State v. Schwing, 74-375

• Decision Date: 21 May 1975
• Docket Number: No. 74-375,74-375
• Citation: 328 N.E.2d 379,42 Ohio St.2d 295
• Parties: , 71 O.O.2d 288 The STATE of Ohio, Appellee, v. SCHWING, Appellant.
• Court: Ohio Supreme Court

Page 295

42 Ohio St.2d 295

328 N.E.2d 379, 71 O.O.2d 288

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

No. 74-375.

Supreme Court of Ohio.

May 21, 1975.

Syllabus by the Court.

1. Where the record, in the trial of an accused charged with the use of obscene language pursuant to former R.C. 2905.301, fails to demonstrate that spoken language appeals to a prurient interest in sex, as that interest is defined by applying contemporary community standards, and is, in some significant way, erotic, it is prejudicial error for the trial court to instruct the jury that the language in question is, as a matter of law, obscene. (Paragraph one of the syllabus in Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735, approved and followed.)

2. Where an appellant has been charged, tried and convicted for the use of allegedly obscene language, affirmance of the judgment of conviction upon a theory that the language constituted 'fighting words' denies appellant due process of law, in violation of the Fourteenth Amendment to the United States Constitution. (Paragraph two of the syllabus in Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735, approved and followed.)

3. Former R.C. 3761.11, repealed effective January 1, 1974, is, on its face, unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments to the United States Constitution, inasmuch as, (1) it failed to delineate standards for enforcement by which the proscribed conduct could be measured, and (2) because the statute as written could be employed to punish constitutionally protected conduct and expression; however, the first portion of R.C. 3761.11 is susceptible of a properly limited construction narrowing the broad proscriptions of the statute to a sole prohibition against the willful interruption or disturbance of a lawful assemblage which causes it to terminate in an untimely manner, or substantially impairs the conduct of such assemblage, and, as contrued, is constitutional; however, in the absence of a charge to the jury properly limiting this statute under which the defendant was charged, a verdict finding the defendant guilty must be reversed.

This appeal arose out of an incident occurring at The Ohio State University College of Law on May 18, 1972. A meeting had been arranged at the college to hear speakers discuss proposed changes in the Ohio Criminal Code. After this meeting came to order, a number of persons entered the room and began yelling and chanting, directing their remarks to Franklin County Municipal Judge G. W. Fais, a scheduled speaker at the meeting. The record indicates that the entire group was chanting 'Fuck Fais.' The testimony of Officer Rayburn of the Columbus Police Department indicates that the appellant was among those in the group chanting. Officer Rayburn also testified that he saw appellant's actions and heard appellant yell at Judge Fais, calling him a 'goddamn pig and mother fucker.' Other witnesses also identified the appellant as among the group. Additional testimony indicated that the group held Judge Fais and indicated an intent to keep him in the room. The record also shows that one of the law students present yelled at appellant to let Judge Fais go and then hit appellant when he refused to do so. Judge Fais testified that he could not identify the appellant nor did he hear appellant directly address any remarks to him. Officer Rayburn subsequently obtained warrants for appellant's arrest. Appellant was charged with violating three misdemeanor sections of the Ohio Revised Code (1973): R.C. 2901.25, menacing threats; R.C. 2905.301, obscene language; and R.C. 3761.11, disturbing a lawful assembly.

The case was tried to a jury in the Franklin County Municipal Court on December 12, 1972. The jury found appellant guilty of violating R.C. 2905.301, obscene language, and R.C. 3761.11, disturbing a lawful assembly, and not guilty of the charge of making menacing threats. Judgment was entered upon the verdicts. Whereupon, appellant perfected an appeal to the Court of Appeals for Franklin County.

Appellant based his appeal on the constitutionality of the statutes in question. Appellant maintained that R.C. 2905.301 was unconstitutionally vague and overbroad, as applied, and denied him due process of law. The Court of Appeals upheld the constitutionality of this statute on the basis that the language in question constituted 'fighting words,' which were not protected under the First Amendment to the United States Constitution. In so doing, the Court of Appeals also ruled that the trial judge's instruction as to what constituted obscene language was merely harmless error.

Similarly, the Court of Appeals held that R.C. 3761.11 was carefully and narrowly drawn and was directed to specific conduct.

Both statutes under which appellant was convicted have since been repealed.

The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.

James J. Hughes, Jr., City Atty., Daniel Johnson and Phyllis F. Kunkler, Columbus, for appellee.

Robert P. App, Columbus, for appellant.

CORRIGAN, Justice.

Appellant's first, second and fourth propositions of law are directed to his conviction under former R.C. 2905.301. Appellant's third proposition of law deals with the constitutionality of former R.C. 3761.11 and will be discussed separately.

I.

Appellant maintains, in proposition of law No. 1, that the trial court's instruction, removing from the jury the question of fact as to whether appellant's alleged language was obscene and licentious within the meaning of R.C. 2905.301, is erroneous and deprives him of due process of law. Appellant argues that the Court of Appeals cannot render such error harmless by a finding of fact that the language in question constituted 'fighting words.' Appellant also maintains, in proposition of law No. 2, that application of R.C. 2905.301 to the language here alleged is an unconstitutional application of that section in violation of the First Amendment to the United States Constitution, and, in proposition of law No. 4, that R.C. 2905.301 is vague and overbroad on its face in violation of the First and Fourteenth Amendments to the United States Constitution.

This court recently reversed two convictions for the alleged use of obscene language on a public street. Columbus v. Fraley (1975), 41 Ohio St.2d 173, 324 N.E.2d 735. Appellants, in that case, had been convicted under Section 2327.01 of the Columbus Code of Ordinances, which provides:

'No person shall disturb the good order and quiet of the city by * * * using obscene or profane language in any street or other public place * * *.'

The expletives for which the appellants, in Fraley, were convicted are the same as those used in the present case. This court reversed the obscene language conviction on the basis that, as a matter of law, the language used by the appellants, in that case, was not, in some significant way, erotic and, therefore, not obscene as defined by the United States Supreme Court in Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and, subsequently, Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and as applied to symbolic speech and spoken words in Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, and Hess v. Indiana (1973), 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303, respectively.

This has been the position of this court in prior cases involving the same vulgar epithets for which appellant herein was charged with obscene expression. Columbus v. Schwarzwalder (1974), 39 Ohio St.2d 61, 313 N.E.2d 798, and Columbus v. Williams (1973), 36 Ohio St.2d 7, 302 N.E.2d 582. In Williams, we reversed a conviction for the alleged violation of R.C. 2905.301, basing reversal on Cohen, supra. Obscene expression is not protected by the First Amendment to the United States Constitution, but in order to be obscene, such expression must, at the very least, '* * * appeal to a prurient interest in sex, as that interest is defined by applying contemporary community standards, and must be, in some significant way, erotic.' (Paragraph one of the syllabus in Columbus v. Fraley, supra.)

In the present case, the trial court not only excluded from consideration by the jury an essential question of fact but charged the jury in its instruction that the language allgedly used was, as a matter of law, obscene when the United States Supreme Court and this court have determined that identical language used in similar circumstances was not obscene. Hess v. Indiana, supra (414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303); Columbus v. Schwarzwalder, supra (39 Ohio St.2d 61, 313 N.E.2d 798); Columbus v. Williams, supra (36 Ohio St.2d 7, 302 N.E.2d 582).

The trial court's instruction in this case was not only prejudicial to appellant's defense to the charge of violating R.C. 2905.301, but clearly erroneous under the decisions previously cited. The error was compounded by the Court of Appeals when that court affirmed appellant's conviction on the basis that the language allegedly used by appellant constituted 'fighting words.'

In the Fraley decision, this court specifically rejected the contention that a person tried, charged and convicted solely for the use of obscene language could have that conviction affirmed upon a theory that the language constituted 'fighting words.' See paragraph two of the syllabus in Fraley, supra.

This court based the Fraley decision on Cole v. Arkansas (1948), 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644, wherein the defendants were charged under an Arkansas statute prohibiting, in section one, the use of force and violence and, in section two, promotion of an unlawful assemblage. The trial court instructed the jury solely upon section two and the defendants were convicted. Upon appeal, the Supreme Court of Arkansas affirmed the conviction on the basis that the defendants had violated sect...