Cincinnati v. Thompson, C-920619

• Decision Date: 30 June 1994
• Docket Number: No. C-920619,C-920619
• Citation: 643 N.E.2d 1157,96 Ohio App.3d 7
• Parties: City of CINCINNATI, Appellant, v. THOMPSON et al., Appellees. *
• Court: Ohio Court of Appeals

Page 7

96 Ohio App.3d 7

643 N.E.2d 1157

City of CINCINNATI, Appellant, v. THOMPSON et al., Appellees. ^*

No. C-920619.

Court of Appeals of Ohio, First District, Hamilton County.

Decided June 30, 1994.

Syllabus by the Court

1. Cincinnati Municipal Code 907-5, which makes it a crime to trespass on the premises of a "medical facility," is not, under the First Amendment, invalid as applied to abortion protestors who refused to leave the grounds of a privately owned medical clinic when requested to do so by clinic personnel; although the conduct of the protestors was sufficiently imbued with communicative elements to constitute expressive conduct, the protestors had no First Amendment right to engage in expressive conduct on the grounds of the privately owned clinic.

2. The definition provided for "medical facility" in Cincinnati Municipal Code 907-5 was improperly held to make the ordinance unconstitutionally overbroad and vague, when the ordinance, as applied to specific abortion protestors, did not sweep protected conduct within its prohibitions, when the protestors failed otherwise to demonstrate that the ordinance reached a substantial amount of protected conduct, and when fair notice was given to the protestors that their conduct was proscribed by the ordinance.

3. Cincinnati Municipal Code 907-5 is not subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it does not impinge upon a fundamental right; to survive an equal-protection challenge, the ordinance need only rationally further a legitimate governmental interest.

4. Cincinnati Municipal Code 907-5 rationally advances at least two legitimate governmental interests: (1) the facilitation of access to health care generally 5. Cincinnati Municipal Code 907-5 was erroneously held to classify, select, and single out for special treatment a narrow group of individuals who oppose or protest abortion; by its terms, the ordinance classifies or distinguishes solely on the basis of the particular site of a trespass, not on the basis of the identity of the trespassers, their motives for trespassing, or any viewpoints they may be seeking to express.

and to reproductive health care for women specifically, and (2) the discouragement of recidivist conduct.

6. Cincinnati Municipal Code 907-5 is an appropriate exercise of municipal home rule that is not in conflict with a general state law and that does not, therefore, violate Section 3, Article XVIII of the Ohio Constitution.

Fay D. DuPuis, City Sol., Terrence R. Cosgrove, City Prosecutor, and Karla J. Burtch, Cincinnati, for appellant.

Thomas W. Condit, Cincinnati, for appellees Charlotte Thompson, Mae Breadon, Adele Sakler, Catherine Federspiel, Kim Bush, Allen Rainey, Douglas Robinson, David Burridge, Michael Meyer, Richard Ulbrich, Lawrence Garrison, John Parker, Mathew Keck, Robert Rush, Raymond Loebker, Glen Montgomery, Joyce Anderson, Marcella Tilford, Janet Grazani, Doris Sakler, Vivan Skougard, Teresa Hurvel, Zoe Vankleek, Kristina Kelly, Marlene Avey, Allyse Kerns, Stephanie Hunley, Carolyn Knapschaeter, Orville Macomber, Todd Thompson, Robert Loreaux, Gerald Garno, Andrew Corier, Wilbert Grimme, and Steven Borchert.

Alphonse A. Gerhardstein, Cincinnati, urging reversal for, amici curiae, Cincinnati Women's Political Caucus; Nat. Council of Jewish Women (Ohio Section); Planned Parenthood Ass'n of Cincinnati, Inc.; Women for Women of Cincinnati; Women's Med+ Centers, Ltd.; Cincinnati Women's Services; Friends of Women's Studies Boards; and Cincinnati Chapter of the Nat. Organization for Women.

David M. Smolin, Associate Professor of Law, Cumberland Law School, Samford University, Birmingham, AL, urging affirmance, for amici curiae, Rutherford Institute of Ohio; Right to Life of Greater Cincinnati, Inc.; Women Exploited By Abortion; Couple to Couple League Intern., Inc.; Greater Cincinnati Chapter Knights of Columbus; and Archbishop of Cincinnati.

PER CURIAM.

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Municipal Court, the transcript of the proceedings, the briefs and the arguments of counsel.

At issue in this appeal is the constitutionality of Cincinnati Municipal Code 907-5 ("CMC 907-5"), which makes it a crime to trespass "on the land or premises of a medical facility" ¹ and allows for the imposition of penalties more severe than those provided for violations of the statewide general prohibition against criminal trespass contained in R.C. 2911.21 and R.C. Chapter 2929. In its four assignments of error, the plaintiff-appellant, the city of Cincinnati ("the city"), challenges each of the four grounds upon which a judge of the Hamilton County Municipal Court relied in declaring the ordinance invalid on its face: (1) that the ordinance violates the Free Speech Clause of the First Amendment by singling out anti-abortion activists because of their views and, based upon the subject matter of their expression, subjecting them to harsher penalties than those applicable to trespassers at nonmedical facilities; (2) that the ordinance's definition of "medical facility" is "on its face * * * unconstitutionally vague and overbroad such that reasonable persons cannot be sure which locations within the City might be covered"; (3) that the ordinance violates the equal-protection guarantees of the state and federal Constitutions by singling out, without any rational basis for doing so, anti-abortion activists who trespass at abortion clinics; and (4) that the provision for mandatory penalties in the ordinance is in contravention of Section 3, Article XVIII of the Ohio Constitution to the extent that it conflicts with R.C. 2929.51, a general law of this state that makes discretionary the imposition of a term of incarceration or a fine for a misdemeanor offense. Confining ourselves solely to the questions raised about the validity of the ordinance in the context of the record generated in the municipal court, and expressing no views on the content of the ongoing public debate about abortion, we sustain all four assignments of error, reverse the judgments entered below, and remand this cause for further proceedings in accordance with law.

On June 19, 1992, not long after CMC 907-5 was enacted, the defendants-appellees, anti-abortion activists, were arrested and charged with violating the ordinance when they refused to leave the premises of the Women's Medical Center ("WMC") on East McMillan Street in Cincinnati, Ohio, after being asked to do so by personnel at the facility. The thirty-five cases were consolidated, and the defendants moved to dismiss the charges on the ground that the ordinance violated various provisions of both the Ohio Constitution and the United States Constitution. On the basis of an evidentiary hearing and the arguments of

counsel, the municipal court ordered the dismissal of the charges, and this appeal by the city followed.

FIRST AMENDMENT

We address first the challenge presented in the city's fourth assignment of error to the trial court's determination that the ordinance violates the First Amendment. We find this challenge to be well taken.

The First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides in relevant part that "Congress shall make no law * * * abridging the freedom of speech * * *." Although the First Amendment, by its terms, forbids only the abridgment of "speech," the United States Supreme Court has "long recognized that its protection does not end at the spoken or written word * * * [and] that conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.' " Texas v. Johnson (1989), 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342, 353 (quoting Spence v. Washington [1974], 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842, 846).

While recognizing that "virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose--if only expressive of the fact that the actor disagrees with the prohibition," Barnes v. Glen Theatre, Inc. (1991), 501 U.S. 560, 576, 111 S.Ct. 2456, 2466, 115 L.Ed.2d 504, 518 (Scalia, J., concurring), the court has "rejected 'the view that [a] * * * limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.' " Johnson, supra, 491 U.S. at 404, 109 S.Ct. at 2539, 105 L.Ed.2d at 353 (quoting United States v. O'Brien [1968], 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672, 679). The determination of whether conduct is sufficiently imbued with communicative elements to bring the First Amendment into play entails an inquiry into whether "[a]n intent to convey a particularized message was present, and [whether] * * * the likelihood was great that the message would be understood by those who viewed it." Spence, supra, 418 U.S. at 410-411, 94 S.Ct. at 2730, 41 L.Ed.2d at 847; accord Johnson, supra, 491 U.S. at 404, 109 S.Ct. at 2539, 105 L.Ed.2d at 353.

Applying the standard set forth in Spence, supra, we hold that the conduct that led to the arrests of the defendants under CMC 907-5 was sufficiently imbued with communicative elements to constitute expressive conduct. Therefore, the defendants were entitled to invoke the First Amendment in a prosecution for a violation of the ordinance.

The First Amendment has never conferred an absolute right to engage in expressive conduct whenever, wherever or in whatever manner a speaker may The right to engage in expressive conduct is at its most attenuated when the forum is private property, because the rights of the property owner and his invitees are brought into play. ² The United States Supreme Court has recognized that the interest in personal autonomy that underlies the First Amendment right of free...