First Amendment


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

"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 grievances."
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.
United 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.
State v. 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.
Alliance 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 "" 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 overly broad.
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 handbills.
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)."
State v. 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 [1984], 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 Amendment.
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 R.C. 2921.15 (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. No. 21522, 2004-Ohio-435.
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, 2003-Ohio-5588, ¶ 76-80.
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; Gooding v. 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 First Amendment.
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 finding affirmed.
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 [1993], 508 U.S. 476, 112 S.Ct. 2194, 124 L.Ed. 2d 436, followed; State v. Wyant [1992], 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 demonstrators.
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 picketer.
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 house.
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.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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