably exacerbate and broaden the present dispute. Virtually none of the predictable responses of a foreign shipowner to picketing of this type, therefore, would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA was designed to regulate. This case, therefore, falls under Benz rather than under Ariadne.

Since we hold that respondents’ picketing was not “in commerce” as defined by the Act, we do not reach the question of whether the activity was otherwise of such a nature that state courts would be precluded by the LMRA from entertaining an action to enjoin it. Our conclusion that the activities here involved were not “in commerce” within the meaning of §§ 2 (6) and (7) of the NLRA, as amended by the LMRA, resolves a question which, of course, is one for the courts in the first instance. Ariadne, 397 U. S., at 200. The Court of Civil Appeals was therefore wrong in holding that the courts of the State of Texas were prevented by the LMRA from entertaining petitioners’ suit for an injunction.

Reversed.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.

Today’s reversal of the Texas Court of Civil Appeals does not, of course, end this case. There remain for disposition on remand two of the respondents’ defenses not reached by the Texas courts, namely (1) that Texas law does not proscribe respondents’ picketing, and (2) that, in any event, the First and Fourteenth Amendments protect respondents’ conduct.

But the fact that today’s decision does not finally decide the legality of respondents’ picketing should not obscure the significance of the Court’s holding. Ninety-five percent of our export trade has already fled American-flag vessels for cheaper, foreign-registered shipping. In holding that respondents’ picketing against foreign-flag vessels does not give rise to a dispute “affecting commerce” within the National Labor Relations Board’s jurisdiction, the Court effectively deprives American seamen, among all American employees in commerce, of any federally protected weapon with which to try to save their jobs. Additionally, the Court creates new difficulties for the Board in its administration of the Act by making the Board’s statutory jurisdiction turn on the identity of the competitor that might be affected by the picketing — a distinction relevant in the determination whether picketing is protected or prohibited activity under the Act, but a distinction rejected in other contexts in the determination of Board jurisdiction.

There is, of course, no doubt that Congress possesses the power to subject foreign shipping in American territorial waters to the federal labor laws. And the Court concedes that the picketing activities involved here fall literally within the term “commerce” as used in the Labor Management Relations Act. Ante, at 112.

After acknowledging the paucity of support for an exclusion in the term “commerce,” the Court, however, concludes that prior cases construing the “affecting commerce” limitation in §§ 2 (6), 2 (7), and 10 (29 U. S. C. §§ 152 (6), 152 (7), and 160) support the holding that respondents’ picketing against foreign-flag vessels is conduct not cognizable by the Board. With respect, I think that the Court misreads those cases, and also fails to take account of other relevant congressional and judicial guidance that leads to a contrary conclusion.

As the Court concedes, none of the cases relied upon reached the question before us, that is, whether American seamen may employ economic weapons to try to save their jobs by improving the competitive positions of their domestic employers vis-á-vis foreign shipping. Yet the Court relies upon those decisions as supporting the proposition that we must conclude that Congress “simply did not intend that Act [LMRA] to erase longstanding principles of comity and accommodation in international maritime trade,” ante, at 112-113, because the economic impact upon foreign shipping from respondents’ picketing might severely disrupt the maritime operations of foreign vessels. Not a word or sentence in any opinion in those cases supports that reading. Rather, those decisions rested squarely upon the reasoning that, in circumstances where Board cognizance of a dispute will necessarily involve Board inquiry into the labor relations between foreign crews and foreign vessels, Congress could not be understood to have granted the Board jurisdiction of the dispute.

In Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (1957), the seminal case in this area, an American union attempted to organize the foreign crew of a vessel operating under a foreign flag. The Court, holding that Congress did not fashion the LMRA “to resolve labor disputes between nationals of other countries operating ships under foreign laws,” id., at 143, said:

“It should be noted at the outset that the dispute from which these actions sprang arose on a foreign vessel. It was between a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation. The only American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing.” Id., at 142.

Similarly, subsequent decisions also turned jurisdiction on the determination whether Board cognizance would require the Board to inquire into the internal relations between the foreign ship’s crew and its foreign owner. In McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), we held that the Board did not have jurisdiction to order an election on a foreign-flag vessel, for

“to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports.” Id., at 19.

In Incres S. S. Co. v. Maritime Workers, 372 U. S. 24 (1963), the issue was whether the Board had power to adjudicate the legality of the efforts of a union to organize the members of a foreign crew. Again, the Court held that the Board was without jurisdiction under the Act, since adjudication of that question would require that the Board examine into the relations between that crew and its foreign-flag employer. Id., at 27-28.

The question whether a labor dispute would necessitate Board inquiry into the relations between foreign vessels and crews' was yet again central in Longshoremen v. Ariadne Co., 397 U. S. 195 (1970), the most recent of the cases where we sustained Board jurisdiction of a dispute involving picketing of a foreign-flag ship in protest against wages being paid to American longshoremen unloading the foreign vessel in an American port. We held that the prohibited inquiry would not result in that case, explaining:

“We hold that [the longshoremen’s] activities were not ['maritime operations of foreign-flag ships’]. The American longshoremen’s short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships’ 'internal discipline and order.’ Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in 'commerce’ within the meaning of §2(6), and thus might have been subject to the regulatory power of the National Labor Relations Board.” Id., at 200.

Thus, the only appropriate issue in the instant case is whether NLRB cognizance of respondents’ picketing would require that the Board inquire into the “internal discipline and order” of foreign vessels, and thus threaten “interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law.” Tested by that principle, I conclude, contrary to the Court, that this case falls under Ariadne rather than under Benz.

Ariadne is the controlling precedent even if the Court is correct that this dispute “could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.” Ante, at 114. For respondents’ picketing is not directed at forcing the shipowners to make that or any other accommodation that could be characterized as interference with relations between crews and shipowners. Respondents’ target is to persuade shippers not to patronize foreign vessels, and respondents have no concern with the form of the shipowners’ response that makes their efforts succeed.

Similarly, Ariadne is the controlling precedent even if the Court is right that “[virtually none of the predictable responses of a foreign shipowner to picketing of this type . . . would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA [as it amended the NLRA] was designed to regulate.” Ante, at 115. The question whether this case falls within the Board's jurisdiction does not turn on the “predictable responses” of the foreign shipowner but, under-our cases from Benz to Ariadne, solely on the question whether cognizance of respondents’ activity would involve the Board in an examination into the internal relations between the foreign crews and shipowners. Cognizance of respondents' conduct in this case would not appear to require that inquiry. In any event, as the Texas Court of Civil Appeals correctly observed, it suffices for Board jurisdiction of that conduct that it is arguable whether that inquiry is required, for in such case it is for the Board to determine in the first instance whether that conduct involves a labor dispute within its cognizance. San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959).

But my disagreement with the Court does not rest alone on its failure adequately to rationalize and distinguish the case law. As the Court states, the Nation’s labor laws must be read in light of the longstanding involvement of Congress with maritime affairs. If that involvement is examined, however, it will demonstrate that, beginning with its first session, 1 Stat. 55, Congress has been deeply engaged in legislating to protect American vessels from competition, usually by enacting discriminatory laws against foreign-flag vessels. Myriad hearings and reports reflect congressional determination that the American merchant marine, largely because of protections afforded American seamen’s wages and working conditions in collective bargaining fostered by the National Labor Relations Act, shall have legislative help to support its efforts to compete on equal terms for a share of our foreign commerce.

This congressional support was highlighted as recently as 1970, in amendments to the Merchant Marine Act, 1936, 46 U. S. C. § 1101 et seq., to which we may look with profit. The declaration of policy of that Act, as amended in 1970, states as its purpose that “[i]t is necessary for the national defense and development of [the United States’] foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States . . . That merchant marine is further to be “owned and operated under the United States flag by citizens of the United States, insofar as may be practicable,” and is to be “manned with a trained and efficient citizen personnel.” 46 U. S. C. § 1101. See also Merchant Marine Act, 1920, 46 U. S. C. § 861. The 1936 Act furthers those aims by providing subsidies for the construction and operation of American-flag shipping, 46 U. S. C. §§ 1151, 1171, and goes far in imposing discriminations against foreign-flag shipping in regard to certain types of freight. 46 U. S. C. §1241. See also 46 U. S. C. §§251, 808 (restricting coastwise trade). Far from conduct in conflict with Congress’ legislative policies in the maritime field, respondents’ picketing seeks precisely the same goals.

Yet the Court, although not remotely suggesting that respondents’ picketing constitutes an illegal intrusion by private citizens into foreign affairs, reaches a conclusion that necessarily implies that Congress was content to leave the whole problem to resolution by the States. It is inconceivable that Congress meant to leave regulation of activity in this area of predominantly national concern to disparate state laws reflecting parochial interests.

I would affirm the judgment of the Texas Court of Civil Appeals.

       482 S. W. 2d 675 (1972).

       The definitions in §§ 2 (6) and (7), 29 U. S. C. §§ 152 (6) and (7), as amended by the Labor Management Relations Act, 1947, are as follows:
      "(6) The term ‘commerce’ means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.
      “(7) The term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.”

       Respondents describe themselves in their brief as “six labor organizations who collectively represent the overwhelming majority and practically almost all American merchant seamen.” Brief for Respondents 2.

       The petitioners state:
      “We do not contest the fact that the wages of foreign crews on foreign ships are substantially lower than those paid to American seamen on American ships.” Brief for Petitioners 19.
      The brief notes some estimates that the American wage costs are between 2% to 4 times higher than the foreign wage costs. Id., at 19 n.

       These pamphlets stated:
      “To the Public — American Seamen have lost approximately 50% of their jobs in the past few years to foreign flag ships employing seamen at a fraction of the wages of American Seamen.
      “American dollars flowing to these foreign ship owners operating ships at wages and benefits substandard to American Seamen, are hurting our balance of payments in addition to hurting our economy by the loss of jobs.
      “A strong American Merchant Marine is essential to our national defense. The fewer American flag ships there are, the weaker our position will be in a period of national emergency.
      “PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG AMERICAN MERCHANT MARINE.
      “Our dispute is limited to the vessel picketed at this site, the S. S.” (App. 21).

       The courts below considered only this ground advanced by respondents, finding it dispositive. We express no opinion on the merits of respondents’ other contentions.

       482 S. W. 2d, at 678.

         Id., at 680-682.

        Id., at 682.

        Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (1957); McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963); Incres S. S. Co. v. Maritime Workers, 372 U. S. 24 (1963); Longshoremen v. Ariadne Co., 397 U. S. 195 (1970).

       The Court in McCulloch also noted that the Board’s actions had “aroused vigorous protests from foreign governments and created international problems for our Government.” 372 U. S., at 17.

       The evidence in Ariadne showed that the work at issue was performed partly by members of the foreign ships’ crews and partly by outside labor. 397 U. S., at 196. Those workers included in the classification “outside labor” were nonunion members. This Court noted that “[t]he participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work.” Id., at 199.

       The basic question at issue in Lauritzen was whether American or Danish law applied to a maritime tort which occurred in Havana Harbor. Although analysis of the Jones Act there obviously involved different considerations from analysis of the Labor Management Relations Act here, it is interesting to note that some arguments at least are common to both cases. In Lauritzen this Court rejected a “candid and brash appeal” made by the seamen and various amici that the Court should “extend the law to this situation as a means of benefiting seamen and enhancing the costs of foreign ship operation for the competitive advantage of our own.” 345 U. S., at 593. We observed at that time that such arguments were obviously better directed to Congress.

       We do not find the rationale of Marine Cooks & Stewards v. Panama S. S. Co., 362 U. S. 365 (1960), to be applicable here. Although that case involved a labor situation strikingly similar to the situation involved in this case, the controlling question in Marine Cooks was the jurisdiction of a federal district court to enjoin picketing of a foreign-flag ship under the Norris-LaGuardia Act, 29 U. S. C. § 101 et seq. The Court held that in such circumstances the district courts had no jurisdiction. However, as we later noted in McCulloch, 372 U. S., at 18, Marine Cooks “cannot be regarded as limiting the earlier Benz holding . . . since no question as to ‘whether the picketing . . . was tortious under state or federal law' was either presented or decided.” Obviously the question whether Congress intended the federal courts to stay out of the labor injunction business involves significantly different considerations from the question whether Congress intended the Labor Management Relations Act to apply to the type of picketing of foreign ships involved here.

       See NLRB v. Fruit & Vegetable Packers, 377 U. S. 58 (1964); id., at 76 (Black, J., concurring); Thornhill v. Alabama, 310 U. S. 88 (1940).

      See S. Rep. No. 91-1080, p. 16 (1970). See also id., at 17 (Chart 7: Projected Decline in Seafaring Job Opportunities in Foreign Trade Fleet from 1969 to 1980).

       Those meager materials to be found in the congressional debates concerning the Labor Management Relations Act contradict the notion that Congress meant to distinguish among American workingmen for purposes of defining the Board's jurisdiction over labor disputes affecting commerce. See H. R. Rep. No. 245, 80th Cong., 1st Sess., 4 (1947), discussed in Benz v. Compania Naviera Hidalgo,
        353 U. S. 138, 142-144 (1957). See also Longshoremen v. Ariadne Co., 397 U. S. 195, 198-199 (1970).

       Thus, the Court refused to make that distinction even where the language of the Act might have been read as indicating that Congress meant to draw it. In Teamsters v. New York, N. H. & H. R. Co., 350 U. S. 155 (1956), a union engaged in the over-the-road trucking of freight picketed a railroad loading yard to protest the “piggy-backing” of truck trailers on railroad cars that was curtailing their opportunities for employment. The railroad, subject to the Railway Labor Act, 45 U. S. C. § 151 et seq., was a “person” exempted from the NLRA’s definition of “employer.” 29 U. S. C. § 152 (2).
      Nonetheless, the Court relied upon the finding of the lower court that the “union was in no way concerned with [the railroad’s] labor policy,” and held that the dispute was subject to the jurisdiction of the National Labor Relations Board. The Court said:
      “This interpretation permits the harmonious effectuation of three distinct congressional objectives: (1) to provide orderly and peaceful procedures for protecting the rights of employers, employees and the public in labor disputes so as to promote the full, free flow of commerce, as expressed in § 1 (b) of the Labor Management Relations Act; (2) to maintain the traditional separate treatment of employer-employee relationships of railroads subject to the Railway Labor Act; and (3) to minimize ‘diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.’ Garner v. Teamsters Union, 346 U. S. 485, 490.” 350 U. S., at 160-161.
      In contrast, there is no wording in the statute, or any legislative history, supporting a reading that Congress meant to draw that line as to seamen.

       See Benz v. Compania Naviera Hidalgo, supra, at 142:
      "It is beyond question that a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that country. Wildenhus’s Case, 120 U. S. 1 (1887). ... It follows that if Congress had so chosen, it could have made the Act applicable to wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within our territorial waters.”

       The picket signs were not directed to improvement of the foreign crews’ wages and working conditions. The protest was carefully phrased to appeal to shippers not to patronize the foreign ships because payment of wages “substandard to those of American seamen . . . results in extreme damage to our wage standards and loss of our jobs.” Thus, cognizance of the dispute to determine the legality of the picketing as an unfair labor practice need not involve the Board in an inquiry whether the picketing called for an employer response in the form of an increase in the crews’ wages. This would not of course mean that respondents would prevail on the merits. There may well be a question, for example, whether the picketing falls within the ban of § 8 (b) (7), 29 U. S. C. § 158 (b) (7), as prohibited recognitional picketing. See Rosen, Area Standards Picketing, 23 Lab. L. J. 67 (1972); Note, Picketing for Area Standards: An Exception to Section 8 (b)(7), 1968 Duke L. J. 767.

       See, e. g., H. R. Rep. No. 91-1073 (1970); S. Rep. No. 91-1080 (1970); Hearings on H. R. 12324 and H. R. 12569 before the Subcommittee on Merchant Marine of the House Committee on Merchant Marine & Fisheries, 92d Cong., 2d Sess. (1972) (Cargo for American Ships); Hearings on H. R. 15424, H. R. 15425, and H. R. 15640 before the Subcommittee on Merchant Marine of the House Committee on Merchant Marine & Fisheries, 91st Cong., 2d Sess. (1970) (President’s Maritime Program, pt. 2); Hearings on S. 3287 before the Merchant Marine Subcommittee of the Senate Committee on Commerce, 91st Cong., 2d Sess. (1970) (the Maritime Program) ; Hearings on H. R. 1897, H. R. 2004, and H. R. 2331 before the House Committee on Merchant Marine & Fisheries, 88th Cong., 1st Sess. (1963) (Maritime Labor Legislation).


author: Per Curiam.

text:
    PHILLIPS PETROLEUM CO. v. TEXACO INC.
    No. 73-347.
    Decided February 19, 1974
   Per Curiam.

The respondent, Texaco, brought this action against the petitioner, Phillips Petroleum Co., in the Northern District of Oklahoma. The complaint asserted that Texaco had not been compensated for the helium constituent of natural gas sold by Texaco to Phillips. Texaco claimed it was entitled to the reasonable value of this helium in addition to the sums already paid by Phillips for the natural gas under the contract of sale. It is conceded that there is no diversity of citizenship between the parties. Accordingly, Texaco relied, as the basis for federal jurisdiction, on 28 U. S. C. § 1331 (a), asserting that its claim “[arose] under the Constitution, laws, or treaties of the United States.” Phillips moved to dismiss for want of federal jurisdiction of the subject matter. The District Court granted this motion, and Texaco appealed to the Court of Appeals for. the Tenth Circuit, which by a divided vote reversed the District Court’s determination that federal jurisdiction was lacking. Phillips seeks certiorari to review the Tenth Circuit’s decision and contends that past decisions of this Court make clear that Texaco’s claim cannot be said to “aris[e] under the Constitution, laws, or treaties of the United States.”

The substantive claim in this case is an outgrowth of an earlier decision of the Tenth Circuit, Northern Natural Gas Co. v. Grounds, 441 F. 2d 704 (1971). That was a federal interpleader action, in which the Court of Appeals held that lessee-producers of natural gas could recover the reasonable value of helium contained in the gas that they produced and sold to pipeline companies, which later extracted and marketed the helium. The essence of the Grounds decision was its rejection of the buyers’ contention that the contract price paid for the natural gas was compensation for “the gas stream in its entirety and, absent an express reservation, [that] the buyer gets the whole stream for such purposes as it may determine.” Id., at 720. The Court of Appeals reasoned that, as a result of the Helium Act Amendments of 1960, 74 Stat. 922, which added § 11 (50 U. S. C. § 167i) to the Helium Conservation Act, 43 Stat. 1110, “the Natural Gas Act, and the FPC fixed service rates, do not apply” to “[a] sale of the commingled helium as a component of the [natural] gas stream.” 441 F. 2d, at 721. Accordingly, the Court of Appeals concluded that “the reconciliation of the Natural Gas Act and of the 1960 amendments to the Helium Act . . . requires the conclusion that the FPC service rates do not apply to deny recovery for the contained helium” in the natural gas stream sold by the lessee-producers. Id., at 723. (Emphasis added.) The court went on to hold that the lessee-producers could therefore recover “the reasonable value of the helium content of the processed gas.” Ibid.

Because of the presence of federal interpleader jurisdiction, the court in Grounds did not consider whether there existed an independent basis for the exercise of federal jurisdiction. Texaco contends that the Court of Appeals in Grounds read the Natural Gas Act and § 11 of the Helium Conservation Act together to imply a federal cause of action for the recovery of the reasonable value of the helium constituent in natural gas. On the other hand, Phillips’ position is that Grounds held only that the effect of these federal statutory provisions is to preclude the defense of payment to a quasi-contractual action brought for the recovery of the reasonable value of the helium. Hence, Phillips argues that the federal questions raised in the complaint are not part of Texaco’s claim but are merely asserted in anticipation of a probable defense by Phillips.

This Court has repeatedly held that, in order for a claim to arise “under the Constitution, laws, or treaties of the United States,” “a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.” Gully v. First National Bank, 299 U. S. 109, 112 (1936). The federal questions “must be disclosed upon the face of the complaint, unaided by the answer.” Moreover, “the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense.” Gully, supra, at 113. See also Metcalf v. Watertown, 128 U. S. 586 (1888); Tennessee v. Union & Planters’ Bank, 152 U. S. 454 (1894); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908); Taylor v. Anderson, 234 U. S. 74 (1914); Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667 (1950).

The Grounds case cannot properly be read as creating a federal cause of action, deriving from the Natural Gas Act and § 11 of the Helium Conservation Act, for the recovery of the reasonable value of helium contained in natural gas sold at rates sanctioned by the Federal Power Commission. Indeed, in commenting on its earlier Grounds decision, the Court of Appeals in the present case concluded that “satisfactory utility regulation does not permit a utility rate to be used to obtain a commodity which is not within the contemplation of that rate.” 481 F. 2d 70, 73. (Emphasis added.) In other words, the Grounds case simply held that payment for natural gas at rates established or permitted by the Commission under the authority of the Natural Gas Act will not be regarded as payment for the helium constituent and cannot be asserted as a defense to a suit for the recovery of the value of that helium. In short, the federal statutory provisions do not under Grounds create a federal right of recovery, but only preclude the interposition of a plea of payment to defeat a quasi-contractual suit for the value of the helium.

Texaco’s suit for the reasonable value of the helium is, in effect, an action in quantum meruit, whose source is state law and not federal law. Cf. Oneida Indian Nation v. County of Oneida, 414 U. S. 661 (1974). To the extent that the Natural Gas Act and the 1960 Helium Act Amendments may bear on this action for the recovery of the reasonable value of constituent helium in natural gas, it is clear that their effect is no more than to overcome a potential defense to the action. Under the settled precedent of our past decisions noted above, it thus cannot be said that this suit “arises under the Constitution, laws, or treaties of the United States.” Accordingly, there is no federal jurisdiction under 28 U. S. C. § 1331 (a).

The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.

MR. Justice Douglas and Mr. Justice Brennan dissent from the summary disposition of this case without full briefing and oral argument. They would grant the petition and set the case for oral argument.

Mr. Justice White took no part in the consideration or decision of this case.

       The price paid here was in accordance with rates sanctioned by the Federal Power Commission, which has authority to establish such rates under the Natural Gas Act of 1938, 52 Stat. 821, 15 U. S. C. §§ 717-717w.

       Texaco has not pointed to any language either in the Natural Gas Act and the 1960 Helium Act Amendments or in the legislative history of these enactments that could be read to create a federal cause of action for the recovery of the reasonable value of the helium under the circumstances of this case.


author: Me. Justice Brennan Mr. Justice Powell, Mr. Justice Blackmun,

text:
    LEWIS v. CITY OF NEW ORLEANS
    No. 72-6156.
    Argued December 10, 1973—
    Decided February 20, 1974
    Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ,, joined. Powell, J., filed an opinion concurring in the result, post, p. 134. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 136.

      John Wilson Reed argued the cause and filed a brief for appellant.

      Servando C. Oarcia III argued the cause for appellee. With him on the brief was Blake G. Arata.

   Me. Justice Brennan

delivered the opinion of the Court.

Upon the Louisiana Supreme Court’s reconsideration of this case in light of Gooding v. Wilson, 405 U. S. 518 (1972), pursuant to our remand, 408 U. S. 913 (1972), that court, three judges dissenting, again sustained appellant’s conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M. C. S. § 49-7, 263 La. 809, 269 So. 2d 450 (1972) , We noted probable jurisdiction, 412 U. S. 926 (1973), and we reverse. We hold that § 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth Amendments and is therefore facially invalid. Section 49-7 provides:

“It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”

The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: “The proscriptions are narrow and specific— wantonly cursing, reviling, and using obscene or opprobrious language.” 263 La., at 827, 269 So. 2d, at 456. Nonetheless, that court took the position that, as written, “it [ § 49-7] is narrowed to 'fighting words’ uttered to specific persons at a specific time . . . .” Id., at 826, 269 So. 2d, at 456. But § 49-7 plainly has a broader sweep than the constitutional definition of “fighting words” announced in Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942), and reaffirmed in Gooding v. Wilson, supra, at 522, namely, “those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city’s justification for regulation of “the conduct of any person towards a member of the city police while in the actual performance of his duty .... Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer’s activities and the place where such activities are performed.” 263 La., at 825, 269 So. 2d, at 456.

At the least, the proscription of the use of “opprobrious language,” embraces words that do not “by. their very utterance inflict injury or tend to incite an immediate breach of the peace.” That was our conclusion as to the word “opprobrious” in the Georgia statute held unconstitutional in Gooding v. Wilson, where we found that the common dictionary definition of that term embraced words “conveying or intended to convey disgrace” and therefore that the term was not limited to words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” 405 U. S., at 525. The same conclusion is compelled as to the reach of the term in § 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define — as limited by Chaplinsky and Gooding — “opprobrious,” or indeed any other term in § 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in Gooding v. Wilson, supra, at 520-521, in this respect:

“It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when ‘no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,’ . . . the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity’ .... This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.”

In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant’s attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Cohen v. California, 403 U. S. 15, 18-22 (1971); Terminiello v. Chicago, 337 U. S. 1, 4-5 (1949); Gooding v. Wilson, supra, at 520. Since § 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally over-broad and therefore is facially invalid.

The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Powell,

concurring in the result.

I previously concurred in the remand of this case, 408 U. S. 913 (1972), but only for reconsideration in light of Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). Pursuant to the remand order, we now have the Louisiana Supreme Court’s decision construing New Orleans Ordinance 828 M. C. S. § 49-7. I agree with the Court’s conclusion today that the Louisiana Supreme Court “did not refine or narrow these words [of the ordinance], but took them as they stood.” Ante, at 132. In conclusory language, that court construed the ordinance to create a per se rule: Whenever “obscene or opprobrious language” is used “toward or with reference to any member of the city police while in the actual performance of his duty,” such language constitutes “fighting words” and hence a violation without regard to the facts and circumstances of a particular case. As so construed, the ordinance is facially overbroad.

Quite apart from the ambiguity inherent in the term “opprobrious,” words may or may not be “fighting words,” depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in. whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to “exercise a higher degree of restraint” than the average citizen, and thus be less likely to respond belligerently to “fighting words.” 408 U. S. 913. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961).

This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in “one-on-one” situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in performance of his duties. Indeed, the language need not be addressed directly to the officer since the ordinance is violated even if the objectionable language is used only “with reference to any member of the city police.”

Contrary to the city’s argument, it is unlikely that limiting the ordinance’s application to genuine “fighting words” would be incompatible with the full and adequate performance of an officer’s duties. In arrests for the more common street crimes (e. g., robbery, assault, disorderly conduct, resisting arrest), it is usually unnecessary that the person also be charged with the less serious offense of addressing obscene words to the officer. The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.

,1 therefore concur in the result.

Mr. Justice Blackmun,

with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.

Mr. Justice Holmes aptly observed:

“All rights tend to declare themselves absolute to their logical extreme.” Hudson County Water Co. v. McCarter, 209 U. S. 349, 355 (1908).

The extreme to which we allow ourselves to be manipulated by theory extended to the end of logic is exemplified by the Court’s opinion in this case and in its blood brother of two years ago, Gooding v. Wilson, 405 U. S. 518 (1972). The “overbreadth” and “vagueness” doctrines, as they are now being applied by the Court, quietly and steadily have worked their way into First Amendment parlance much as substantive due process did for the “old Court” of the 20’s and 30’s. These doctrines are being invoked indiscriminately without regard to the nature of the speech in question, the possible effect the statute or ordinance has upon such speech, the importance of the speech in relation to the exposition of ideas, or the purported or asserted community interest in preventing that speech. And it is no happenstance that in each case the facts are relegated to footnote status, conveniently distant and in a less disturbing focus. This is the compulsion of a doctrine that reduces our function to parsing words in the context of imaginary events. The result is that we are not merely applying constitutional limitations, as was intended by the Framers, and, indeed, as the history of our constitutional adjudication indicates, but are invalidating state statutes in wholesale lots because they “conceivably might apply to others who might utter other words.” Gooding v. Wilson, 405 U. S., at 535 (dissenting opinion).

The application of this elliptical analysis to Gooding and to this case is instructive. In Gooding, officers were attempting to restore public access to a building when they were met by physical resistance and loud, personal abuse: “White son of a bitch, I’ll kill you,” “You son of a bitch, I’ll choke you to death,” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” The defendant was convicted under a Georgia statute which provided that any person “who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.” The Court seized upon dictionary definitions and language of Georgia court decisions from the turn of the century. It concluded that the statute swept beyond the bounds of the “fighting words” limitation of Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), despite the fact that the language of the statute virtually tracked the language used by the Chaplinsky Court to describe words properly subject to some regulation, and without any demonstration in reason how “the narrow language of the Georgia statute has any significant potential for sweeping application to suppress or deter important protected speech.” 405 U. S., at 529 (Burger, C. J., dissenting).

In the present case, appellant and her husband were stopped by a police officer. Appellant's and the officer’s respective versions of the incident are conflicting, but the municipal judge credited the officer's testimony. That finding, of course, on this record, is binding upon us. The officer testified that while he was waiting for appellant's husband to produce his driver’s license, appellant came out of their truck “and started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. I said ‘lady I don’t have your son and I am not talking to you. I am talking to this man and you can go sit in the truck.’ She said ‘you god damn m. f. police — I am going to Giarrusso [the police superintendent] to see about this.’ I said ‘lady you are going to jail — you are under arrest.’ She said ‘you’re not taking me to jail’ and she started to get back in the cab of the truck and I caught up to her while she was getting in the cab. I attempted to take her and she started fighting and swinging her arms.” App. 8. A fight ensued and appellant was subdued with the help of another officer. Appellant was charged with resisting arrest and with wantonly reviling the police. She was convicted on both charges but appealed only the conviction of wantonly reviling the police.

We remanded this case to the Supreme Court of Louisiana to construe the meaning of the ordinance. 408 U. S. 913 (1972). That court, after reviewing the applicable precedents, including Chaplinsky and Good-ing, specifically construed the ordinance as “not offensive to protected speech; it is narrowed to ‘fighting words’ uttered to specific persons at a specific time; it is not overbroad and is therefore not unconstitutional. . . . Any reasonable man knows what it is to wantonly curse or revile .... The Section definitely does not sweep within its proscriptions all forms of abusive and derogatory speech.” 263 La. 809, 826-827, 269 So. 2d 450, 456 (emphasis in original).

Again, setting the facts to one side, this Court selectively dissects the wording of the Louisiana Supreme Court opinion, eyes the word “opprobrious,” refers us to its treatment of “opprobrious” in Gooding, observes that “§ 49-7 plainly has a broader sweep than the constitutional definition of ‘fighting words’ announced in Chaplinsky,” ante, at 132, and concludes that “we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define — as limited by Chaplinsky and Gooding — ‘opprobrious,’ or indeed any other term in § 49-7.” Ante, at 133. And, again, the ordinance is struck down with no discussion of whether it might significantly affect protected speech, and no reasons why the State’s interest in public peace and the harmonious administration of its laws should not prevail over a lone, individual claim that the ordinance is unconstitutional as applied to others. I cannot reconcile what the Court says with what the Louisiana Supreme Court has said. I believe my Brethren of the majority merely seek a result here, just as I was convinced they sought a result in Gooding.

Mr. Justice Jackson warned of the dangers of this kind of constitutional analysis:

“But I did not suppose our function was that of a council of revision. The issue before us is whether what has been done has deprived this appellant of a constitutional right. It is the law as applied that we review, not the abstract, academic questions which it might raise in some more doubtful case.” Saia v. New York, 334 U. S. 558, 571 (1948) (dissenting opinion).

Overbreadth and vagueness in the field of speech, as the present case and Gooding indicate, have become result-oriented rubberstamps attuned to the easy and imagined self-assurance that “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U. S. 15, 25 (1971). The danger is apparent. Inherent in the use of these doctrines and this standard is a judicial-legislative confrontation. The more frequent our intervention, which of late has been unrestrained, the more we usurp the prerogative of democratic government. Instead of applying constitutional limitations, we do become a “council of revision.” If the Court adheres to its present course, no state statute or city ordinance will be acceptable unless it parrots the wording of our opinions.

This surely is not what the Framers intended and this is not our constitutional function. I would adhere to what Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench in Chaplinsky, 315 U. S., at 571-572:

“Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U. S. 296, 309-310.” (Footnotes omitted.)

The speech uttered by Mrs. Lewis to the arresting officer “plainly” was profane, “plainly” it was insulting, and “plainly” it was fighting. It therefore is within the reach of the ordinance, as narrowed by Louisiana's highest court. The ordinance, moreover, poses no significant threat to protected speech. And it reflects a legitimate community interest in the harmonious administration of its laws. Police officers in this day perhaps must be thick skinned and prepared for abuse, but a wanton, high-velocity, verbal attack often is but a step away from violence or passioned reaction, no matter how self-disciplined the individuals involved. In the interest of the arrested person who could become the victim of police overbearance, and in the interest of the officer, who must anticipate violence and who, like the rest of us, is fallibly human, legislatures have enacted laws of the kind challenged in this case to serve a legitimate social purpose and to restrict only speech that is “of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.” Chaplinsky, supra, at 572. In such circumstances we should stay our hand and not yield to the absolutes of doctrine.

I see no alternative to our affirmance, and I therefore dissent.

       On January 3, 1970, appellant and her husband were in their pickup truck following a police patrol car that was taking their young son to a police station after his arrest. An Officer Berner in another patrol car intercepted and stopped the truck. Berner left his car and according to his testimony, asked the husband for his driver’s license. Words were exchanged between Berner and appellant and Berner arrested appellant on a charge of violating §49-7. The parties’ respective versions of the words exchanged were in sharp contradiction. Berner testified that appellant left the truck and “started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. . . . She said, ‘you god damn m. f. police' — -I am going to [the Superintendent of Police] about this.’” App. 8. Appellant’s husband testified that Berner’s first words were “let me see your god damned license. I’ll show you that you can’t follow the police all over the streets.’ . . . After [appellant] got out and said ‘Officer I want to find out about my son.’ He said ‘you get in the car woman. Get your black ass in the god damned car or I will show you something.’ ” App. 27. Appellant denied that she had used “any profanity toward the officer.” App. 37. The Municipal Judge credited Berner’s testimony and disbelieved appellant and her husband.

       We have no occasion in light of the result reached to address the conflict between this view and that of the framers of the Model Penal Code that suggests that even "fighting words” as defined by
        Chaplinsky should not be punished when addressed to a police officer trained to exercise a higher degree of restraint than the average citizen. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961).

      The facts in this case, and particularly the direct conflict of testimony as to “who said what,” well illustrate the possibility of abuse. Ante, at 131 n. 1.

       “Section 49-7. Cursing, etc., police prohibited.

      “It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”

       The suggestion that the ordinance is open to selective enforcement is no reason to strike it down. Courts are capable of stemming abusive application of statutes. See, e. g., Norwell v. City of Cincinnati, 414 U. S. 14 (1973). Questions of credibility, moreover, have been resolved by courts for centuries and there is no reason to believe the so-called modern age requires any different treatment.