Is a Failure to Prosecute Utterances of “Hate Speech” and “Fighting Words” a Violation of Due Process by Ohio County Prosecutors in Not Protecting the Victim’s Constitutional Rights of Liberty, Privacy and Personhood?

Under Ohio law, Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.” This statute expressly prescribes “offensively coarse utterance [and] gesture[,]” and “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3). This law lies within criminal provisions of the Ohio Revised Code denominated “Disorderly Conduct,” as one of many “Offenses Against the Public Peace” of Chapter 2917. Has any duly elected Ohio County Prosecutor recently invoked this provision?

How does the community resident evaluate whether the absence of arrest and prosecution in his or her Ohio County is a proper exercise of prosecutorial discretion in regulating conduct under Ohio law? In what other ways are the constitutionally protected, basic and fundamental rights of Ohio citizens and residents to privacy and personhood, as incumbent within our essential rights of liberty and freedom, protected from independent, idiosyncratic, and isolated acts of speech contrary to personal integrity?

Ohio Revised Code § 2917.11 should be used by Ohio County Prosecutors to guide popular conduct, as a didactic tool. Section 2917.11 deters visceral, unkind speech directed, especially, to a person the potential perpetrator does not even know. And, importantly, this law looks to proscribe harmful words spoken when no logical rationale exists for devolving into such conduct when long historically permitted forms of expression and advocacy exist.

If traditional forms of expression, speech and participatory politics are possible, conduct subject to prosecution under Ohio Revised Code § 2917.17 only evokes either fear harmful to one’s sense of personhood or, more difficultly, fear expressed in the form of a harmful or violent response from the victim of the unkind speech. Do we instead prosecute the victim for engaging in an improper response to unprovoked hate speech and let the utterer of fighting words go free? Why is the fearful, dependent spouse convicted of homicide for shooting a long abusive, domineering spouse while asleep and unlikely to rise up in confrontation? When is self-defense illegal?

Is an Ohio County Prosecutor’s failure to prosecute hate speech and fighting words an unconstitutional disregard for the right of every individual to liberty, privacy and personal integrity, all long respected by the U.S. Supreme Court? Should the Ohio County Prosecutor, as a state actor, be subject to civil action, under Section 1983 of Title 42 of the U.S. Code, for such a failure to prosecute? The right to Due Process includes one’s liberty interests, and the duty of the Ohio County Prosecutor to protect the liberty interests of Ohio citizens and residents subject to personally intrusive fighting words and hate speech by prosecuting those engaging in hateful speech. Does Section 1983 include a substantive due process right to challenge in Federal Court an Ohio County Prosecutor for the absence of prosecution of fighting words perpetrators under Ohio law?

The consequences arising from an Ohio County Prosecutor’s decision to not prosecute acts criminal under Ohio Revised Code § 2917.11 are self-defining and derive inherently from the Anglo-American Common Law giving rise to the U.S. Constitution. A want of review, regulation and criminalization results in a perpetuation and acculturation of illegal intent and conduct within our country. American criminal law has many purposes, including, deterrence, rehabilitation, restitution and retribution. Laws exist on the “statute books” for a reason. These are the reasons for Ohio Revised Code § 2917.11 .

How do we begin? How does the first individual abused as to self and personhood come forward in Federal Court and ask why his or her Ohio County Prosecutor did not seek redress on his or her behalf under expressly worded Ohio Law? Should such prosecution on the individual’s behalf be so permissive, and not a mandatory obligation of the duly ethical Ohio County Prosecutor under the professional rules and judicial decisions of the Ohio Supreme Court?

Life in our American Republic requires free speech and a sense of participation without fear and without improper inhibition. Justice and fairness in our democracy require that Ohio County Prosecutors act zealously, with best efforts and with a sense of being conservative to the utmost. Non action and a failure to prosecute potential perpetrators under enacted legislation is not conservative, it is the opposite. Prosecutorial discretion is both permissive and mandatory. Where do our State and Federal Courts draw the line?

In a democracy, free speech is a property right. It is not to only be accorded governmental protection as a permissive privilege. In America, a citizen or resident should not feel as if he or she must ask permission of an equal to speak or live, for fear of becoming a victim of hostile words. He or she should freely speak. If the equal is inhibiting in a manner contrary to § 2917.11, the Ohio County Prosecutor should act.

Lori Gayle Nuckolls

America Relies Upon a Learned and Informed Public

In the United States, as a country of a majority population that is not indigenous to its North American soil, how do we reconcile nationalism and democracy? As a community of diverse ethnic origins and heritages, diverse faiths, and diverse periods of time resident within the county, can an existence of a nation-state community ever be achieved? Does the theory of the “melting pot” of an immigrant nation undo properly existing cultural lines of identity that are distinct, have merit and are centuries old?

We should encourage a community diverse in cultural identity that lives under the governing principles of American democracy: equality, freedom, and justice. In America, its people have freely chosen to reside under America’s governing principles. Citizenship and the rights of noncitizen residents transcend the diverse cultural identities of national origin. America’s governing principles, constitutions and laws create an equal right to personhood and identity that transcends governmental decision making based upon stereotypes and, especially pejorative, presumptions. The rule of law does not look to one’s culture, ethnicity or religion.

The governing principles of America are created, respected and maintained by an academically learned intelligentsia that exercises a just governance of the majority. An educated public and deference to individual merit and ability are the foundations of a democracy. A state cannot survive without an educated public, whether possessing one or many national identities.

In our world, only representative democracies are viable forms of government. Direct democracies defy the economy of scale required for complex decision making and regulation in the modern age and are not even attempted. Dictatorships, with the veil of legislative and military decision-making especially during the post-colonial period the 1900’s, can neither demand nor evoke a legally compliant population of self-governing individuals.

Without a public that understands the principles of America as a country from a young age of early education between grades 4 to 6, with reaffirmation in between both grades 7 to 9 and grades 10 to 12, our public will not be able to participate as citizens and residents as they engage in specialized careers of science, business and nonpublic policy fields. Thus, all college students should have a required course in the fundamentals of American government.

All in America bear the responsibility of treating all among us as free and equal, with rights and privileges of fairness and justice. Our world is complex, and all Americans must be sufficiently learned to debate and understand America and their own place in the world.

Lori Gayle Nuckolls, Esq.

In Pursuit of Both Common Good and Public Interest, Governmental Entities Should be Required to Promote Self-Governance (Written testimony before the Joint Committee on Agency Rule Review of the Ohio General Assembly.)

The text below is of a letter submitted yesterday, Christmas Day, in comment testimony before the Ohio General Assembly Joint Committee on Agency Rule Review. It concerns proposed rule making by the Attorney General for the State of Ohio in implementation of federal funding to provide support services to victims of sexual abuse. It is to be considered during the Committee’s next regularly scheduled meeting, tentatively scheduled for January 8, 2018.

Lori Gayle Nuckolls, Esq.

December 25, 2017

Joint Committee on Agency Rule Review
The Ohio General Assembly
Vern Riffe Center
77 South High Street
Concourse Level
Columbus, Ohio 43215

Sent Via Email to: jcarr1@jcarr.state.oh.us

Re: Attorney General Proposed Rules 109:7-1-05 (disbursements) and 109:7-1-06 (definitions)

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed addition to the Ohio Administrative Code of new rules 109:7-1-05 and 109:7-1-06 by the Attorney General regarding the implementation of funding provisions for rape crisis programs under the auspices of the federal centers for disease prevention and control and denominated in the Ohio Revised Code as the “Rape crisis program trust fund.” Ohio Revised Code § 109.921. This program, as enacted, envisions comprehensive services for victims of sexual trauma.

The Ohio Revised Code mandates the Attorney General to provide funding to a “Rape crisis program,” which, as most broadly defined by statute, includes a “nonprofit [nongovernmental] entity that provides a full continuum of services to victims of sexual assault, including hotlines, victim advocacy, and support services from the onset of the need for services through the completion of healing ….” § 109.921(A)(1)(c) (emphasis added). And, the Ohio Revised Code states that “[a] rape crisis program that receives funding … shall use the money received … for the following purposes [among others]:” “(2) … hotlines, victim advocacy, or support services.” O.R.C. § 109.921(D) (emphasis added). However, in contradiction to the foregoing express grant of statutory authority for the funding of “victim advocacy,” the new rule 109-7-05 proposed by the Attorney General expressly prohibits the use of funds for “Lobbying activities.” Proposed Rule 109-7-05(F)(1).

It does not seem that the Attorney General has included a definition of “Lobbying” in the proposed new rules. See, Proposed Rule 109:7-1-06 (definitions governing the trust fund). Nor does a definition of either “advocacy” or “lobbying” seem to appear in any other source of authority that would be applicable to this funding provision, apart and distinct from those generally previously existing under Ohio law. See, O.A.C. § 109:7-01-03 (definitions governing trust fund) and O.A.C. § 109:7-1-04 (procedures for submitting funding requests). See also, O.R.C. §101.70(E) (to “Actively advocate” deemed “Legislative lobbying.”); O.R.C. § 121.60(I) (“[C]ontacts made to promote, oppose, or otherwise influence … an executive agency decision” deemed “lobbying activity.”); and O.R.C. § 3517.20(A)(1), (2), & (3) (defining “Political communications” as those statements “for or against” or “advertising”).

The funding by the Attorney General should encourage productive informal discussions on diverse topics. The proposed funding would, and is needed to, do so. However, the prohibition on lobbying efforts in the proposed rule should be clarified for those entities to be funded. Discussion by program participants should relate to important, current issues in the community, especially as to those seeking support for transitions in difficult times. Activities financed under this trust fund would be an act of the governmental or nonprofit entity, and would not constitute a use of the funds by individual persons in behest of personal expression on various topics. Thus, some revision is indicated for the avoidance of express contradiction of the proposed rules with the authorizing legislation, and even as to contradiction within the very proposed rules, as to the use by the Attorney General of both “advocacy” and “lobbying.”

I offer that the Attorney General should modify the proposed rules to not expressly reach issues of “lobbying,” which under Ohio law includes advocacy. Rather, the Attorney General should only expect funding recipients to remain in compliance with the general laws governing lobbying and political influence. Consequently, funded centers could guide program participants on an individual basis as to personal issues and only be reviewed if they as fund recipients assert interested positions. This would prohibit persuasive statements or presentations by the funded entities which would constitute lobbying under Ohio law, yet still permit funds to support conversation among participants. And, the written informational material and oral presentations of advocacy organizations unaffiliated with the fund recipients could be made available in the ordinary course to permit informed decision making by program participants.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls