City of Kent v. Kelley, 74-1033

• Decision Date: 12 November 1975
• Docket Number: No. 74-1033,74-1033
• Citation: 337 N.E.2d 788,44 Ohio St.2d 43,73 O.O.2d 230
• Parties: , 73 O.O.2d 230 CITY OF KENT, Appellee, v. KELLEY, Appellant.
• Court: Ohio Supreme Court

Page 43

44 Ohio St.2d 43

337 N.E.2d 788, 73 O.O.2d 230

CITY OF KENT, Appellee, v. KELLEY, Appellant.

No. 74-1033.

Supreme Court of Ohio.

Nov. 12, 1975.

Shortly after midnight, in the early hours of May 22, 1971, after law enforcement officers had dispersed a crowd of people gathered in the area of North Water Street in Kent, a police officer noticed several persons behind a glass door of one of the buildings nearby. When the officer rapped on the door of the building, defendant, who was standing in the street in an area where several other persons and police were present, shouted 'stay away from the fucking door,' 'get the fuck out of here,' 'what do you think you're doing?' ¹ Defendant was arrested and charged with violation of a Kent ordinance against disorderly conduct. ² Following trial in the Portage County Municipal Court, Kent Branch, defendant was found guilty of 'disorderly conduct,' ³ and fined.

Defendant's appeal to the Court of Appeals resulted in affirmance of his conviction, and his subsequent appeal to this court was dismissed.

The Supreme Court of the United States granted certiorari, vacated the judgment and remanded the cause to the Court of Appeals for Portage County 'for further consideration in light of Lewis v. City of New Orleans' (1974), 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214. On remand, the Court of Appeals for Portage County adhered to its former judgment, and affirmed 'the judgment of the trial court' on the basis of Cincinnati v. Karlan (1974), 39 Ohio St.2d 107, 314 N.E.2d 162.

The allowance of defendant's motion to certify the record and his appeal as of right bring the cause to this court for review.

Robert W. Hart, Director of Law, and Robert J. Paoloni, Kent, for appellee.

William T. Whitaker, Albert S. Rakas and Dana F. Castle, Akron, for appellant.

RER CURIAM.

The Court of Appeals said that, by reason of the remand from the United States Supreme Court, 'the basic question for consideration (by it) is to determine under what condition a person may be punished under' the Kent ordinance 'for willfully speaking in a noisy, boisterous or other disorderly manner so as to disturb the good order and quiet of the municipality.' The Court of Appeals found that the language used by defendant fell within the framework of Cincinnati v. Karlan, supra, which holds that 'epithets, used in a public place and willfully directed at those who can hear them, (which) are likely to provoke the average person to an immediate retaliatory breach of the peace, * * * are fighting words, and the utterance thereof may be punished as a criminal act.'

However, the words used by defendant in this case were not descriptive of a particular person and directed to that person. They were not 'epithets likely to provoke the average person to retaliation,' as, for instance, the words used in Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. In the context of their use by defendant, his words did not constitute 'fighting words,' and their utterance cannot be made a crime. Chaplinsky v. New Hampshire, supra; Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Lewis v. New Orleans, supra; Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.

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