Lewis v. City of New Orleans

What This Case Is About

A woman was arrested under a New Orleans ordinance that made it illegal to “curse or revile or to use obscene or opprobrious language toward or with reference to” a police officer. The Supreme Court struck down the ordinance as overbroad under the First Amendment, noting that it gave police virtually unrestrained power to arrest citizens for speech.

The Facts

The case arose from an arrest under New Orleans Ordinance 828 M.C.S. § 49-7, which prohibited cursing, reviling, or using “obscene or opprobrious language” toward any police officer performing their duties. The Louisiana Supreme Court had construed the ordinance to mean that whenever such language was directed at an officer performing duties, it automatically constituted “fighting words” — regardless of the specific facts and circumstances of a given situation.

What the Court Decided

The Supreme Court reversed the conviction in a per curiam opinion, holding that the ordinance as construed by the Louisiana Supreme Court was facially overbroad and therefore invalid under the First and Fourteenth Amendments.

Justice Powell’s concurrence — widely cited in subsequent cases — made three key points:

1. Officers should exercise greater restraint: “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.’”

2. Unrestrained power to arrest: The ordinance “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.”

3. Per se unconstitutional: The Louisiana court’s construction made any obscene or opprobrious language toward an officer “fighting words” per se — without regard to the specific circumstances — making the ordinance overbroad.

Justice Blackmun’s dissent acknowledged that such ordinances “tend to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person,” calling the opportunity for abuse “self-evident.”

Why This Case Matters for Your § 1983 Case

Lewis v. City of New Orleans is essential for § 1983 claims involving arrests for speech directed at police:

• Verbal criticism of police is protected: You generally cannot be arrested for cursing at or verbally criticizing a police officer. Ordinances that criminalize such speech are unconstitutionally overbroad.
• False arrest claims: If you were arrested for “disorderly conduct,” “breach of peace,” or similar charges based primarily on words you directed at an officer, Lewis supports your claim that the arrest was unconstitutional.
• First Amendment retaliation: Officers who arrest people for verbal criticism are engaging in First Amendment retaliation. Justice Powell’s observation that such laws give officers “virtually unrestrained power to arrest” is powerful evidence that arrests based on speech are pretextual.
• Higher standard for officers: Justice Powell’s observation that trained officers should exercise “a higher degree of restraint” than ordinary citizens is frequently cited in excessive force and false arrest cases to argue that officers should not react aggressively to verbal provocation.

Key Takeaway

Laws criminalizing rude, profane, or critical language directed at police officers are unconstitutionally overbroad — officers are expected to exercise a higher degree of restraint than ordinary citizens, and arrests based primarily on verbal criticism of police are vulnerable to § 1983 false arrest and First Amendment retaliation claims.