City of Columbus v. Fraley

• Citation: 70 O.O.2d 335,41 Ohio St.2d 173,324 N.E.2d 735
• Decision Date: 12 March 1975
• Docket Number: 74-177,Nos. 74-125,s. 74-125
• Parties: , 70 O.O.2d 335 CITY OF COLUMBUS, Appellee, v. FRALEY, Appellant. CITY OF COLUMBUS, Appellee. v. BEAL, Appellant.
• Court: United States State Supreme Court of Ohio

Page 173

41 Ohio St.2d 173

324 N.E.2d 735, 70 O.O.2d 335

CITY OF COLUMBUS, Appellee, v. FRALEY, Appellant.

CITY OF COLUMBUS, Appellee. v. BEAL, Appellant.

Nos. 74-125, 74-177.

Supreme Court of Ohio.

March 12, 1975.

Syllabus by the Court

1. To be legally obscene, spoken language must appeal to a prurient interest in sex, as that interest is defined by applying contemporary community standards, and must be, in some significant way, erotic.

2. Where a person has been charged and convicted solely for the use of obscene language, affirmance of the judgment of conviction upon a theory that the language constituted fighting words denies such person due process of law, in violation of the Fourteenth Amendment to the United States Constitution.

3. In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.

With one exception, the issues raised by these appeals are identical.

The facts in case No. 74-177 are:

On September 20, 1972, appellant, Irvin Dana Beal, participated in an anti-war demonstration in downtown Columbus. The focus of the protest was an appearance at the R. K. O. Palace Theater by then Vice President Spiro T. Agnew.

During the course of the demonstration, the group was harassed by a street preacher, who at one point stated: 'Look at you. You're defeated people.' Appellant responded: 'And how come there are so many of us and only one of you, you old motherfucker.'

Appellant was arrested and charged for 'using obscene language on a public street,' in violation of Section 2327.01 of the Columbus Code of Ordinances. The jury found appellant guilty, and judgment was entered upon the verdict. Upon appeal, the judgment was affirmed, on the theory that appellant's language constituted 'fighting words.'

The facts in case No. 74-125 are:

On November 1, 1971, Columbus police investigated two complaints by a white family in an interracial neighborhood. On the first occasion, two officers entered the area to investigate; on the second, they were joined by a police sergeant and two additional officers.

While the second complaint was being investigated, an argument broke out between the police and black residents of the neighborhood, one of whom was appellant, Imogene Fraley. According to the testimony of police officials, appellant became 'boisterous and loud,' called the officers 'motherfucker' and 'pigs,' and made the statement that '* * * if (blacks) had called the police, they wouldn't have got this much motherfucking police protection.' When two of the officers attempted to place the appellant under arrest, she allegedly started swinging her arms, yelled, kicked them, broke away, and ran across the street into her house.

Appellant was subsequently arrested and charged with disorderly conduct, in violation of Section 2327.01 of the Columbus Code of Ordinances, and for using violence against a police officer, in violation of Section 2355.01 of the Columbus Code. The trial judge instructed the jury that to find appellant guilty of violating Section 2327.01, it would have to determine that her language was obscene or profane. The jury found her guilty on both charges, and judgment was entered upon the verdict. Upon appeal, the judgment was affirmed. Appellant's conviction for violating Section 2327.01 was affirmed on the theory that her language constituted 'fighting words.'

The causes are now before this court pursuant to the allowance of motions to certify the records.

James J. Hughes, Jr., City Atty., Daniel W. Johnson, Michael C. Matuska and Phyllis F. Kunkler, Columbus, for appellees.

Alexander M. Spater, Columbus, for appellant Fraley.

John Quigley, Columbus, for appellant Beal.

PAUL W. BROWN, Justice.

Appellants were convicted for the alleged use of obscene language on a public street. Upon appeal, both convictions were affirmed, on the theory that the words in question were 'fighting words.' We reverse.

Section 2327.01 of the Columbus Code of Ordinances provides that:

'No person shall disturb the good order and quiet of the city by * * * using obscene or profane language in any street or other public place * * *.'

In applying such statutory proscription, appellants could properly be convicted only if the language they used was legally obscene. Clearly, such was not the case.

In Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, the defendant was arrested for wearing a jacket bearing the words 'Fuck the Draft.' In reversing his conviction, the United States Supreme Court declared, at page 20, 91 S.Ct. at page 1785:

'Whatever else may be necessary to give rise to the states' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.'

In Hess v. Indiana (1973), 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303, the defendant was arrested for yelling, during the course of an anti-war demonstration: 'We'll take the fucking street later,' or 'We'll take the fucking street again.' In reversing his conviction, the United States Supreme Court declared, at page 107, 94 S.Ct. at page 328:

'It is clear that the Indiana court specifically abjured any suggestion that Hess' words could be punished as obscene under Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and its progeny. Indeed, after Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 418 (1971), such a contention with regard to the language at issue would not be tenable. * * *'

This court his consistently applied the definitions of obscenity laid down by the United States Supreme Court. In Columbus v. Williams (1973), 36 Ohio St.2d 7, 302 N.E.2d 582, we reversed a conviction for the alleged violation of R.C. 2905.301, which prohibits the utterance of 'obscene or licentious language in the presence or hearing of a female * * *.' In Columbus v. Schwarzwalder (1974), 39 Ohio St.2d 61, 313 N.E.2d 798, we reversed two convictions for the alleged violation of Section 2327.01 of the Columbus Code of Ordinances, the ordinance before us in the present cases. This court has recognized as we noted in Cincinnati v. Karlan (1974), 39 Ohio St.2d 107, 110, 314 N.E.2d 162, 164, that 'no spoken words are obscene unless they serve to erotically stimulate.'

Though Roth v. United States, supra, has been supplanted by Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, certain prerequisites to a finding of obscenity remain the same. At the very least, obscene language must appeal to a prurient interest in sex, as that interest in defined by applying contemporary community standards. '(S)uch expression must be, in some significant way, erotic.' Cohen, supra. As a matter of law, the language used by the appellants herein falls short of that proscription.

II

Appellants were arrested, tried, and convicted for the use of obscene language. In both cases, the Court of Appeals affirmed, not because the words used were obscene, but rather because they constituted 'fighting words.' Such a result denies the appellants due process of law.

Obscene expression and fighting words are separate and distinct exceptions to the freedom of speech protected by the First Amendment. Obscene expression, as indicated herein, must involve an appeal to a prurient interest in sex. Fighting words, on the other hand, are those words which 'by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace.' Cincinnati v. Karlan, supra, 39 Ohio St.2d at 110, 314 N.E.2d at 164. In making a determination whether specific language constitutes fighting words, it is irrelevant that such words may also be legally obscene.

Appellants were charged and tried on an obscene lauguage theory, and defended against such a charge. The trial judge in each case instructed the jury as to the meaning of obscene language, but not as to fighting words. Nevertheless, the Court of Appeals affirmed both convictions on a fighting-words theory. Thus, appellants stand convicted on charges to which they have had no opportunity to respond.

In Cole v. Arkansas (1948), 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644, the defendants were charged under an Arkansas statute which prohibited the use of force and violence, in section one, and the promotion of an unlawful assemblage, in section two. The trial court instructed the jury on section two only, and the defendants were convicted. Upon appeal, the Supreme Court of Arkansas affirmed, not on the basis of section two, but on the theory that the defendants had violated section one.

The United States Supreme Court reversed, declaring, at page 201, 68 S.Ct. at page 517:

'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. * * * If, as the state Supreme Court held, petitioners were charged with a violation of § 1, it is doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that they were not tried for or found guilty of it. It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. * *...