IN THE DHIO SUPREME COURT
STATE OF OHIO,
Plaintiff-Appellee,
-vs-
Case No. 91-199
DAVID WYANT,
Defendant-Appellant.
ON APPEAL FROM THE DELAWARE COUNTY COURT OF APPEALS, FIFTH APPELLATE DISTRICT BRIEF OF THE THOMAS JEFFERSON CENTER FOR THE PROTECTION
OF FREE EXPRESSION AMICUS CURIAE IN SUPPORT
OF APPELLANT AND URGING REVERSAL
BRUCE W. SANFORD
Ohio Reg. No. 0025772
Chairman, Board of Trustees
The Thomas Jefferson Center for
the Protection of Free
Expression
400 Peter Jefferson Place
Charlottesville, VA 22901
(804) 295-4784
and
ROBERT M. O'NEIL
Of Counsel
The Thomas Jefferson Center for
the Protection of Free
Expression
400 Peter Jefferson Place
Charlottesville, VA 22901
(804) 295-4784
TABLE OF CONTENTS Paae
-STATEMENT OF INTEREST
4
TABLE OF AUTHORITIES
5
STATEMENT OF THE CASE AND
STATEMENT OF THE FACTS
6
SUMMARY OF ARGUMENT .
6-7
PROPOSITION OF LAW NO.1.
. . . . .
No.
. . . . . . 8-11
Ohio Revised Code 8 2927.12 is unconstitutionally
overbroad as applied to speech.
Chaplinsky v. New Hampshire
(1942), 315 U.S. 568 . . . .
8, 9
Gooding v. Wilson
(1972),408 U.S. 518
. 8
Lewis v. New orleans
(1974), 418 U.S. 130
. 8
Brandenburg v. Ohio
(1969), 395 U.S. 444
9
R.C.
§
2927.12
9, 10, 11
R.C.
§
2909.07
11
PROPOSITION OF LAW NO. 2
. .
. 11-13
Ohio Revised Code § 2927.12 is void for vagueness.
R.C.
§2927.12
11, 12, 13
R.C.
§
2909.06
13
R.C.
§ 2909.07
13
-2­
..
PaGe No .
PROPOSITION OF LAW NO. 3 13-15 "Hate Speech" is protected by the First Amendment
and may not be given lesser protection because of
its content.
First Amendment, United states Constitution
Article I, § 11, Ohio Constitution . . . . .
Brandenburg v. Ohio
(1969),395 U.S. 444
CONCLUSION
.
. . . .
. .
CERTIFICATE OF SERVICE
. 14 . . . . . . . . 14 . . . . . . . . . . . 14 . . . .
. . . . . . .
. . . . . . . . . . . . . 17 APPENDIX .
I. First Amendment, United States Constitution
II. Article I,
. 15 .
.
.
.
.
.
. 18 . . . . . . . 19 § 11, Ohio Constitution . .
. .
. . . . . . . . 20 III.
R.C.
§ 2903.21 21 IV .
R•C•
§ 2 9 0 9 • 06
22 R.C.
§ 2909.07
23-24 R. C .
§ 2 9 2 7 . 12 25 V. VI.
-3­
STATEMENT OF AMICUS INTEREST
The Thomas Jefferson Center for the Protection of Free
Expression is an independent, non-profit, non-partisan
organization in Charlottesville, Virginia, devoted solely to
the protection of freedom of speech and press.
Its mission
includes litigation and legislation as well as research and
other activities.
The importance of this case is apparent to all who share
the Center's concern about free expression.
Since it
represents the first challenge to the constitutionality of
an ethnic intimidation law of this type at the state supreme
court level, and since the Ohio statue is similar to those
of other states, this case has great significance to freedom
of expression across the nation.
The conflict between the
two ohio appellate courts on free speech issues illustrates
both the difficulty and the importance of this novel
question.
Other states will be watching ohio closely as
they consider adoption of, or changes in, laws relating to
ethnic intimidation or similar expression.
In view of the Center's mission and focus, this brief is
limited to constitutional issues of free expression.
It
does not address other constitutional or statutory questions
that may come before the court.
-4­
TABLE OF AUTHORITIES Page No.
CASES
Brandenburg v. Ohio
(1969), 395 U.S. 444
9, 14
Chaplinsky v. New Hampshire
(1942), 315 U.S. 568 . . . .
8, 9
Gooding v. Wilson
(1972), 408 U.S. 518
..
Lewis v. New orleans
(1974), 418 U.S. 130
.. 8
8
STATUTES AND CONSTITUTIONS
First Amendment,
United States Constitution
7, 14
Article I, § 11,
Ohio Constitution
14
R.C.
§
2903.21
R.C.
§
2909.06
R.C.
§ 2909.07
R.C.
82927.12
.
6
. . . . .
13
.
.
11, 13
7 , 9, 10
11, 12, 13
6,
-5­
STATEMENT OF THE CASE AND STATEMENT OF THE FACTS
Amicus Curiae, the Thomas Jefferson Center for the
Protection of Free Expression, accepts the statement of
the case and the statement of the facts of the case as set
forth in the briefs of Appellant Wyant.
SUMMARY OF ARGUMENT
As applied to speech or expression, Ohio Revised Code
§ 2927.12 abridges free speech in at least two ways.
its terms are unconstitutionally overbroad.
First,
When applied to
speech that does not pose a clear and present danger (and is
not otherwise denied constitutional protection) the statute
reaches or inhibits expression that clearly is within the
First Amendment.
Second, its application renders the statute
unconstitutionally vague; its potential reach to protected
expression is made uncertain by its terms, and those terms
therefore fail to give adequate guidance as to its possible
scope in the realm of protected speech.
The facts of the Wyant case well illustrate the
argument.
§
The charge of ethnic intimidation under R.C.
2927.12(A) reflected a claimed enhancement of the underlying
offense of aggravated menacing, which is in turn made unlawful
by Ohio Revised Code
~
2903.21.
Unlike a charge of physical
assault or battery, the charge of menacing is itself
constitutionally suspect, even when speech is not directly
involved.
Where the charge of ethnic intimidation is also
-6­
based on speech, as is the case here, the problem is
compounded.
Neither aggravated menacing nor the
greater offense of ethnic intimidation requires proof of a
clear and present danger, or of any other interest that would
justify abridging speech under the First Amendment.
Moreover, the vital element that must be proved under R.C.
S 2927.12 -- that the underlying activity (e.g., menacing) was
done "by reason of . . . race, color, religion, or national
origin
. . " turns upon speech as its sole support.
Unless
such a link could somehow be proved by a longstanding pattern
of discriminatory conduct on the defendant's part -- surely
not the situation here or in the typical case -- the key
ingredient of the law must be proved by speech and by speech
alone.
It is therefore expression or perceived animus alone
that supplies the aggravation on which R.C.
§
2927.12 turns.
Any doubt that this is a law imposing criminal penalties on
the content of speech should be removed by this analysis.
However offensive or noxious may be the words or phrases
that occasion such a charge, there is no suggestion that they
fall outside the constitutional definition of "speech".
Despite laudable goals that may inspire laws against ethnic
intimidation and the like, those laws must be tested by the
same constitutional principles that govern all laws affecting
speech.
By that standard, R.C. S 2927.12 fails the essential
constitutional test.
-7­
FIRST PROPOSITION OF
LAW~
OHIO REVISED CODE § 2927.12 IS UNCONSTITUTIONALLY
OVERBROAD AS APPLIED TO SPEECH.
There can be no doubt that the expression involved here
was speech.
arrest.
No physical contact or other conduct preceded the
Nor was there evidence of "fighting words ll of the
sort that might have invoked Chaplinsky v. New Hampshire
(1942), 315 U.S. 568.
The parties in the present case were
not face-to-face, but were some distance apart.
It is unclear
whether the words charged were even addressed to the
complainant by whom they were overheard.
Surely there was not
that imminent risk of a breach of the peace which caused the
Supreme Court to sustain Chaplinsky's conviction.
Moreover, later cases have sharply qualified, if never
quite overruled, Chaplinsky and have left little scope to
the IIfighting words" exception.
In Gooding v. Wilson
(1972), 408 U.S. 518, Lewis v. New Orleans (1974), 418 U.S.
130, the United States Supreme Court has reversed convictions
for "fighting words" even in face-to-face situations, either
because of unclear statutory terms or absence of proof of
imminent and likely violence.
The vice of over-breadth exists at both levels -- both in
regard to "menacing" and in regard to "ethnic intimidation.
1I
One may be convicted of aggravated menacing if his or her
words "knowingly cause another to believe ll that "serious
physical harm" will occur.
No immediate threat of violence or
-8­
assault is required here.
Much unpleasant or even threatening
language could trigger such a charge, but would not
necessarily be denied First Amendment protection.
Some of the
discussion or advocacy which the United States Supreme Court
held beyond Ohio's criminal laws in Brandenburg v. ohio
(1969), 395 U.S. 444, might be seen by some as "aggravated
menacing" yet would fall well short of "incitement to imminent
lawless action" on which that Court insisted.
Again, the facts of Wyant illustrate the concern.
The
court below found the statute's terms satisfied because the
facts "involved the use of racial slurs which were likely to
cause a breach of the peace ll
--
suggesting that Chaplinsky
and its progeny, and Brandenburg, do indeed furnish the
proper test.
Under that test, the speech that triggered the
criminal charge falls far short of what states may punish.
Thus the lIaggravated menacing" part of the charge is clearly
deficient.
The problem is compounded in two ways by the ethnic
intimidation charge under R.C.
§ 2927.12.
The reach of Ohio's
criminal law is potentially expanded beyond the basic charge
because a
9 2927.12 violation is an offense of the "next
higher degree ll than the basic offense.
Thus the over-breadth
of the underlying statute is magnified when plugged into
§
2927.12 and used for this collateral purpose with a far more
severe penalty.
The other problem is subtler.
-9­
A charge under ohio Revised
Code
§ 2927.12 requires proof that the defendant committed the
,
basic offense "by reason of the race, color, religion, or
national origin of another person or group of persons."
Conceivably in a case of pers istent harassment, such
II
reason II
could be established by a pattern of discriminatory conduct
-- though proof of such a pattern must meet the high standards
that the united states Supreme Court has set for that
purpose.
But in most situations, and surely in those at bar,
the proof must come from speech, and speech alone.
Suppose,
in Wyant, that all the complainant overheard
from the adjacent campground was adverse remarks about the
noise level of his radio, or about his having appealed to the
park official.
The key element of
§
2927.12 could hardly be
inferred or assumed from the tension between couples of
different races.
(If a court should do so, it would then be
punishing thought, or motive, in ways the supreme Court has
recently made clear in the flag desecration cases may not be
done.)
It is clearly speech that is at stake.
Only the
explicit reference to race in the overheard comments
triggers the ethnic intimidation law -- thus making clear the
degree to which § 2927.12 is a criminal statute directed
squarely at the content of speech.
Finally, R.C. § 2927.12 nowhere requires proof of effect
upon or harm to the object of alleged intimidation.
The
menacing statute does require such effect ("cause another to
believe"), but the intimidation law does not.
-10­
The "by
reason of" element says nothing whatever about impact or harm.
Thus one could be convicted of ethnic intimidation whether or
not the other person or persons even took offense, much less
felt themselves in peril,
o~
acting "by reason of . . . ".
even knew the defendant was
That possibility, clearly within
the statute, illustrates again the vagueness concern and the
dangerous sweep of a criminal law that may directly touch
speech and expression.
Thus the excessive breadth of R.C.
apparent
by
application.
§
2927.12 becomes
parsing its provisions and reviewing its
Even if this law were applied to an underlying
charge like destruction of property (R.C. § 2909.07) its
over-breadth would still be apparent as a speech-based
expansion or aggravation of a non-speech basic charge.
where
the basic charge, as here, also involves speech and only
speech, the unconstitutionality is even more apparent.
SECOND PROPOSITION OF LAW:
OHIO REVISED CODE
§ 2927.12 IS VOID FOR VAGUENESS.
The foregoing analysis shows the degree to which the terms
of R.C.
§
2927.12 fail to distinguish between protected and
unprotected expression.
In fact the statute affords little
guidance to conscientious citizens.
Because that lack of
guidance directly affects speech, the statute's imprecision is
a separate ground of unconstitutionality.
The vice of vagueness exists at several places.
-11­
First,
the key phrase "by reason of" might pass muster in a
commercial statute, but falls far short of the precision that
is needed in a criminal case, especially when speech is at
issue.
This phrase could mean many things, as we noted in
passing above.
It could require proof of a pattern or
practice of discriminatory conduct over a substantial period
of time.
or, as seems to be the case from the facts here, it
could require no more than a pejorative or uncomplimentary
reference to a person of a different race or religion -- or
for that matter, even a disparaging reference to a person of
the same race or religion if tied to any of the underlying
offenses.
Second, it is quite unclear how much of a "reason" the
cited animus must provide.
The "reasons" for expression
charged under § 2927.12 might be many and varied -- as indeed
the facts of Wyant suggest they were here.
The racial or
religious element might be a major reason, or a minor or even
incidental one; apparently the state need only prove that
race, religion or nationality, had something to do with the
charged statements.
Third, the vagueness is compounded by the absence in the
statute of any requirement that discriminatory intent be
proved.
The underlying criminal statute, as in the case of
"menacing," may contain such a requirement.
intimidation law does not.
be made under
§
But the
Thus a charge could conceivably
2927.12 without proof the defendant even knew
-12­
the race or religion or nationality of the victim.
Such proof
would fall short of constitutional requirements.
The expected, if not required, motive might be inferred
the race or religion or nationality of the victim.
from the "by reason of" clause, though the statute is silent
as to how that should be done, and how a jury asked to find
motive or purpose should be charged.
It might be that one
Methodist thinks it would be easier to deface the property of
fellow Methodists because (as he has proclaimed on several
occasions) they are more trusting or more gullible, and he
proceeds to commit such defacement.
Presumably he could then
be charged with ethnic intimidation as well as with the
underlying offense of criminal mischief under Ohio Revised
Code
§
2909.06 or
intimidation.
§
2909.07.
And this was undoubtedly not what the Ohio
General Assembly had in mind.
§
This hardly sounds like ethnic
Yet a literal application of
2927.12 could carry it this far, thus pointedly illustrating
the vagueness concern.
THIRD PROPOSITION OF LAW:
"HATE SPEECH" IS PROTECTED BY THE FIRST AMENDMENT AND MAY
NOT BE GIVEN LESSER PROTECTION BECAUSE OF ITS CONTENT.
Cases of this kind naturally evoke much sympathy.
The
speech involved is offensive and troubling, especially so at a
time when a racially diverse nation seeks harmony and
civility.
Thoughtful persons abhor slurs and insults like
those charged here.
One cannot help but sympathize with the
complainant, and the arresting officer, who both sought to
-13­
invoke legal process to qvert racial strife.
If we were dealing here with conduct that involved no
expression whatever, the outcome would be much simplier.
It is more difficult because we are dealing with speech -­
pure speech -- and because that speech is so noxious and
hateful.
In many other countries, judges would have no
hesitation in sustaining sanctions of the kind now before this
court.
It is the special force of our First Amendment and of
Article I, section 11 of the Ohio Constitution, that alter the
balance.
Those guarantees require us, in the interests of a
free and open society, to tolerate much speech we find
abhorrent or divisive or despicable.
We understand these precepts well in dealing even with
speech that threatens the security or stability of our
government.
Brandenburg v. Ohio demands proof of an
imminent danger -- one that may be checked in no less drastic
way -- before any speech may be suppressed.
It is in the area
of race, religion, and nationality that we have genuine
doubts, and where persons of like mind and good will may
differ.
However appealing the case for restraint may now seem
before this Court, the precedent that would be created by
sustaining this conviction must be at all times in mind.
The
exception that society makes today for speech that is
inexcusably racist, or sexist, or anti-semitic or otherwise
-14­
uniformly offensive! may return to haunt us tomorrow in a
wholly different guise.
Tne First Amendment constantly
reminds us of the need for consistency in judging speech! and
of the perils of flexibility in the face of offensive or
outrageous expression.
Thus! however laudable the goals of the statute! and
however abhorrent the ideas or values or expression to which
it has been applied! an abiding set of constitutional
principles limit government's capacity to respond.
They admit
of no exceptions! even for the most appealing of reasons! and
they ensure in that way the durability and vitality of the
guarantee whose bicentennial we will shortly mark as a
nation.
CONCLUSION
The case is a novel one, of vital importance to Ohio and
the Nation as the Bill of Rights marks its bicentennial.
A
unique tension between basic American values inheres in the
national debate over ethnic intimidation and similar laws.
We
seek to ensure civility, and wish to show in our speech as
well as our acts a complete commitment to equal opportunity.
Yet the framers of our First Amendment circumscribed the means
by which we may pursue that goal.
Only those measures that
fully protect free speech and press may be used in the service
of any public goal -- even a goal as laudable as the one that
underlies the laws now challenged before this Court.
There
could not be a better time than the two hundredth birthday of
the Bill of Rights to reaffirm those principles.
-15­
Respectfully
BRUCE W. SANFORD
ohio Reg. No. 0025772
Chairman, Board of Trustees
The Thomas Jefferson Center for
the protection of Free
Expression
400 Peter Jefferson Place
Charlottesville, VA 22901
(804) 295-4784
and
bt,\~
ROBERT M. O'NEIL
Of Counsel
The Thomas Jefferson Center for
the Protection of Free
Expression
400 Peter Jefferson Place
Charlottesville, VA 22901
(804) 295-4784
Counsel for Amicus Curiae,
The Thomas Jefferson Center for
the Protection of Free
Expression
-16­
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served
upon W. Duncan Whitney, Delaware County Prosecutor, and Sue
Ann Reuhlbach, Assistant Prosecuting Attorney, 149 N.
Sandusky Street, Delaware, Ohio
postage prepaid, this
...5
43015 by ordinary U.S. mail,
day of July, 1991.
pb~
-17­
/! J?£~'l/
-81­
XlaN3:ddii
THE CONSTITUTION OF THE UNITED STATES AMENDMENT I Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press, or the right
of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
-19­
CONSTITUTION OF OHIO
ARTICLE I,
§ 11
§ 11 [Freedom of speech and of the press;
libel.]
Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse of
the right; and no law shall be passed to restrain or abridge
the liberty of speech, or of the press.
In all criminal
prosecutions for libel, the truth may be given in evidence to
the jury, and if it shall appear to the jury, that the matter
charged as libelous is true, and was published with good
motives, and for justifiable ends, the party shall be
acquitted.
-20­
Ohio Revised Code
92903.21 Aggravated menacing.
(A) No person shall knowingly cause another to believe
that the offender will cause serious physical harm to the
person or property of such other person or member of his
immediate family.
(B) Whoever violates this section is guilty of aggravated
menacing, a misdemeanor of the first degree.
-21­
Ohio Revised Code
92909.06 Criminal damaging or endangering.
(A) No person shall cause, or create a substantial risk of
physical harm to any property of another without his consent:
(1) Knowingly, by any means;
(2) Recklessly, by means of fire, explosion, flood, poison
gas, poison, radioactive material, caustic or corrosive
material, or other inherently dangerous agency or substance.
(B) Whoever violates this section is guilty of criminal
damaging or endangering, a misdemeanor of the second degree.
If violation of this section creates a risk of physical harm
to any person, criminal damaging or endangering is a
misdemeanor of the first degree.
If the property involved in
a violation of this section is an aircraft, an aircraft
engine, propeller, appliance, spare part, or any other
equipment or implement used or intended to be used in the
operation of an aircraft and if the violation creates a risk
of physical harm to any person or if the property involved in
a violation of this section is an occupied aircraft, criminal
damaging or endangering is a felony of the fourth degree.
-22­
Ohio Revised Code
§
2909.07
Criminal mischief.
(A) No person shall:
(1) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with the
property of another;
(2) with purpose to interfere with the use or enjoyment of
property of another, employ a tear gas device, stink bomb,
smoke generator, or other device releasing a substance which
is harmful or offensive to persons exposed, or which tends to
cause public alarm;
(3) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with a bench
mark, triangulation station, boundary marker, or other survey
station, monument, or marker;
(4) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with any
safety device, the property of another, or the property of the
offender when required or placed for the safety of others, so
as to destroy or diminish its effectiveness or availability
for its intended purposei
(5) With purpose to interfere with the use or enjoyment of
the property of another, set a fire on the land of another or
place personal property that has been set on fire on the land
of another, which fire or personal property is outside and
apart from any building, other structure, or personal property
that is on that land.
(B) As used in this section, "safety device" means any
fire extinguisher, fire hose, or fire axe, or any fire escape,
emergency exit, or emergency escape equipment, or any life
line, life-saving ring, life preserver, or life boat or raft,
or any alarm, light, flare, signal, sign, or notice intended
to warn of danger or emergency, or intended for other safety
purposes, or any guard railing or safety barricade, or any
traffic Sign or signal, or any railroad grade crossing sign,
signal, or gate, or any first aid or survival equipment, or
any other device, apparatus, or equipment intended for
protecting or preserving the safety of persons or property.
-23­
(C) Whoever violates this section is guilty of criminal
mischief, a misdemeanor of the third degree. If violation of
this section creates a risk of physical harm to any person,
criminal mischief is a misdemeanor of the first degree. If
the property involved in violation of this section is an
aircraft, an aircraft engine, propeller, appliance, spare
part, fuel, lubricant, hydraulic fluid, any other equipment,
implement, or material used or intended to be used in the
operation of an aircraft, or any cargo carried or intended to
be carried in an aircraft and if the violation creates a risk
of physical harm to any person or if the property involved in
a violation of this section is an occupied aircraft, criminal
mischief is a felony of the fourth degree.
-24­
Ohio Revised Code
§ 2927.12 Ethnic intimidation.
(A) No person shall violate section 2903.21, 2903.22,
2909.06, or 2909.07, or division (A)(3), (4), or (5) of
section 2917.21 of the Revised Code by reason of the race,
color, religion, or national origin of another person or group
of persons.
(B) Whoever violates this section is guilty of ethnic
intimidation. Ethnic intimidation is an offense of the next
higher degree than the offense the commission of which is a
necessary element of ethnic intimidation.
-25­