In America, should we accept as expressions of public opinion speech and conduct that defy our traditions of etiquette and civility? Is civility a word with a definition that is, or should be, coextensive with the public peace and order. In the future, perhaps we could encourage thought and discussion about our world in a kind and peaceful manner by requiring every licensed driver in the State of Ohio be automatically registered to vote upon mere renewal of the State issued drivers license. But, until such legislation, we might consider the propriety of the exercise of prosecutorial discretion in regulating hateful speech and conduct under Ohio law. At a minimum, State law, and eventually Federal, should be invoked to criminalize speech, and similarly expressive conduct, either intended, or likely, to evoke a harmful or violent response from nearby persons, in general, or one given person to whom a hateful or derogatory comment is directed.
Under longstanding Ohio judicial precedent, a criminal charge may be brought against a person for words, even by virtue of their content. Words may be deemed “likely, by their very utterance, to … invoke the average person to an immediate retaliatory breach of the peace.” State v. Turner, 2007 Ohio 5449, ¶ 109 (Ct. App. 8th Dist. 2007)(citing, State v. Hoffman, 57 Ohio St. 2d 12, at ¶ 1 (1979). In offering this view of the First Amendment, the Court in Turner, was commenting upon Ohio Revised Code § 2917.11(A), effective Jan. 25, 2002, which was enacted after the statements of the Ohio Supreme Court in Hoffman. The Court in Turner also concluded that such speech, regardless of content, had been previously found to be “fighting words” under Ohio law. Turner, 2007 Ohio 5449, at ¶ 109.
Since 2002, Ohio courts, State and Federal, have not been asked frequently to rule upon the manner in which Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.” In the advent of the many complicated political and social discussions during this time in American history, we should look to the long extant legal provisions that have been reviewed across the country. § 2917.11 is such a statute. For, this law expressly deems actus reus both: (1) “offensively coarse utterance [and] gesture[,]” as well as (2) “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3). Chapter 2917 of the Ohio Revised Code designates this criminal law “Disorderly Conduct,” as one of many “Offenses Against the Public Peace.”
As citizens in our communities in the State of Ohio, the recognition and proscription of fighting words and hate speech derive from the foundations of our democracy, and their requisite respect for the individual. Our laws against speech and gestures that invoke either a fear of violence, violent urges, or violence itself deter those inclined to so act. Even more importantly, these criminal laws serve as a didactic to instill a code of conduct we rely upon in a community in which the people govern. Social activity and public debate should not provoke violence. We should, instead, look to partisan politics and the creation of third parties in our traditional two-party system, as well as the judicial third branch of government for adversarial resolution of disputes by courts and arbitrators.
Though the United States separated itself from England, our law owes much to the earlier enacted hate speech law in the United Kingdom, Public Order Act 1986, Chapter 64, Part I, Section 4, as amended (http://www.legislation.gov.uk/ukpga/1986/64/section/4). In its broadest provision, this law prohibits acts “whereby [a] person is likely to believe that … violence would be used or it is likely that …. violence will be provoked.” This does not impose an element of criminal intent upon the actor. Moreover, it also declares a person guilty who “distributes or displays to another person any writing [or] sign … threatening, abusive or insulting.” Id.
This British law would meet Justice Scalia’s requirements for constitutional restrictions upon speech in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Essentially, R.A.V. prohibits restrictions upon speech and conduct which treat speech on one topic or within the one category differently, by virtue of viewpoint. In its Syllabus, R.A.V. states:
The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional, because it imposes special prohibitions on those speakers who express views on the disfavored subjects of “race, color, creed, religion or gender.” At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation, the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing “fighting words” that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but not by their opponents. St. Paul’s desire to communicate to minority groups that it does not condone the “group hatred” of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393.
505 U.S. at 378. And, the municipal ordinance at issue in R.A.V. proscribed conduct that “one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’” Id. Arguably, this imposes a criminal penalty without a requirement of criminal intent.
Both the UK statue and R.C. § 2917.11 prohibit the act of improper speech or conduct, in itself, regardless of intent or an effect of actually producing a violent response. This is in the nature of a balancing of the interests of the public good in the guarantee of our right to free speech versus the proper regulation of speech and conduct harmful to the public good and the public peace
Speech likely to incite violence may possess noteworthy ideas we seek to have fully presented before us. And, we may not censor speech or conduct potentially deemed fighting words or acts because they exhibit a certain content or view. Rather, to be hate speech, the words, gestures or conduct used may not be found to be essential to the ideas sought to be conveyed. Instead, the words or conduct must go beyond free expression to communicate via a means not proper for civil discussion within a representative democracy of a self-governing people. R.A.V., 505 U.S., at 385.
In Ohio Revised Code § 2917.11, we do not justify the criminalization of acts and speech with reference to their viewpoint. Turner; Hoffman; State v. Cunningham, 2006 Ohio 6373, at ¶ 22 (Ct. App. 10th Dist. 2006); accord, R.A.V., 505 U.S., at 389. In the thought of Justice White offered in his Concurring Opinion in R.A.V.:
Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky, 315 U.S. at 572. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. See ante at 387.
In light of the many creative legislative proposals in Ohio regarding Sanctuary State and Sanctuary City status, as well as the mandatory voter registration of licensed drivers, would Ohio political subdivisions benefit from more stringent fighting word or hate speech provisions. Such local laws could be tailored to their unique popular demographics, topics in discussion, and independent concerns of State and Federal law.
The First Amendment exists to ensure that when the popular majority imposes its lawful preferences as to the obligatory manner of public debate, and specifies and restricts certain categories of speech, it does not penalize the speech or conduct it specifies and restricts by topic content or viewpoint. We must enact our restrictions and adjudicate each defendant presented as possibly guilty with the requisite sensibilities of other than the hateful, resentful and tyrannous majority.
Lori Gayle Nuckolls
Philosophy, Law and Politics 