City of Chillicothe v. Richard Lowery
| Decision Date | 13 July 1998 |
| Docket Number | 97 CA 2331,98-LW-2658 |
| Court | Ohio Court of Appeals |
| Parties | CITY OF CHILLICOTHE, Plaintiff-Appellee v. RICHARD LOWERY, Defendant-Appellant Case |
COUNSEL FOR APPELLANT: David H. Bodiker and Eric K. Fisher, 14 South Paint Street, Suite 54, Chillicothe, Ohio 45601-3202.
COUNSEL FOR APPELLEE: James E. Barrington, 41 East 4th Street Chillicothe, Ohio 45601.
DECISION
This is an appeal from a Chillicothe Municipal Court judgment of conviction and sentence. The court found Richard Lowery defendant below and appellant herein, guilty of indecent acts and language in violation of Chillicothe Revised Ordinance 509.08.
Appellant assigns the following error:
"THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING RICHARD N. LOWERY GUILTY OF VIOLATING REVISED ORDINANCE OF THE CITY OF CHILLICOTHE SECTION 509.08(A)."
The parties stipulated to the following facts as set forth in the police report. On April 9, 1997, Officer Alan J. Oaks responded to an unknown problem at appellant's residence. When Officer Oaks arrived at appellant's residence, appellant approached the officer, pointing his finger at the officer and yelling, "You motherfuckers better do something." Officer Oaks instructed appellant to lower his voice and to stop using profane language. Officer Oaks told appellant to explain why the officer had been called to appellant's residence. Appellant responded, "Fuck you, you motherfuckers never do anything." Officer Oaks noticed some children outside riding their bicycles and some neighbors outside of their homes. Officer Oaks again warned appellant to stop using profane language. Appellant responded, "Fuck you." Officer Oaks then arrested appellant for violating Chillicothe Revised Ordinance 509.08.[1]
On April 10, 1997, Officer freaks filed a criminal complaint against appellant in the Chillicothe Municipal Court, alleging that appellant used profane or indecent language "while in or upon any street, avenue, sidewalk, alley, bridge, or public place or being in a situation to be seen or observed from any street, avenue, alley, bridge, or public place.
On July 1, 1997, the trial court found appellant guilty of using indecent or profane language in violation of Chillicothe Revised Ordinance 509.08. On August 6, 1997, the trial court ordered appellant to pay a $25.00 fine. On August 25, 1997, appellant filed a timely notice of appeal.
In his sole assignment of error, appellant argues that the trial court erred by finding him guilty of using indecent or profane language. Specifically, appellant asserts that the United States and Ohio Constitutions' freedom of speech provisions prohibit punishment for his statements because his language did not constitute "fighting words." The city contends that appellant's language constituted "fighting words" and that the trial court correctly found appellant guilty of using indecent or profane language.
Initially, we recognize that the First Amendment to the United States Constitution protects an individual's freedom to speak as he thinks. Whitney v. California (1927), 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed.2d 1095 (Brandeis, J., concurring). The freedom to speak is not absolute, however. See, e.g., Miller v. California (1973), 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419. The First Amendment does not protect categories of speech that form "no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031.
Classes of unprotected speech and expression include: (1) speech that creates a clear and present danger;[2] (2) obscene speech;[3] (3) defamatory speech;[4] and (4) Fighting words."[5] If the speech falls within an unprotected category, the state may regulate and punish the speech. See Gooding v. Wilson (1972), 405 U.S. 518, 521-22, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (). If, however, the speech does not fall within an unprotected class, the First Amendment prohibits the state from regulating and punishing the protected speech unless the state demonstrates that regulation of the speech "is necessary to serve a compelling state interest and that [the regulation] is narrowly drawn to achieve that end." Widmar v. Vincent (1981), 454 U.S. 263, 268, 102 S.Ct. 269, 274, 70 L.Ed.2d 440; see, generally, State v. Phipps (1979), 58 Ohio St.2d 271, 278, 389 N.E.2d 1128, 1133; State v. Hoffman (1979), 57 Ohio St.2d 129, 387 N.E.2d 239; Columbus v. Kasper (1989), 61 Ohio App.3d 776, 780, 573 N.E.2d 1163, 1166. As the United States Supreme Court recognized in Gooding v. Wilson, supra, legislation punishing the use of language must be carefully drawn or authoritatively construed to punish only unprotected speech and must not be susceptible of application to speech protected by the First Amendment. Thus, the ultimate question in the case at bar is whether the city established that appellant's speech fell within one of the unprotected categories. See State v. Wood (1996), 112 Ohio App.3d 621, 627, 679 N.E.2d 735, 739; State v. Miller (1996), 110 Ohio App.3d 159, 162, 673 N.E.2d 934, 936.
The trial court found, and the city asserts, that appellant's language falls within the unprotected "fighting words" category. Appellant contends that the record does not support the trial court's conclusion. We find merit in appellant's argument.
The Ohio Supreme Court has long recognized that:
"[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be their utterance may not be made a crime unless they are `fighting words.'"
State v. Hoffman (1979), 57 Ohio St.2d 129, 131, 387 N.E.2d 239, 241. Fighting words are 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 (1974), 39 Ohio St.2d 107, 110, 314 N.E.2d 162, 164; see Chaplinsky, supra (describing fighting words as "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction."). In determining whether a defendant's speech constitutes fighting words, evidence in the record must demonstrate that the words inflicted injury upon the addressee or that the words would have likely provoked the average person to an immediate retaliatory breach of the peace. Hoffman, 57 Ohio St.2d at 133, 38~7 N.E.2d at 242.
Thus, we must determine whether evidence in the record demonstrates that appellant's words inflicted injury upon Officer Oaks or that appellant's words were likely to provoke the average person to an immediate retaliatory breach of the peace.
A significant number of cases address whether profane or indecent words constitute fighting words. In determining whether the profanity inflicted injury upon the addressee or incited others to violence, courts generally consider the following related factors: (1) the effect of the defendant's language on the addressee, i.e., whether the defendant used the profanity as a direct and intentional attack upon the addressee; (2) the tendency of the profanity to incite an immediate breach of the peace, to provoke a violent reaction, or to provoke immediate retaliation by the addressee; and (3) whether the defendant's language amounted to an immediate threat to inflict bodily harm upon the addressee. See State v. Miller (1996), 110 Ohio App.3d 159, 164, 673 N.E.2d 934, 937.
The following cases illustrate situations in which profanity constitutes fighting words. In State v. Wood, supra, the defendant had approached two Kent State University police officers, "provided officers the gesture of the middle finger, told the officers `fuck you' and continued loud abusive language for several minutes and the language continued upon several requests to [desist]." Id., 112 Ohio App.3d at 624, 679 N.E.2d at 737. In upholding the conviction, the appellate court reasoned that the defendant sought out the officers, intended to personally offend the officers, and repeatedly used the offending language and gesture after officers requested the defendant to stop. The court found that the defendant's language coupled with his conduct could have caused the officers to respond violently, and, thus, appellant's language and conduct constituted fighting words.
In State v. Dickey (1991), 75 Ohio App.3d 628, 600 N.E.2d 365, police officers were responding to a complaint at an apartment complex. Upon their arrival at the complex, the officers noticed a crowd had formed outside the apartment buildings. The defendant and other members of the crowd began arguing with the officers. While the officers were arresting one of the individuals from the crowd, another individual ran to the arresting officer and began to hit the officer. The defendant then emerged from the crowd and yelled at an officer, "What the fuck's going on." The officer asked the defendant to step back. The defendant responded, The officer again warned the defendant to step back, and the defendant again "taunted" the officer, at which point the officer arrested the defendant.
In upholding the conviction the court reasoned that the defendant's statements "were made at a time when the crowd was becoming agitated and belligerent," and that the defendant's conduct was "clearly increasing the volatility of the situation, not just by name calling, but...
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