c10:No. 86-243

Justice Powell,
with whom Justice O’Connor joins, and with whom The Chief Justice joins as to Parts I and II, and Justice Scalia joins as to Parts II and III, concurring in the judgment in part and dissenting in part.
The city of Houston has made it unlawful “for any person to ... in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” Code of Ordinances, City of Houston, Texas § 34 — 11(a) (1984). The Court today concludes that this ordinance violates the First and Fourteenth Amendments of the Constitution. In my view, the Court should not have reached the merits of the constitutional claims, but instead should have certified a question to the Texas Court of Criminal Appeals. I also disagree with the Court’s reasons for declining to abstain under the principle of Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941). Finally, although I agree that the ordinance as interpreted by the Court violates the Fourteenth Amendment, I write separately because I cannot join the Court’s reasoning.
I
This case involves a challenge to an ordinance designed to prevent interference with police officers in the performance of their duties. Constitutional analysis should not proceed until we determine the precise meaning of the ordinance in question. But this problem does not detain the Court, because it concludes that interpretation of the ordinance presents “no uncertain question of state law.” Ante, at 471. On the contrary, I think there is a serious question as to the meaning of the ordinance.
The challenged ordinance does not contain an explicit intent requirement. Both parties acknowledge, however, that the Texas Penal Code requires imputation of some culpability requirement. See Brief for Appellant 28-30; Brief for Ap-pellee 31. Texas Penal Code Ann. § 6.02(b) (1974) provides: “If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” The nature of this imputed mental state has a direct effect on the constitutional issue presented by this case. The Court apparently assumes that the requisite intent can be provided by a person’s intent to utter words that constitute an interruption. But it would be plausible for the Texas Court of Criminal Appeals to construe the intent requirement differently. For example, that court could conclude that conviction under the ordinance requires proof that the person not only intended to speak, but also intended to interfere with the officer’s performance of his duties.
This interpretation would change the constitutional questions in two ways: it would narrow substantially the scope of the ordinance, and possibly resolve the overbreadth question; it also would make the language of the ordinance more precise, and possibly satisfy the concern as to vagueness. At the least, such an interpretation would narrow the focus of the constitutional question and obviate the need for the Court’s broad statements regarding First Amendment protections of speech directed at police officers. It is not this Court’s role, however, to place an interpretive gloss on the words the Houston City Council has chosen. The ordinance is not a federal law, and we do not have the power “ ‘authoritatively to construe’ ” it. Gooding v. Wilson, 405 U. S. 518, 520 (1972) (quoting United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971)).
But we are not without means of obtaining an authoritative construction. Last year the Texas voters amended the Texas Constitution to provide that the “court of criminal appeals [has] jurisdiction to answer questions of state law certified from a federal appellate court.” Tex. Const., Art. 5, § 3-c. See Tex. Rule App. Proc. 214 (implementing this aspect of the constitutional provision). As Justice O’Connor explained recently, “Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when . . . the state courts stand willing to address questions of state law on certification from a federal court.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 510 (1985) (concurring). The Court repeatedly has emphasized the appropriateness of certification in cases presenting uncertain questions of state law. In such cases, certification can “‘save time, energy, and resources and hel[p] build a cooperative judicial federalism.’” Bellotti v. Baird, 428 U. S. 132, 150-151 (1976) (quoting Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974)).
In my view, the ambiguity of the ordinance, coupled with the seriousness of invalidating a state law, requires that we ascertain what the ordinance means before we address appel-lee’s constitutional claims. I therefore would vacate the judgment below and remand with instructions to certify the case to the Texas Court of Criminal Appeals to allow it to interpret the intent requirement of this ordinance. Accordingly, I dissent.
The Court concludes, however, that the case properly is before us, and so I address the remaining issues presented.
hH
Pullman abstention generally is appropriate when determination of an unsettled question of state law by a state court could avoid the need for decision of a substantial question of federal constitutional law. Although I agree with the Court that Pullman abstention is inappropriate in this case, I write separately because my reasons are somewhat different from those expressed by the Court.
Pullman abstention is inappropriate unless the state courts “provid[e] the parties with adequate means to adjudicate the controverted state law issue.” Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071, 1144 (1974). See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4242, p. 468 (1978). Cf. Railroad Comm’n v. Pullman Co., 312 U. S., at 501 (abstaining because the “law of Texas appears to furnish easy and ample means for determining the Commission’s authority”). It is not clear that Texas law affords a remedy by which Hill could obtain a state court interpretation of the ordinance. The only apparent means of securing such a ruling would be through an action for a declaratory judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq. (1986) (authorizing courts to grant declaratory judgments). But Texas law treats declaratory judgment actions as civil cases. Thus, they are appealable to the Texas Supreme Court rather than the Texas Court of Criminal Appeals. See, e. g., United Services Life Ins. Co. v. Delaney, 396 S. W. 2d 855 (Tex. 1965). Moreover, because the Texas Court of Criminal Appeals has exclusive appellate jurisdiction to decide questions of Texas criminal law, see Tex. Const., Art. V, §5, the Texas Supreme Court has held, with narrow exceptions, that injunctive or declaratory relief against criminal statutes is not available in civil cases. See Texas Liquor Control Board v. Canyon Creek Land Corp., 456 S. W. 2d 891, 894-896 (Tex. 1970). Thus, it is quite unlikely that a declaratory or injunctive action would bring Hill any determination of the meaning of the ordinance — either from a trial or an appellate court. In short, the only sure ways for the ordinance to be interpreted are by certification, see supra, at 473-475, and by appeals of criminal convictions under the ordinance. Neither of these routes provides Hill a means to obtain relief sufficient to justify Pullman abstention.
Aside from the barriers created by Texas procedure, the late stage at which the city of Houston raised this issue weighs heavily against abstention. Houston first suggested that abstention was appropriate after the Court of Appeals published its panel opinion invalidating the ordinance. As we have noted in a similar case, “[t]his proposal comes nearly three years after the filing of the complaint and would produce delay attributable to abstention that the Court in recent years has sought to minimize.” See Mayor of Philadelphia v. Education Equality League, 415 U. S. 605, 628 (1974). In sum, the late presentation of this claim, coupled with the doubts as to whether relief could be secured under Texas law, convinces me that Pullman abstention is inappropriate here.
Ill
I agree with the Court’s conclusion that the ordinance violates the Fourteenth Amendment, but do not join the Court’s reasoning.
A
The Court finds that the ordinance “deals not with core criminal conduct, but with speech.” Ante, at 460. This view of the ordinance draws a distinction where none exists. The terms of the ordinance — “oppose, molest, abuse or interrupt any policeman in the execution of his duty” — include general words that can apply as fully to conduct as to speech. It is in this respect that Lewis v. City of New Orleans, 415 U. S. 130 (1974), is clearly distinguishable. In that case the New Orleans ordinance made it 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.’” Id., at 132 (quoting New Orleans Ordinance 828 M. C. S. §49-7).
On its face, the New Orleans ordinance criminalizes only the use of language. Justice Brennan, speaking for the Court in Lewis, explicitly noted this, stating that the ordinance “punishe[d] only spoken words.” Id., at 134. By contrast, the ordinance presented in this case could be applied to activity that involves no element of speech or communication. For example, the ordinance evidently would punish individuals who — without saying a single word — obstructed an officer’s access to the scene of an ongoing public disturbance, or indeed the scene of a crime. Accordingly, I cannot agree with the Court that this ordinance punishes only speech.
I do agree that the ordinance can be applied to speech in some cases. And I also agree that the First Amendment protects a good deal of speech that may be directed at police officers. On occasion this may include verbal criticism, but I question the implication of the Court’s opinion that the First Amendment generally protects verbal “challenged] directed at police officers,” ante, at 461. A “challenge” often takes the form of opposition or interruption of performance of duty. In many situations, speech of this type directed at police officers will be functionally indistinguishable from conduct that the First Amendment clearly does not protect. For example, I have no doubt that a municipality constitutionally may punish an individual who chooses to stand near a police officer and persistently attempt to engage the officer in conversation while the officer is directing traffic at a busy intersection. Similarly, an individual, by contentious and abusive speech, could interrupt an officer’s investigation of possible criminal conduct. A person observing an officer pursuing a person suspected of a felony could run beside him in a public street shouting at the officer. Similar tactics could interrupt a policeman lawfully attempting to interrogate persons believed to be witnesses to a crime.
In sum, the Court’s opinion appears to reflect a failure to apprehend that this ordinance — however it may be construed — is intended primarily to further the public’s interest in law enforcement. To be sure, there is a fine line between legitimate criticism of police and the type of criticism that interferes with the very purpose of having police officers. But the Court unfortunately seems to ignore this fine line and to extend First Amendment protection to any type of verbal molestation or interruption of an officer in the performance of his duty.
B
Despite the concerns expressed above, I nevertheless agree that the ambiguous terms of this ordinance “confe[r] on police a virtually unrestrained power to arrest and charge persons with a violation.. . . The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.” Lewis v. City of New Orleans, supra, at 135-136 (Powell, J., concurring in result). No Texas court has placed a limiting construction on the ordinance. Also, it is clear that Houston has made no effort to curtail the wide discretion of police officers under the present ordinance. The record contains a sampling of complaints filed under the ordinance in 1981 and 1982. People have been charged with such crimes as “Failure to remain silent and stationary,” “Remaining,” “Refusing to remain silent,” and “Talking.” 789 F. 2d 1103, 1113-1114 (CA5 1986) (en banc). Although some of these incidents may have involved unprotected conduct, the vagueness of these charges suggests that, with respect to this ordinance, Houston officials have not been acting with proper sensitivity to the constitutional rights of their citizens. When government protects society’s interests in a manner that restricts some speech the law must be framed more precisely than the ordinance before us. Accordingly, I agree with the Court that the Houston ordinance is unconstitutional.
It is difficult, of course, specifically to frame an ordinance that applies in
“areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order.” Smith v. Goguen, 415 U. S. 566, 581 (1974).
In view of the difficulty of drafting precise language that never restrains speech and yet serves the public interest, the attempts of States and municipalities to draft laws of this type should be accorded some leeway. I am convinced, however, that the Houston ordinance is too vague to comport with the First and Fourteenth Amendments. As I explained supra, at 473-474, it should be possible for the present ordinance to be reframed in a way that would limit the present broad discretion of officers and at the same time protect substantially the city’s legitimate interests. For example, the ordinance could make clear that it applies to speech only if the purpose of the speech were to interfere with the performance by a police officer of his lawful duties. In this situation, the difficulties of drafting precisely should not justify upholding this ordinance.
IV
Although I believe that the proper course is for the Court to vacate the judgment of the Court of Appeals, I “bo[w] to the Court’s decision that the case is properly before us,” Brown Shoe Co. v. United States, 370 U. S. 294, 374 (1962) (Harlan, J., concurring in part and dissenting in part), and concur in the judgment of affirmance.
At least one Texas appellate court has concluded that this section applies to municipal ordinances. See Pollard v. State, 687 S. W. 2d 373, 374 (Tex. App. 1985) (pet. ref’d, Pollard v. State, No. 05-83-01161 Cr. (Jan. 29, 1986)).
This case demonstrates two advantages of certification over the more traditional Pullman abstention‘procedure. First, certification saves time by sending the question directly to the court that is empowered to provide an authoritative construction of the statute. Second, certification obviates the procedural difficulties that may hinder efforts to obtain declaratory judgments from state trial courts. See infra, at 476-477.
Cf. Brown Shoe Co. v. United States, 370 U. S. 294, 374 (1962) (Harlan, J., dissenting in part and concurring in part); Gillespie v. United States Steel Corp., 379 U. S. 148, 170 (1964) (Stewart, J., concurring). See also Longshoremen v. Davis, 476 U. S. 380, 403 (1986) (Rehnquist, J., concurring in part and concurring in judgment).
The Court concludes that Pullman abstention is inappropriate for two reasons. First, it suggests that this Court should be “particularly reluctant to abstain in cases involving facial challenges based on the First Amendment.” Ante, at 467. The Court supports this conclusion with a citation to Dombrowski v. Pfister, 380 U. S. 479 (1965). I see nothing in that case that supports such a broad principle. The Dombrowski Court declined to abstain because “the interpretation ultimately put on the [challenged state] statutes by the state courts is irrelevant,” id., at 490, and because “no readily apparent construction suggested] itself as a vehicle” for curing the constitutional problem with the statute, id., at 491. Both of these rationales are straightforward applications of the general rule that Pullman abstention is appropriate only when determination of an uncertain question of state law would obviate the need for the federal court to decide a substantial question of federal constitutional law.
The Court’s second reason for not abstaining is that it believes the statute is not “ ‘fairly subject to an interpretation which will. . . substantially modify the federal constitutional question.’” Ante, at 468 (quoting Harman v. Forssenius, 380 U. S. 528, 534-535 (1965)). See supra, at 473-474, for my disagreement with this view.
1 note that the adequacy of state procedures is examined much more strictly in cases seeking Pullman abstention than in cases seeking Younger abstention. Compare, e. g., Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 14-17 (1987).
The first definition of “challenge” in the 1980 edition of the American Heritage Dictionary is “[a] call to engage in a contest or fight.” The Court implies that municipalities can punish an attempt to interfere with police officers only if it “physically obstruct[s] the officer’s investigation,” ante, at 463, n. 11, or if it constitutes “fighting words” within the meaning of Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), see ante, at 464, n. 12. This implication troubles me because, as I have indicated in the text supra this page, there can be many situations where a State — in the public interest — should have the right to punish speech directed at police officers that does not fall within either of these exceptions.

Passage view · GavelSight