I found a Texas Attorney General Opinion that explains it - https://www.texasattorneygeneral.gov/op ... jm0900.htmBeiruty wrote:Why non-violent disorderly conduct is cause to loose your CHL for 5 yrs?!
42.01 is unconstitutional under the 1stA. Since the "feel of peace" of the audience is not a cause to sensor the actor.
Basically the speech used must be commonly understood to be inciting someone to fight.
So your question mischaracterizes what the statute is designed to punish. It's not merely non-violent conduct but conduct likely to incite violence.The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.... Derisive and annoying words can be taken as coming within the purview of the statute ... only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace.
See Gooding v. Wilson, supra, at 522, quoting with approval the Supreme Court of New Hampshire, 18 A.2d 754, 758, 762 (1941). See generally, Cohen v. California, 403 U.S. 15, 20 (1971); Bachellar v. Maryland, 397 U.S. 564, 567 (1970); and Gooding, supra. The "line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," Speiser v. Randall, 357 U.S. 513, 525 (1958).
Speech punishable under the Penal Code provision does not include language merely harsh and insulting, see Gooding, supra at 525, and it should not include speech, actual or symbolic, that is only "inappropriate," "naughty," "disgusting," "repulsive," "tactless," "gross," or "appalling." Annot., 2 A.L.R.4th 1331. Conviction under a statute specifying a "breach of the peace" as an element of the offense must be based on jury instructions including an admonition that proof of "actual or threatened violence is essential." Woods v. State, 213 S.W.2d 685, 687 (Tex.Crim.App.1948). In other words, anything short of the use of "fighting words" does not constitute a breach of the statute. See Jimmerson v. State, 561 S.W.2d 5 (Tex.Crim.App.1978). Speech is protected against punishment unless "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Terminello v. Chicago, 337 U.S. 1, 4 (1949).