City of Cincinnati v. Black

• Decision Date: 13 June 1966
• Citation: 220 N.E.2d 821,8 Ohio App.2d 143
• Parties: , 37 O.O.2d 28 CITY OF CINCINNATI, Appellee, v. BLACK, Appellant.
• Court: Ohio Court of Appeals

Page 143

8 Ohio App.2d 143

220 N.E.2d 821, 37 O.O.2d 28

CITY OF CINCINNATI, Appellee, v.BLACK, Appellant.

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

June 13, 1966.

Ralph Cors and Stephen Cohen, Cincinnati, for appellee.

J. B. Stoner, Atlanta, Ga., and Charles F. Buck, Dayton, for appellant.

HOVER, Judge.

Appellant, defendant below, was convicted in the Municipal Court of Cincinnati of violating Section 901-s3 of the Ordinances thereof.The section is entitled 'Scurrilous Pamphlet' and reads as follows:

'Whoever shall offer for sale or sell or give away any pamphlet or paper which contains an article or articles subjecting to ridicule or contempt any class or group of citizens on account of its or their race or religious belief, or which in any manner tends to promote racial hatred or religious bigotry, shall be fined not exceeding fifty dollars ($50.00).'

The specific charge was that the appellant'unlawfully gave away pamphlets and papers subjecting certain classes of citizens to ridicule on account of their race and religious beliefs, which literature also tends to promote racial hatred and religious bigotry.'

The case was tried to the court, the defendant not being constitutionally entitled to a jury.Upon trial he was convicted and fined.He did not offer any defense, relying solely upon the claim that the ordinance abridged his constitutionally protected rights under the First and Fourteenth Amendments of the federal Constitution.

The evidence is quite simple.Police visited the office of the National States Rights Party in the city of Cincinnati, requested any literature available for distribution, and received from the defendant various items of printed material collectively identified in the record as ExhibitNo. 3.The court found, without specifying which, that certain portions of the material included in ExhibitNo. 3 were scurrilous.If such a finding were to be taken as the only basis for the conviction, the judgment would be obviously invalid for the reason that the word 'scurrilous' appears only in the title of the ordinance.The title of the legislative act cannot be deemed to constitute the act itself.There is nothing scurrilous in the material as that phrase is defined by law.(See 38 Words and Phrases 371, and, more particularly, Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191.)However, the affidavit does charge an offense in the words of the body of the ordinance, and we must assume that the trial court considered the charge in relation to the affidavit and the prohibited act rather than its title description.The ordinance actually defines two offenses, and the affidavit alleges violation of both its branches.The ordinance makes it an offense to give away pamphlets subjecting to ridicule or contempt a class or group of citizens on account of race or religious belief.The ordinance also makes the act unlawful if the pamphlet tends to promote racial hatred and religious bigotry irrespective of any contempt or ridicule.

Since the court did not specify what portion or portions of the allegedly unlawful material constituted the violation, some consideration of ExhibitNo. 3, upon which the conviction is based, is necessary.Although the material is too extensive to justify complete reproduction here, it may be described generally as follows:

1.A tabloid-style newspaper entitled 'The Thunderbolt' consisting of twelve pages;

2.A printed sheet of paper entitled 'Propagandists Conceal Facts on Race.'Subheadings are 'Free Discussion of Race Question is Prevented' and 'Scientist Reveals that Negro Blood Differs From White.'It carries pictures of an Australian Bushman and a South African Hottentot, which purport to show physical characteristics unique to such groups.It also carries a photograph of a boy and a woman, the boy allegedly being afflicted with 'Sickle Cell' which is described as a blood disease peculiar to one race;

3.A mimeographed compilation entitled 'Arrest by Race, 1956, as Reported by The FBI.'This purports to demonstrate a disproportionate percentage of arrests for various major and minor crimes in one racial group;

4.A mimeographed paper entitled 'The Truth About Those Negro Heroes' purporting to demonstrate by numbers and by attributed quotation that the racial group mentioned is lacking in military reliability, discipline and courage;

5.This appears to be a reprint of a news article appearing in the Chicago Tribune November, 1963.The article is headlined 'Negro League Aids Indicted in Extortion.'

All the material carries the stamped imprint of the National States Rights Party at the business address where it was received incident to the present prosecution.

The principal part of the exhibit is 'The Thunderbolt'(No. 1 above).This has the form and appearance of a tabloid newspaper.It claims to be 'the official white racial organ of the National States Rights Party.'It is apparently published monthly in Birmingham, Alabama.It cannot be reproduced in full here but it can be somewhat abstracted.The lead articles concern the McCarran-Walter Immigration Bill and pending legislation before the Congress to amend the existing law to eliminate immigration quotas.The amendments have since become law.The article sets out, as its principal objection to the proposed changes, that persons of one religious or cultural group will be the primary beneficiaries thereof.It alleges that as amended the law would tend to encourage the migration of Communist citizens of one religious belief to this country.It urges persons to write their Congressmen.

The other article on the front page urges withdrawal from the United Nations on grounds related to race and religion.Also included in the exhibit is an article relative to the presence of Negroes in the United States Senate and House during reconstruction days.It forecasts the possibility of Negroes again being elected to important positions in government.

Another article alleges that certain food producers refused to reveal the amounts paid religious officials for special foods.Another article points out the possible effect of federal voting registrars in southern states.Another article points out that persons can be hired and fired on the basis of race prior to the effective date of Civil Rights Laws.Another, that the Republican Party can be expected to nominate a Negro for the office of Vice President.Another article advocates confiscation of the property of a religious group and its redistribution.

The entire publication is a hodgepodge of racial, religious and political discussions and questions with emphasis on Negroes as a race and Jewish people as a religious group.It solicits membership in the National States Rights Party.It includes a news article concerning demonstrations by the party in Cincinnati against a Soviet medical exhibit at Music Hall-an incident that was covered in depth by news media.

The constitutional question is fairly presented by the record and requires a consideration again of the extent to which criminal sanctions may be enforced in spite of the guarantee of free press, free expression, and free assembly in both the federal and state Constitutions.Before passing to this question, however, it should be noted that the National States Rights Party is not a figment of some propagandist's imagination.Such a political party does exist, however insignificant, however extremist, and however counter it might be to the political beliefs and activities of overwhelming millions of citizens.As late as the 1964 presidential election this party received a recordable number of votes in three states where it was recognized.The fact that it is not an officially recognized party in the state of Ohio, where only two parties are recognized, will have no impact on the right to meet, speak and proselytize legally in this state and in the city of Cincinnati.

It is thus seen that the ordinance undertakes to control the extent of free expression in the fields of religious and political affairs, two fields which have been given the widest possible latitude by constitutional interpretation; and also in the field of race relations which, while not written directly into either the federal or state Constitutions, has nevertheless in present day society, by judicial interpretation of the Fourteenth Amendment and by legislative enactment, received wide-spread public attention.The ordinance makes it an offense to communicate hatred and bigotry in the fields of race and religion.Bigotry and hatred reflect a mental attitude which does not necessarily become translated into human behavior.Great honor is almost universally paid to the special commandment 'that ye love one another,' but no means has yet been found or attempted to compel this highly commendable viewpoint by law.Obviously any attempt to do so would border very closely on thought control which is resisted (even to the extent of permitting bigotry and intolerance) by every legal precept we know.

The principle is aptly expressed by Jefferson's statement inscribed in the monument to his memory in the national capital-'I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.'The tyranny over the mind of man, however misguided or myopic that mind may be, becomes no less, even if it takes the form of meaning that, while one may think as he wishes, he may not communicate his evil or unsocial or intolerant thoughts to another, particularly on the subject of race or religion, and most particularly not in the city of Cincinnati where there is an ordinance making any such written communication a crime.

Because one may not be criminally prosecuted for expressing feelings or convictions-even strong disapproval or intolerance of another because of his or his group's particular status-it does not mean that it is impossible to limit the right of free speech.Such areas of...