
    253 So.2d 58
    Jim BAINES v. CITY OF BIRMINGHAM.
    6 Div. 41.
    Court of Criminal Appeals of Alabama.
    Sept. 14, 1971.
    George C. Longshore, Birmingham, for appellant.
    J. M. Breckenridge, and William C. Walker, Birmingham, for the City of Birmingham.
   PER CURIAM.

Reversed and remanded on authority of Baines v. City of Birmingham, 403 U.S. 927, 91 S.Ct. 2246, 29 L.Ed.2d 706.

CATES, Judge

(dissenting).

The Supreme Court of the United States on June 21, 1971 granted certiorari and vacated our prior judgment, 46 Ala.App. 267, 240 So.2d 689, with costs. In the same order the cause was remanded to us “for reconsideration in the light of * * * Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, decided June 7, 1971.”

We have so reconsidered the case and I am emphatically of the opinion that Cohen, supra, is in no wise dispositive of the appeal of instant concern. The majority opinion in Cohen, supra, was expressly careful not to deprive the States of the freedom to ban “fighting words” as illustrated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

I find no need to elaborate the clear distinction between Baines’ conduct and words and Cohen’s.

As applied here the city ordinance is not designed to stifle freedom of speech but rather to stifle incipient free-for-alls. In this I think Chaplinsky, supra, is apt authority to affirm. I trust that the City will apply to the Supreme Court of Alabama to review the instant order of the majority.  