Summary
In Columbus v. Schwarzwalder (1974), 39 Ohio St.2d 61, we reversed two convictions for the alleged violation of Section 2327.01 of the Columbus Code of Ordinances, the ordinance before us in the present cases.
Summary of this case from Columbus v. FraleyOpinion
Nos. 73-788 and 73-857
Decided July 3, 1974.
Criminal law — Municipal ordinance proscribing disorderly conduct — Elements — Language not punishable as criminal act, when — Intent necessary — Ordinance invalidly applied, when — Conviction reversed, when.
APPEALS from the Court of Appeals for Franklin County.
Appellants were arrested as a result of their participation in an anti-war demonstration on May 11, 1972, near the Ohio State University campus.
Each was convicted in the Franklin County Municipal Court of violating Section 2327.01 of the Columbus Code of Ordinances (disorderly conduct).
Appellants were also charged with second-degree riot, and were acquitted at trial.
In addition, appellant Coleman was charged in the Court of Common Pleas with malicious destruction of property, and was acquitted at trial.
Although the arrests and convictions arose out of completely separate incidents, the activities complained of were sufficiently similar to be joined in these appeals.
The charges read:
"* * * did disturb the good order and quiet of the city by clamor or noise to the annoyance of any of the citizens, or otherwise violate the public peace by indecent and disorderly conduct or by lewd and lascivious behavior * * *" in that defendants unlawfully blocked traffic at 15th and High Streets and used improper and obscene language.
The arrests and convictions stemmed from appellants' alleged chants in taking part in the demonstration. Various testimony attempted to establish that appellants chanted:
"Bullshit, bullshit"; "one, two, three, four, we don't want your racist war"; or "one, two, three, four, we don't want your fucking war."
Appellants each filed timely appeals to the Court of Appeals challenging the constitutional validity of the ordinance, the constitutional validity of the ordinance as it applied to them, and, in the case of appellant Coleman, that the evidence presented was insufficient to support the verdict.
The Court of Appeals affirmed the judgments of conviction. The causes are now before this court pursuant to our allowance of motions to certify the records.
Mr. James J. Hughes, Jr., city attorney, Mr. Daniel W. Johnson, Mr. Michael J. Norris and Mr. Michael J. Morrissey, for appellees.
Messrs. Tyack, Scott Colley and Mr. Paul Scott, for appellant Schwarzwalder.
Mr. Vaughn F. Stocksdale, for appellant Coleman.
The Court of Appeals upheld the convictions in these cases. The court found that the evidence was sufficient for conviction; that the ordinance was not void for overbreadth or vagueness; that the conduct complained of could be punished under the ordinance; and that any language use which was punished was unprotected because it was either "obscene" or "fighting words."
We reverse.
Section 2327.01 of the Columbus Code may punish spoken words. In the causes before us, conduct was also alleged which could have been punished. However, Street v. New York (1969), 394 U.S. 576, mandates that where both speech and conduct have been punished, the ordinance, in order to pass constitutional muster, must be: "* * * authoritatively construed * * * not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. * * *" Lewis v. New Orleans (1974), 415 U.S. ___, 39 L. Ed. 2d 214, 219.
Although this court has construed similar disorderly conduct ordinances, Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, certiorari denied, 410 U.S. 920 (1973); Cincinnati v. Karlan (1973), 35 Ohio St.2d 34, vacated and remanded, Karlan v. Cincinnati (1974), 415 U.S. ___, 42 L.W. 3580; we here reiterate:
First, specific intent must be proved as a part of the offense, so that men of common understanding need not guess at its meaning, and so that the standards of guilt are readily understandable. The conduct here complained of must be done with the intent to "disturb" and "annoy."
Second, where language is complained of, the language can only be narrowly prescribed "obscene" or "fighting words."
In Cohen v. California (1971), 403 U.S. 15, the Supreme Court held that the word "fuck" used in a context of demonstration or protest, and not directed to any person or group in particular, is neither "fighting words" nor "obscene." See, e.g., Lewis v. New Orleans, supra; Vachon v. New Hamphshire (1974), 415 U.S. ___, 42 L.W. 3403; Karlan v. Cincinnati, supra; Lucas v. Arkansas (1974), 415 U.S. ___, 42 L.W. 3581; Hess v. Indiana (1973), 414 U.S. 105.
See, also, Chaplinsky v. New Hampshire (1942), 315 U.S. 568; Terminiello v. Chicago (1949), 337 U.S. 1; Gooding v. Wilson (1972), 405 U.S. 518.
We reaffirm our compliance with the mandates of the United States Supreme Court. In order for the Columbus disorderly conduct ordinance to be constitutionally applied it must be directed only against the types of conduct and unprotected speech delineated in our cases and those cases cited above.
The judgments of the Court of Appeals are reversed, and the defendants are ordered discharged.
Judgments reversed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
HERBERT, J., concurs in the judgment only.