Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
FIRST AMENDMENT (132)
Also see Courts/News
coverage; Protest Situations.
"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 assembly, and to petition the Government for a redress of
U.S. v. Stevens
(2010), 130 S.Ct. 1577 – 18 U.S.C. ¶48, which proscribes
commercial depiction of animal cruelly, is unconstitutionally
overbroad in violation of the First Amendment.
States v. Williams (2008), 128 S.Ct. 1830 – Provision
enacted to replace the one found unconstitutional in Ashcroft v. Free Speech Coalition
(2002), 525 U.S. 234 survives First Amendment challenge as it
targets speech introducing child-pornography into the
distribution network and not the underlying material, which if
virtual, is constitutionally protected. Void for vagueness
challenge rejected as well.
Bontrager, 149 Ohio Misc. 2d 33,
2008-Ohio-5651 – Amish defendant maintained replacement of
his septic system on recently acquired property with a system
requiring the use of electricity would violate his freedom of
religion. Looking to the tenets of his particular sect, the
court first found the defendant‘s beliefs are sincerely held.
But in the second phase of analysis it is concluded that the
provision at issue is religion neutral, and the state‘s interest
in preventing discharge of untreated sewage upon the general
public is of sufficient magnitude to override the prohibition of
the use of electricity by the defendant‘s church.
v. Carbone, 181 Ohio App. 3d 500,
2009-Ohio-1197 – Cop looking to make arrests under an
ordinance making it disorderly conduct to loiter near a toilet
building responded to the defendant‘s flashing his brake lights,
followed him into a park restroom, arranged a liaison at the
defendant‘s place of business, then placed him under arrest.
Officer was mindful the park had a four star rating on
"cruisingforsex.com." The ordinance simply states "No person
shall loiter in or near toilet buildings." This is
unconstitutionally vague both on its face and as applied to the
defendant. It permits the police to make an arrest before any
crime has occurred or is about to occur. The ordinance is also
Virginia v. Black (2003), 123 S.Ct.
1536 -- Statute banning burning a cross with the intent to
intimidate does not violate the First Amendment. The First
Amendment does not prohibit all forms of content-based
discrimination within a proscribable area of speech. Court cites
the history of cross burning as a particularly virulent form of
intimidation. Case remanded for further consideration of the
constitutionality of an instruction to the effect burning a
cross is prima facie evidence of an intent to intimidate.
Watchtower Bible and Tract Society of New
York v. Village of Stratton
(2002), 122 S.Ct. 2080 -- Ordinance requiring all canvassers
going from door to door to sign a registration form and obtain a
permit violates the First Amendment, as it pertains to freedom
to engage in religious proselytizing, anonymous political
speech, and freedom of the press through the distribution of
Ashcroft v. Free Speech Coalition (2002),
122 S.Ct. 1389 -- The ban on virtual child pornography in the Child Pornography
Prevention Act of 1996 is overly broad and unconstitutional under the First
Amendment. Compare State v. Anderson, 151 Ohio App. 3d 422,
2003-Ohio-429, ¶31-32 --
R.C. 2907.322(A)(5) prohibits knowing possession of
material depicting actual children.
Hill v. Colorado (2000), 120 S.Ct. 2480 --
Provision barring approach within eight feet of persons near health care
facilities found narrowly tailored, content-neutral, neither vague nor overly
broad, and not to constitute a prior restraint on speech.
Virginia v. Hicks (2003), 123 S.Ct.
2191 -- City deeded streets within a housing project to the project and no
trespassing signs were prominently posted. Citizen who had been given written
notice to keep out challenged the trespassing policy as overly broad in
violation of the First Amendment. Though he was not a leafleter, the claim made
was that an "unwritten rule" required anyone wishing to distribute literature to
first obtain the permission of the project manager. This does not amount to
"substantial overbreadth" invalidating the entire trespassing policy. In Justice
Scalia's view, "rarely, if ever, will an overbreadth challenge succeed against a
law or regulation that is not specifically addressed to speech or to conduct
necessarily associated with speech (such as picketing or demonstrating)."
Dean, 170 Ohio App. 3d 292,
2007-Ohio-91 -- Court considers constitutional challenges to
a Cincinnati panhandling ordinance. (1) Solicitation is entitled
to the full protection of the First Amendment. (2) As applicable
in public areas, the ordinance is content neutral and narrowly
tailored to serve public interests. (3) Dean has standing to
challenge the registration provisions, though he has not been
cited for not registering. (4) The provisions for review of
permit denials amounts to a prior restraint on speech, but that
portion of the ordinance is severable.
State v. Baker, 157 Ohio App. 3d 87,
2004-Ohio-2207 -- Ordinance proscribing verbal abuse of a police officer
survives overbreadth attack by being construed to be limited to fighting words.
While it is presumptively invalid for being based on the content of speech, the
basis for the content discrimination consists entirely of the very reason the
entire class of speech is proscribable and the nature of the content
discrimination is such that there is no realistic possibility that official
suppression of ideas is afoot.
State ex rel. Beacon Journal Publishing
Company v. Bond, 98 Ohio St. 3d 146,
2002-Ohio-7117 -- Syllabus: "(1) Juror
names, addresses, and questionnaire responses are not 'public records' as
contemplated by R.C. 149.43. Juror questionnaires without responses, however,
constitute 'public records' for purposes of that section. (2) The First
Amendment qualified right of access extends to juror names, addresses, and
questionnaires, thereby creating a presumption of openness that may be overcome
only 'by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest.' (Press-Enterprise
Co. v. Superior Court , 464 U.S. 501, 510...followed).
State v. Burnett,93 Ohio St. 3d 419,
2001-Ohio-1581 -- Cincinnati drug-exclusion zone ordinance does not violate the
First Amendment right to association. It does violate the right to travel, as
guaranteed by the Fourteenth Amendment, and the home rule authority conferred by
Sec. 3, Art. XVIII of the Ohio Constitution. Compare Johnson v. City of
Cincinnati (2000), 119 F.Supp. 2d 735 holding the ordinance violates the
First Amendment and Double Jeopardy.
Cincinnati v. Jenkins (2001), 146 Ohio
App. 3d 27 -- Cincinnati ordinance proscribing operating a sexually-oriented
business without a sexually-oriented business license held unconstitutional as a
prior restraint on free speech because it does not provide for prompt judicial
review in the event a license is denied by the city treasurer. Also see Huber
Heights v. Liakos (2001), 145 Ohio App. 3d 35.
State v. Spignola (1999), 136 Ohio App. 3d
136 -- The right to use public or governmental property for speech expression
depends on whether the property has the status, through law or tradition, of a
traditional public forum, a nontraditional public forum, or a nonpublic forum.
The green at Ohio University does not qualify as a traditional public forum. The
six sites on the green for which permits may be obtained to communicate with the
public are nontraditional public forums, but the balance of the green, including
a monument where people gather, remains a nonpublic forum. Criminal trespass
conviction of preacher who refused to leave the monument area affirmed.
Arresting him but not hecklers held not to be viewpoint discrimination.
Columbus v. Meyer, 152 Ohio App. 3d 46,
2003-Ohio-1270 -- Defendants were charged with burning a flag without a permit.
No "as applied" First Amendment violation found. Defendants lacked standing as
they never applied for a permit. Broader constitutional challenge fails as well.
Legal Services Corporation v. Velazquez
(2001), 121 S.Ct. 1043 -- Legal Services Corporation funding restrictions
prohibiting local recipients of LSC funds from providing representation in
efforts to amend or challenge existing welfare laws held to violate the First
Akron v. Molyneaux (2001), 144 Ohio App.
3d 421 -- Ordinance banned placing literature on cars on both public and private
property. On facial attack held to be overly broad because it would ban private
property owner from placing literature on vehicles parked on premises.
State v. English, 120 Ohio Misc. 2d 16,
2002-Ohio-5440 -- The word "complaint" as used in
(filing a false complaint against a peace officer) means a
criminal complaint and not a department citizen complaint form.
In any event, the statute violates the Free Speech Clause of the
First Amendment. Also see Akron v. Davenport, Summit App.
Garcetti v. Ceballos (2006), 126 S.Ct.
1951 -- No First Amendment violation found in alleged retaliation against an
assistant D.A. who within the scope of his employment was critical of
allegations in a search warrant affidavit and recommended dismissal of charges.
The D.A. was not speaking as a citizen. Even if he were, the question then would
be justification for the actions taken against him, looking to the governmental
agency's need to provide public services efficiently.
Disciplinary Counsel v. Gardner, 99 Ohio
St. 3d 416,
2003-Ohio-4048 -- Six month actual suspension to attorney who
attacked the probity of the Court of Appeals in a motion for
reconsideration/motion to certify following a disappointing decision. The First
Amendment does not insulate an attorney from professional discipline for
expressing an opinion, during court proceedings, that a judge is corrupt when
the attorney knows that the opinion has no factual basis or is reckless in that
regard. The Free Speech Clause of the Ohio Constitution provides broader
protection of false statements expressed as an opinion but not here. Nor are the
attorney's actions to be weighed in a manner corresponding to defamation cases.
Also see State v. DeMastry, 155 Ohio App. 3d 110,
Columbus v. Schwarzwalder (1974), 39
Ohio St. 2d 61 -- For the Columbus disorderly conduct ordinance
to be constitutionally applied, it must be directed only against
unprotected speech and conduct (i.e. "fighting words)." See
Chaplinsky v. New Hampshire (1942), 315 U.S. 568; Terminello v. Chicago (1949), 337 U.S. 1;
Wilson (1972), 405 U.S. 518; Cohen v. California
(1971), 403 U.S. 15 (word fuck used in context of protest is
neither fighting words or obscene); Kent v. Kelley
(1975), 44 Ohio St. 2d 43 (telling a police officer to "stay
away from the fucking door" and to "get the fuck out of here"
not fighting words.
Cincinnati v. Karlan (1974), 39 Ohio
St. 2d 108, 109-110 -- "The principal pull and haul between
state courts and the high court has centered around a definition
of 'protected speech.'... A majority of the United States
Supreme Court has said 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." Also see Lewis v. New Orleans (1973), 415 U.S.
130; State v. Hoffman (1979), 57 Ohio St. 2d 129; State v. Wylie (1984), 19 Ohio App. 3d 180.
Dayton v. Dunnigan (1995), 103 Ohio
App. 3d 67 -- (1) Aggravated menacing convictions were supported
by the evidence where the defendant, while picketing, asked
workers at an abortion clinic if they wore bullet proof
uniforms, and made express reference to a fatal shooting at
another clinic. (2) There was no First Amendment violation.
Analogy to "fighting words" disorderly conduct cases is
ill-conceived, as the sort of threats giving rise to menacing
charges are not among the class of utterance protected by the
State v. Pressley (1992), 81 Ohio App.
3d 721 -- Straightforward solicitation of another person of the
same sex found not to be protected by the First Amendment,
applying the fighting words doctrine. See dissent.
Akron v. Rasdan (1995), 105 Ohio App.
3d 164, 172 -- Court notes that the Ohio Supreme Court has taken
the position that the overbreadth doctrine is of limited
application and may not be used to attack a criminal statute
outside the context of a First Amendment challenge. [Citing State v. Collier (1991), 62 Ohio St. 3d 267, 272.] However,
the U.S. Supreme Court has used overbreadth in non-First
Amendment situations. [Citing Eisenstadt v. Baird (1972),
405 U.S. 438 and Griswold v. Connecticut (1965), 381 U.S.
479.] Court goes on to conclude the Akron knife/CCW statute
under consideration is unreasonable rather than overbroad.
Cleveland v. Ezell (1997), 121 Ohio
App. 3d 570 -- Cleveland ordinance enforced against members of
religious group selling newspapers in stopped traffic upheld
against vagueness and overbreadth challenges.
In re McAuley (1979), 63 Ohio App. 2d 5
-- Headnote 2: "Newspersons neither have an absolute First
Amendment right nor an absolute statutory right under the shield
law, R.C. 2739.12, to withhold the names of confidential sources
of information in criminal proceedings, whether before a grand
jury, during pre-trial discovery, or at trial. A newsperson's
right to protect the confidentiality of his confidential sources
is a qualified right. Also, defendants do not have an absolute
right to obtain the confidential source of a newsperson's
information. In determining whether a newsperson must divulge
the name of a confidential source of information in a criminal
proceeding, a court must balance the newsperson's First
Amendment right against the defendant's Sixth Amendment right to
a fair trial on a case-by-case basis."
State v. Geis (1981), 2 Ohio App. 3d
258 -- In passing on television station's motion to quash,
court was required to conduct an in camera inspection of
subpoenaed videotapes to determine whether material requested
was relevant and admissible. Also see United States v.
Cuthbertson (3rd Cir. 1981), 651 F. 2d 189.
In re Grand Jury Witness Subpoena of
Abraham (1993), 92 Ohio App. 3d 186 -- (1) Reporter could
not refuse to testify concerning non-confidential, non-source
material which had already been published. (2) Prosecutor was
not required to demonstrate that reporter had relevant
information unavailable from any other source and that there was
a compelling need for that information. (3) Failure of
prosecutor to submit a list of interrogatories was harmless
where there was a blanket refusal to answer questions. Contempt
State v. Wyant (1994), 68 Ohio St. 3d
162 -- Syllabus: "R.C. 2927.12, the Ohio Ethnic Intimidation
Act, is constitutional under the United States and Ohio
Constitutions. (Wisconsin v. Mitchell , 508 U.S.
476, 112 S.Ct. 2194, 124 L.Ed. 2d 436, followed; State v.
Wyant , 64 Ohio St. 3d 566, 597 N.E. 2d 450,
vacated.)" Also see State ex rel Heck v. Kessler
(1995), 72 Ohio St. 3d 98. See Wyant dissent for
proposition that free speech may receive greater protection
under the Ohio Constitution than under the First Amendment. On
this point, compare Eastwood Mall, Inc. v. Slanco
(1994), 68 Ohio St. 3d 221.
State v. Lessin (1993), 67 Ohio St. 3d
487 -- Inciting to violence prosecution arose from demonstration
which included a flag burning, previously held to be a
constitutionally protected activity. Syllabus: "When a criminal
offense charged arises from conduct which encompasses both a
constitutionally protected act and an act that is not
constitutionally protected, failure of the trial court to
instruct the jury that it may not consider evidence of the
constitutionally protected act as proof of the defendant's guilt
is reversible error."
United States v. Grace (1983), 461 U.S.
169 -- Public places, such as streets, sidewalks and parks are
considered public forums historically associated with the free
exercise of speech. While the government may enforce reasonable
regulations as to time, place and manner of expression, it may
not impose an outright ban.
Cleveland v. Bregar (1995), 106 Ohio
App. 3d 713 -- Gateway stadium complex concluded to be private
property for First Amendment purposes. Factual basis relied upon
by the trial court was an unpublished federal district court
opinion. Criminal trespass conviction upheld as requests that
the defendant, holding a large sign, move to a nearby area, were
related to public safety and did not attempt to regulate the
content of speech.
State v. Schmidt (1987), 29 Ohio St. 3d
32 -- Syllabus: "The requirement of
R.C. 3321.04(A)(2) that
application be made to the superintendent of schools for
approval of a home education program reasonably furthers the
state's interest in the education of its citizens and does not
infringe upon the free exercise of religion. Such a requirement
is neither vague nor an improper delegation of authority."
In re Milton (1987), 29 Ohio St. 3d 20
-- Syllabus: "(1) The First Amendment to the United States
Constitution and Section 7, Article I of the Ohio Constitution
safeguard an individual's freedom to both choose and employ
religious beliefs and practices. (2) The state may not compel a
legally competent adult to submit to medical treatment which
would violate that individual's religious beliefs even though
the treatment is arguably life-extending."
Cincinnati v. Thompson (1994), 96 Ohio
App. 3d 7 -- Cincinnati's medical facility trespass ordinance
survives First Amendment challenge by anti-abortion
State v. Scott (1997), 123 Ohio App. 3d
331 -- Abortion protestor was convicted of disorderly conduct.
No First Amendment violation found as it was the loudness of his
speech, not its content, which was the basis for the charge.
Tiffin v. Boor (1996), 109 Ohio App. 3d
337 -- Door to door vacuum cleaner salesman charged under
municipal ordinance banning all door to door commercial
solicitation. Blanket ban held to infringe upon commercial
speech within the protection of the First Amendment.
Euclid v. Mabel (1984), 19 Ohio App. 3d
235 -- Municipal ordinance prohibiting political yard signs and
limiting period of display and number of window signs violates
the First Amendment. Also see Columbus v. Bricker (1998),
131 Ohio App. 3d 676 concerning a ordinance banning signs in a
public right of way enforced against an abortion clinic
Forest Park v. Pelfrey (1995), 108 Ohio
App. 3d 1 -- Local permit restrictions relating to signs were
too restrictive to furnish a reasonable alternative to the
defendant painting an anti-police message on the side of his
State v. Bontrager (1996), 114 Ohio
App. 3d 367 -- Regulation requiring that hunter orange clothing
be work by deer hunters did not infringe upon Amish hunter's
freedom of religion.
In re Miller (1992), 82 Ohio App. 3d 81
-- Juvenile was found guilty of domestic violence following an
altercation with his brother. Terms of probation that the
defendant not dress as a female, not associate with Joe Wicks,
and not go to Caesar's were invalid bore no relationship to the
original charge, did not relate to conduct in itself criminal,
did not serve the statutory ends of probation and infringed upon
First Amendment freedoms.
Return to top of