State v. Hoffman

• Decision Date: 28 March 1979
• Docket Number: No. 78-1318,78-1318
• Citation: 57 Ohio St.2d 129,387 N.E.2d 239,11 O.O.3d 298
• Parties: , 11 O.O.3d 298 The STATE of Ohio, Appellant, v. HOFFMAN, Appellee.
• Court: Ohio Supreme Court

Page 129

57 Ohio St.2d 129

387 N.E.2d 239, 11 O.O.3d 298

The STATE of Ohio, Appellant, v. HOFFMAN, Appellee.

No. 78-1318.

Supreme Court of Ohio.

March 28, 1979.

Syllabus by the Court

1. A person may not be punished under R.C. 2917.11(A)(2) for "recklessly caus(ing) inconvenience, annoyance, or alarm to another," by making an "offensively coarse utterance" or "communicating unwarranted and grossly abusive language to any person," unless the words spoken are likely, by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace. (Cincinnati v. Karlan, 39 Ohio St.2d 107, 314 N.E.2d 162, followed.)

2. The constitutionality of R.C. 2917.11 must be authoritatively construed in light of the facts and the circumstances surrounding a case involving speech.

On November 15, 1977, defendant, Herman Hoffman, was arrested by the city of Wooster police and charged in the Wayne County Municipal Court with "recklessly caus(ing) inconvenience, annoyance, or alarm to another, by making unreasonable noise or offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person, contrary to Section 2917.11 of the Revised Code," a minor misdemeanor.

The record indicates that the trial court granted defendant's motion to dismiss, for the following reason:

"* * * due to prior holding of this court and our court of appeals that Wooster Ordinance is unconstitutional and language of statute is exactly the same."

No evidence was received by the trial court and no stipulations were offered and received.

The Court of Appeals, in its opinion, refers to "alleged facts for purposes of the motion to dismiss * * *." It appears from the record that the defendant stated the facts orally in his motion to dismiss. Allegedly, the defendant was using profanity and making verbal threats over Channel 19 of his CB radio. The Court of Appeals quotes defendant as follows:

" ' * * * god damn assholes' and 'any son of a bitch that wants to do something about it, to come on down 30 at the Loudonville Exit.' There were words exchanged with other CB operators in the area. The defendant also said 'that if any one wanted to shut him up, to come on down if they had guts enough'; and 'the cops are afraid to do anything to Wooster CB operators.' "

The Court of Appeals found that the trial court had applied its decision in Wooster v. Thompson (July 6, 1977, No. 1478), unreported, and, further, agreed with the trial court's action in finding R.C. 2917.11(A)(2) to be unconstitutionally vague and overly broad on its face. In so doing, the Court of Appeals determined that its judgment was in conflict with the judgment rendered by the Court of Appeals for Hamilton County in Springdale v. Hubbard (1977), 52 Ohio App.2d 255, 369 N.E.2d 808, and with the judgment of the Court of Appeals for Franklin County in In re Flower (May 9, 1977, 77 AP-19), unreported, and certified the record of this case to this court for review and final determination.

Stuart K. Miller, Wooster, for appellant.

Thomas T. Flynn, Rittman, for appellee.

DONOFRIO, Justice.

The Court of Appeals states that the issue in conflict is "whether R.C. 2917.11(A)(2) is unconstitutionally vague and overbroad on its face," in violation of the First and Fourteenth Amendments to the United States Constitution.

R.C. 2917.11, in part, states:

"(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another, by doing any of the following:

"(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;

"(2) Making unreasonable noise or offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person;

"(3) Insulting, taunting, or challenging another, under circumstances in which conduct is likely to provoke a violent response;

"(4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act which serves no lawful and reasonable purpose of the offender;

"(5) Creating a condition which is physically offensive to persons or which presents a risk of physical harm to persons or property, by any act which serves no lawful and reasonable purpose of the offender."

The United States Supreme Court has stated that no 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" as defined by that tribunal.

In Cincinnati v. Karlan (1974), 39 Ohio St.2d 107 at page 110, 314 N.E.2d 162, at page 164, a case construing Section 901-d4, Code of Ordinances of Cincinnati, and contemplating a proscription similar to R.C. 2917.11(A)(2) herein, Justice Herbert, speaking for the majority, stated:

"Therefore, persons may not be punished under Section 901-d4, Code of Ordinance of Cincinnati, for speaking boisterous, rude or insulting words, even with the intent to annoy another, unless the words by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace. Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Terminiello v. Chicago (1949), 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284; Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408; Lewis v. New Orleans, supra ((1974), 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214)."

The question inherent in the issue under consideration herein deals with the procedure in determining the constitutionality of R.C. 2917.11: May the statute be considered merely on its face or should it be authoritatively construed in light of the facts and the circumstances surrounding a case involving speech? This question was answered by a majority of this court in Karlan, supra. Karlan involved a conviction for breach of the peace and was appealed to the United States Supreme Court. That court vacated this court's original judgment of affirmance (35 Ohio St.2d 34, 298 N.E.2d 573) and remanded the cause for further consideration in light of Lewis v. New Orleans, supra, which was decided subsequent to the publication of this court's first opinion in Karlan. This court's original ruling in Karlan was...