State v. Lessin

OPINIONS OF THE SUPREME COURT OF OHIO

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The State of Ohio, Appellee, v. Lessin, Appellant.

[Cite as State v. Lessin (1993), Ohio St.3d .]

Criminal procedure -- Criminal offense charged arises from

conduct that encompasses both a constitutionally protected

act and an act that is not constitutionally protected --

Trial -- Instructions by court -- Failure of court to

instruct jury that it may not consider evidence of the

constitutionally protected act as proof of defendant's

guilt is reversible error.

When a criminal offense charged arises from conduct that

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.

(No. 92-847 -- Submitted March 17, 1993 -- Decided

October 27, 1993.)

Appeal from the Court of Appeals for Cuyahoga County, No.

61106.

On August 10, 1990, a public demonstration was held in

downtown Cleveland to protest President Bush's decision to send

troops to the Persian Gulf. Defendant-appellant, Cheryl

Lessin, participated in the demonstration to speak on behalf of

the Revolutionary Communist Party. When Lessin arrived at

Public Square between 4:30 and 4:45 p.m., she met with fifteen

to twenty other people directly associated with the

demonstration. Using a portable sound system which was made

available to her, Lessin read her prepared statements, which

denounced the current United States military action and

criticized United States foreign policy in the Middle East. A

small crowd of about a dozen people began to gather. At some

point during Lessin's speech, a fellow demonstrator produced a

United States flag and told the crowd that it should be burned

because it is a symbol of violence. Someone from the crowd,

apparently offended by the demonstrator's proposed actions,

tried to pull the flag out of the demonstrator's hands and a

tug of war over it ensued. While Lessin and the other

demonstrator were trying to regain possession of the flag, they

were also engaging members of the crowd in arguments about flag

burning. Eventually, Lessin recovered the flag and burned it.

While on routine patrol as members of an undercover police

unit, Cleveland Police Officers George Deli and Ignatius Sowa

received two radio broadcasts concerning the disturbance in

front of Terminal Tower. Upon their arrival shortly before

5:00 p.m., the officers parked their unmarked police car about

forty yards from Terminal Tower and approached the situation

from different directions on foot.

At trial, officer Deli gave the following account of what

he saw at the scene. Deli stated that upon exiting the police

car, he observed a crowd of approximately one hundred to one

hundred fifty people in the general vicinity of Terminal

Tower. While some people were just standing, others were

milling about, pushing and shoving each other in apparent

confusion. Cheryl Lessin then caught Deli's attention. He

stated that Lessin was leading two other women in rushing

through the crowd. As this group of three were moving back and

forth, Deli observed Lessin shoving people, throwing punches

and being punched at by members of the crowd. Deli testified

that Lessin was screaming obscenities at the crowd and

hollering, "Fuck the United States. I hate this country. Long

live the Revolutionary Communist Party." Deli stated that

Lessin used these words to "work[] them [the crowd] up into a

frenzy" and thereby urge them to commit acts of violence.

After seeing an elderly woman get knocked down by the crowd,

Deli approached Lessin and arrested her. The crowd then began

to disperse without incident.1

Deli testified that he did not know that a flag had been

burned until after the crowd was brought under control. On

cross-examination, however, Deli admitted that the second radio

broadcast informed the officers that a flag had been burned.

Although Deli did not recall mentioning anything about flag

burning when he arrested Lessin, he later admitted saying, "she

burned the flag" upon arresting her.

Jack Hagan, a Plain Dealer reporter, and Alana Meyers, a

member of an environmental activist group participating in the

protest, testified for the defense. Hagan arrived at Public

Square around 3:30 p.m. or 4:00 p.m. to cover the

demonstration. Both Hagan and Meyers testified that they

observed Lessin speaking to the crowd over the portable sound

system, and the struggle over the flag. Hagan stated that the

size of the crowd and its emotional level grew after Lessin

burned the flag. According to both Hagan's and Meyers'

testimony, they did not see Lessin punch anyone or run through

the crowd flailing her arms in the manner described by the

police. Hagan stated that the only physical contact he

witnessed was when one of the protesters was slapped in the

face by a woman who opposed her views.

Lessin testified on her own behalf. Although she agreed

that there was "pretty heated debating" going on, she neither

encouraged nor witnessed any acts of violence. The only time

she admitted to running around was before the flag was burned

when she briefly tried to recover it from a person in the crowd.

On August 16, 1990, Lessin was indicted by a grand jury

for inciting to violence, R.C. 2917.01. Her jury trial

commenced on October 22, 1990. Before any witnesses took the

stand, the jury was shown three videotapes depicting edited

portions of what occurred on August 10, 1990, at approximately

4:50 p.m. to 5:00 p.m., on Public Square. Lessin was

subsequently convicted as charged and was sentenced to a

one-year term of incarceration. The court of appeals, in a

two-to-one decision, affirmed Lessin's conviction.

This cause is now before the court pursuant to the

allowance of a motion for leave to appeal.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting

Attorney, and George J. Lonjak, Assistant Prosecuting Attorney,

for appellees.

Christopher D. Stanley; Schreiber, Rossman & Assoc. Co.,

L.P.A., and Alan C. Rossman; Friedman & Gilbert and Terry H.

Gilbert; Kaiser & Kaiser and Mark A. Kaiser, for appellant.

Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and Lois

Robinson; and Kevin Francis O'Neill, urging reversal for amicus

curiae, American Civil Liberties Union of Ohio.

Moyer, C.J. Appellant has raised several propositions

of law before this court.2 All propositions have been properly

presented for our review. However, since we have determined

that the trial court's failure to properly instruct the jury

that flag burning as a mode of expression enjoys the full

protection of the First Amendment, our review will be limited

to only that error, mandating reversal of appellant's

conviction.

Appellant was charged and convicted for violating R.C.

2917.01(A)(1), which reads:

"(A) No person shall knowingly engage in conduct designed

to urge or incite another to commit any offense of violence,

when either of the following appl[ies]:

"(1) Such conduct takes place under circumstances which

create a clear and present danger that any offense of violence

will be committed."

The prosecution's theory of the case was not that

appellant made statements directing either her fellow

demonstrators or members of the audience to commit acts of

violence. Officer Deli, in fact, agreed with defense counsel

on cross-examination that Lessin neither said "[g]o and assault

someone," "[c]ommit violence against these other people in the

crowd" or "burn down Terminal Tower." Instead, the state

sought to prove that Lessin violated R.C. 2917.01(A)(1) by

pushing, shoving and punching people as she rushed through an

angry crowd after already having raised its intensity level by

denouncing United States foreign policy and by burning the

United States flag. According to the state's theory, Lessin

violated R.C. 2917.01(A)(1) by provoking the use of force

against herself and her fellow demonstrators. Lessin's actions

thus suggested that she willingly made herself the target of

the hostile crowd's violent reactions in order to dramatize the

strength of her convictions and, perhaps, draw sympathetic

attention to her cause. Also implied by the state's theory is

that Lessin intended to provoke a violent episode in order to

secure coverage of the antiwar demonstration by the local

television news media. Since her conduct was directed towards

inciting violence under potentially explosive conditions where

violence was very likely to occur, the state urged the jury to

find Lessin guilty of violating R.C. 2917.01(A)(1).

It is evident from our review of the record that Lessin

was partly engaged in expressive conduct protected by the First

Amendment during the August 10, 1990 demonstration at Public

Square. Her burning of the flag is afforded the same

protection against criminal punishment under the First and

Fourteenth Amendments as are her words spoken in public

criticism of United States foreign policy. A seminal United

States Supreme Court opinion, Texas v. Johnson (1989), 491 U.S.

397, 109 S.Ct. 2533, 105 L.Ed.2d 342, determined that flag

desecration is "sufficiently imbued with elements of

communication" to implicate the constitutional right to free

speech.3 Because Johnson's political expression (burning the

American flag at a staged political demonstration in Dallas

during the 1984 Republican National Convention) was "restricted

because of the content of the message he conveyed," Johnson,

491 U.S. at 412, 109 S.Ct. at 2543, 105 L.Ed.2d at 359, the

court held that his First Amendment rights were violated.

In rejecting Texas's argument that the state's interest in

preventing breaches of the peace justifies prohibition of

Johnson's selected manner of protest, the United States Supreme

Court stated:

"The State's position, therefore, amounts to a claim that

an audience that takes serious offense at particular expression

is necessarily likely to disturb the peace and that the

expression may be prohibited on this basis. Our precedents do

not countenance such a presumption. On the contrary, they

recognize that a principal 'function of free speech under our

system of government is to invite dispute. It may indeed best

serve its high purpose when it induces a condition of unrest,

creates dissatisfaction with conditions as they are, or even

stirs people to anger.' [Citations omitted.] It would be odd

indeed to conclude both that 'if it is the speaker's opinion

that gives offense, that consequence is a reason for according

it constitutional protection,' [citation omitted] and that the

Government may ban the expression of certain disagreeable ideas

on the unsupported presumption that their very disagreeableness

will provoke violence.

"Thus, we have not permitted the government to assume that

every expression of a provocative idea will incite a riot, but

have instead required careful consideration of the actual

circumstances surrounding such expression, asking whether the

expression 'is directed to inciting or producing imminent

lawless action and is likely to incite or produce such

action.' Brandenburg v. Ohio, 395 U.S. 444, 447, [23 L.Ed.2d

430, 434, 89 S.Ct. 1827, 1829, 48 O.O.2d 320, 322] (1969)

(reviewing circumstances surrounding rally and speeches by Ku

Klux Klan)." Johnson, 491 U.S. at 408-409, 109 S.Ct. at 2542,

105 L.Ed.2d at 356-357,

While Lessin's right to verbally criticize her

government's foreign policy and her right to burn the United

States flag without urging people to commit violent acts can in

no way form the basis of a conviction under R.C. 2917.01,

Lessin's alleged assaults of passersby are not constitutionally

protected from criminal sanction under the First and Fourteenth

Amendments. Our duty is to ensure that the jury's guilty

verdict neither transgressed nor contravened Lessin's freedom

of expression. In this regard, the United States Supreme Court

has cautioned:

"[W]hen a single-count indictment or information charges

the commission of a crime by virtue of the defendant's having

done both a constitutionally protected act and one which may be

unprotected, and a guilty verdict ensues without elucidation,

there is an unacceptable danger that the trier of fact will

have regarded the two acts as 'intertwined' and have rested the

conviction on both together." Street v. New York (1969), 394

U.S. 576, 588, 89 S.Ct. 1354, 1363-1364, 22 L.Ed.2d 572,

582-583.

The risk that a jury will premise its guilty verdict on

constitutionally protected conduct is reduced, if not

completely eliminated, by an accurate and thorough set of jury

instructions which direct the jury to refrain from considering

certain evidence as proof of guilt. In this case, the role of

the jury instructions was critical in obviating the possibility

that each juror would convict based on his or her personal

prejudices against flag burners and Communists. Accordingly,

the question is whether the jury instructions sufficiently

guarded against a guilty verdict being rendered, in whole or

part, upon constitutionally protected political expression.

The Ohio Rules of Criminal Procedure provide that the

trial judge shall charge the jury in accordance with Crim.R.

30.4 Construing Crim.R. 30(A), we have stated that "[a]fter

arguments are completed, a trial court must fully and

completely give the jury all instructions which are relevant

and necessary for the jury to weigh the evidence and discharge

its duty as the fact finder." (Emphasis added.) State v.

Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two

of the syllabus. It is not crucial that the instruction given

contain the precise verbiage as proffered by a party:

"In a criminal case, it is not mandatory upon a trial

court to give requested instructions to the jury verbatim, but

if the requested instructions contain a correct, pertinent

statement of the law and are appropriate to the facts they must

be included, at least in substance, in the court's charge to

the jury. ***" State v. Nelson (1973), 36 Ohio St.2d 79, 65

O.O.2d 222, 303 N.E.2d 865, paragraph one of the syllabus.

Appellant submitted a proposed jury instruction on free

speech which was either rejected in part or amended in part by

the trial judge. The rejected portion of appellant's proposed

instruction, which we find constitutes reversible error, reads

as follows:

"The First Amendment protects free speech. The state

cannot prosecute someone for exercising her right to free

speech. The law applicable to this case is that speaking &

burning the flag are protected speech and are protected by the

[F]irst [A]mendment & the def[endant] cannot be convicted for

such activity." (Emphasis added.)

In determining whether the trial judge erred in failing to

give appellant's proposed instruction relating to the First

Amendment and protected speech, the court of appeals

erroneously employed the abuse of discretion standard of

review. "The term 'abuse of discretion' connotes more than an

error of law or of judgment; it implies that the court's

attitude is unreasonable, arbitrary or unconscionable. ***"

(Citations omitted.) State v. Adams (1980), 62 Ohio St.2d

151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. We

previously applied the abuse of discretion standard to review a

trial court's decision not to give a defendant's requested

instruction that his inebriated condition negated the specific

intent element of the crime of murder pursuant to R.C. 2903.02,

and held that it is within the sound discretion of the trial

court to determine whether the evidence presented at trial is

sufficient to require that instruction be given. State v.

Wolons (1989), 44 Ohio St.3d 64, 541 N.E.2d 443, paragraph two

of the syllabus. However, unlike Wolons, the determination of

whether the trial court erred in failing to give Lessin's

proposed instruction concerning flag burning does not involve

an inquiry going to the sufficiency of the evidence to support

that specific instruction. Here, the fact that Lessin burned

the United States flag is uncontroverted. Therefore, the trial

court had an obligation as a matter of law to give Lessin's

proffered instruction on flag burning because, in the absence

of this instruction, the jury could consider protected speech

as evidence that Lessin was guilty of R.C. 2917.01(A)(1).

Accordingly, we hold that when a criminal offense charged

arises from conduct that 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. See

Williams v. North Carolina (1942), 317 U.S. 287, 292, 63 S.Ct.

207, 210, 87 L.Ed. 279, 282:

"To say that a general verdict of guilty should be upheld

though we cannot know that it did not rest on the invalid

constitutional ground on which the case was submitted to the

jury, would be to countenance a procedure which would cause a

serious impairment of constitutional rights."

We cannot uphold Lessin's conviction for the crime of

inciting violence because it is impossible to say with any

degree of certainty that her burning of the United States flag

was disregarded by the jury in reaching its verdict. The trial

court's instruction given to the jury on free speech5 did not

serve to adequately protect the defendant's rights because it

did not inform the jury that (1) flag burning in the absence of

a call to violence is protected speech under the First

Amendment and (2) the jury is not to consider the fact that

Lessin burned the flag in determining whether she is guilty of

inciting violence. Without being instructed in accordance with

the law set forth in the above-emphasized portion of

appellant's proffered instruction, there is an unacceptable

possibility that the jury considered a constitutionally

protected act in finding her guilty under R.C. 2917.01(A)(1).

The necessity of giving a more precise instruction is further

underscored because of the following exchange which occurred

between defense counsel and the trial judge during voir dire:

"MR. ROSSMAN: How many of you are aware of recent Supreme

Court cases that says [sic] it's okay to burn the flag?

"MR. LONJAK: Objection.

"THE COURT: The objection is sustained. There has been

no Supreme Court case, to my knowledge, that permits under any

circumstances that it's okay to burn the flag. That's why the

lawyers have been instructed not to discuss the issues of law.

And don't do it again, Mr. Rossman.

"MR. ROSSMAN: May I discuss it at sidebar?

"THE COURT: No, you may not." (Emphasis added.)

The trial court's statement is clearly error because it is

in direct conflict with the holding in Texas v. Johnson.

Having determined that the trial judge failed to guard against

the possibility that the jury would consider constitutionally

protected speech in convicting appellant for inciting violence,

we reverse appellant's conviction. Our decision rests in large

part on our awareness of the depth of those personal

convictions that consider flag desecration as a repugnant and

intolerable act. This is the reason persons unhappy with

governmental decisions find burning the United States flag an

irresistible method of communicating the degree of their

dissatisfaction. Therefore, in circumstances like those now

before us, the jury must be instructed in accordance with Texas

v. Johnson so that it does not encroach upon the defendant's

freedom of expression when returning a guilty verdict. We

should not presume that, absent an instruction on flag burning,

a jury will disregard such disgraceful and irreverent action in

its deliberations on whether the flag burner incited a crowd to

violence in violation of R.C. 2917.01(A)(1).

Accordingly, the judgment of the court of appeals

affirming appellant's conviction is reversed and the cause is

remanded to the trial court for proceedings not inconsistent

with this opinion.

Judgment reversed

and cause remanded.

A.W. Sweeney, Wright and Pfeifer, JJ., concur.

Douglas, Resnick and Gwin, JJ., dissent.

W. Scott Gwin, J., of the Fifth Appellate District,

sitting for F.E. Sweeney, J.

FOOTNOTES:

1 Officer Sowa gave a similar account of the events at the

demonstration, which he described as "borderline chaotic." He

stated that no more than five minutes had transpired between

the time he and his partners arrived at Terminal Tower and

Lessin was arrested.

2 The following propositions of law have been raised by

appellant:

1. "Appellant's conviction violates the First Amendment of

the United States Constitution."

(a) "O.R.C. 2917.01 is unconstitutionally overbroad, as

applied and on its face, because it permitted appellant to be

convicted for conduct and speech under the First Amendment to

the United States Constitution."

(b) "Appellant's conviction must be reversed, because it

was premised in large part upon expression protected by the

First Amendment, and any guilty verdict based upon testimony

elicited and evidence presented by the state of appellant's

unprotected conduct, standing alone, was against the manifest

weight of the evidence, not sufficient to sustain a conviction

or a verdict under Ohio Crim.R. 29, and violative of

appellant's right to due process of law."

(c) "The appellant was denied her constitutional right to

a fair trial by the trial court not properly instructing the

jury, thereby allowing them to convict appellant for engaging

in expression protected under the First Amendment."

2. "The court erred in denying the appellant the

opportunity to have a voir dire conducted so that appellant's

preemptory [sic] challenges could be intelligently rendered,

and challenges for cause effectively asserted in violation of

the appellant's Sixth Amendment right of effective assistance

of counsel."

3. "The trial court denied the appellant a fair trial by

not properly instructing the jury as to an essential element of

O.R.C. 2917 [sic]."

4. "Appellant's conviction must be reversed, because the

trial court had secret communications with the jury while it

was deliberating, which prejudiced the appellant."

5. "The appellant was denied a fair trial by the actions,

conduct and prejudice of the trial judge."

6. "Appellant was deprived of her liberty without due

process of law by her conviction and sentencing for inciting to

violence in violation of O.R.C. Section 2917.01 where

appellant's sentence was in violation of her Eighth Amendment

right prohibiting excessive, unfair and cruel and unusual

punishment."

3 Recognizing that the right to freedom of speech is a

more generalized guarantee of freedom of expression, Justice

Brennan, writing for the majority in Johnson, stated:

"The First Amendment literally forbids the abridgment only

of 'speech,' but we have long recognized that its protection

does not end at the spoken or written word. While we have

rejected 'the view that an apparently limitless variety of

conduct can be labeled "speech" whenever the person engaging in

the conduct intends thereby to express an idea,' United States

v. O'Brien [391 U.S. 367 (1968)], supra, at 376 [88 S.Ct. 1673,

1678, 20 L.Ed.2d 672, 679], we have acknowledged that conduct

may be 'sufficiently imbued with elements of communication to

fall within the scope of the First and Fourteenth Amendments,'

Spence [v. Washington (1974)], supra, at 409 [94 S.Ct. 2727,

2730, 41 L.Ed.2d 842, 846].

"In deciding whether particular conduct possesses

sufficient communicative elements to bring the First Amendment

into play, we have asked whether '[a]n intent to convey a

particularized message was present, and [whether] the

likelihood was great that the message would be understood by

those who viewed it.' 418 U.S., at 410-411 [94 S.Ct. at 2730,

41 L.Ed.2d at 847]." Johnson, 491 U.S. at 404, 109 S.Ct. at

2539, 105 L.Ed.2d at 353.

4 The current version of Crim.R. 30 provides:

"(A) Instructions; error; record. At the close of the

evidence or at such earlier time during the trial as the court

reasonably directs, any party may file written requests that

the court instruct the jury on the law as set forth in the

requests. Copies shall be furnished to all other parties at

the time of making the requests. The court shall inform

counsel of its proposed action on the requests prior to

counsel's arguments to the jury and shall give the jury

complete instructions after the arguments are completed. The

court also may give some or all of its instructions to the jury

prior to counsel's arguments. The court need not reduce its

instructions to writing.

"On appeal, a party may not assign as error the giving or

the failure to give any instructions unless the party objects

before the jury retires to consider its verdict, stating

specifically the matter objected to and the grounds of the

objection. Opportunity shall be given to make the objection

out of the hearing of the jury.

"(B) Cautionary instructions. At the commencement and

during the course of the trial, the court may give the jury

cautionary and other instructions of law relating to trial

procedure, credibility and weight of the evidence, and the duty

and function of the jury and may acquaint the jury generally

with the nature of the case."

5 That instruction reads:

"The [F]irst Amendment to the United States Constitution

guarantees to all persons the right to free speech and the

government may not prohibit the expression of an idea, simply

because society finds the idea itself offensive or disagreable

[sic].

"The offense charged in this case applies to situations

where speech and or conduct is abused, but only when the speech

or expression consciously, under explosive circumstances, spurs

others to violence.

"You will hear the term [']clear and present danger[']

during the course of further instructions. This means that the

state may limit speech and/or conduct which promotes or incites

violence provided there is an obvious and immediate danger that

such conduct or speech will actually result in violence, not

simply public inconvenience, annoyance or unrest.

"To support conviction, the State of Ohio must prove that

the defendant in fact, engaged in conduct or speech which urged

or incited others to act violently."

Douglas, J., dissenting. This case is not about flag

burning. This case is not a Texas v. Johnson (1989), 491 U.S.

397, 109 S.Ct. 2533, 105 L.Ed.2d 342 case. This case is not

about the right to assemble publicly. This case is not about

free speech. This case is about a woman who was charged, tried

and convicted of violating R.C. 2917.01(A)(1), which law

prohibits any person from inciting another person(s) to commit

any offense of violence. The record here, even as set forth in

the majority opinion, leads to the inescapable conclusion that

appellant's actions (with or without the flag burning) could

reasonably be construed by a jury to contravene the

proscription of R.C. 2917.01(A)(1).

Appellant was not merely expressing a provocative idea.

She was also acting and it is this behavior that offends the

statute. There has been much discussion in this case

concerning Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S.Ct.

1827, 23 L.Ed.2d 430. I believe the proper emphasis from

Brandenburg, in the context of the case at bar, should be on

Brandenburg's language that the states may not prohibit the

advocacy of the use of force or of law violation "* * * except

where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce such

action." (Footnote omitted and emphasis added.) Id. at 447,

89 S.Ct. at 1829, 23 L.Ed.2d at 434.

That is exactly what happened here -- appellant's actions

incited and brought about imminent lawlessness. In this

regard, I find State v. Hoffman (1979), 57 Ohio St. 2d 129, 11

O.O.3d 298, 387 N.E.2d 239, both instructive and helpful. The

jury in the instant case, the trial judge, and two judges of

the court of appeals believed, and I believe, that appellant

crossed the line and, thereby, clearly violated R.C.

2917.01(A)(1). Her actions, for which she was convicted, have

nothing to do with her burning the flag or with free speech.

The verdict of the jury, the judgment of the trial court and

that of the court of appeals should be affirmed. Because the

majority does not do so, I respectfully dissent.

Resnick and Gwin, JJ., concur in the foregoing dissenting

opinion.

Gwin, J., dissenting. I respectfully disagree with the

majority's conclusion that the act of burning the national flag

is per se protected expression under the First Amendment to the

United States Constitution and that the jury could not consider

Lessin's act of burning the national flag in determining

whether she was guilty of inciting violence in violation of

R.C. 2917.01(A)(1).

To read the majority opinion, the citizens of Ohio would

conclude that a person who burns the American flag is granted

absolute immunity from criminal prosecution. In fact, it would

appear the majority is giving the act of burning our national

flag more protection than what is afforded free speech under

the First Amendment. The United States Supreme Court has

stated:

"[W]e reject the view that freedom of speech * * * as

protected by the First and Fourteenth Amendments, are

'absolutes,' not only in the undoubted sense that where the

constitutional protection exists it must prevail, but also in

the sense that the scope of that protection must be gathered

solely from a literal reading of the First Amendment.

Throughout its history this Court has consistently recognized

at least two ways in which constitutionally protected freedom

of speech is narrower than an unlimited license to talk. On

the one hand, certain forms of speech, or speech in certain

contexts, has been considered outside the scope of

constitutional protection. See, e.g., Schenck v. United

States, 249 U.S. 47 [39 S.Ct. 247, 63 L.Ed. 470]; Chaplinsky v.

New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031];

Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed.

1137]; Beauharnais v. Illinois, 343 U.S. 250 [72 S.Ct. 725, 96

L.Ed. 919]; Yates v. United States, 354 U.S. 298 [77 S.Ct.

1064, 1 L.Ed.2d 1356]; Roth v. United States, 354 U.S. 476 [77

S.Ct. 1304, 1 L.Ed.2d 1498]. On the other hand, general

regulatory statutes, not intended to control the content of

speech but incidentally limiting its unfettered exercise, have

not been regarded as the type of law the First or Fourteenth

Amendment forbade Congress or the States to pass, when they

have been found justified by subordinating valid governmental

interests, a prerequisite to constitutionality which has

necessarily involved a weighing of the governmental interest

involved." Konigsberg v. State Bar of California (1961), 366

U.S. 36, 49-51, 81 S.Ct. 997, 1006-1007, 6 L.Ed.2d 105, 116-117.

It has been well established that the First Amendment does

not afford protection to a person who screams "fire" in a

crowded theater. Nor does the right to free speech allow a

person to defame another or utter fighting words which are

likely to incite imminent violence. See Brandenburg v. Ohio

(1969), 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430. Under the

same logic, the government has a valid interest in regulating

speech and expression which under certain circumstances are

likely to create "a clear and present danger." Schenck v.

United States, supra, at 52, 39 S.Ct. at 249, 63 L.Ed. at 473.

Accordingly, it is of utmost importance in measuring the

protection afforded to free expression to carefully consider

the surrounding circumstances of the expression to determine

whether it is directed toward inciting or producing imminent

lawless action and is likely to incite or produce such action.

Brandenburg at 447, 89 S.Ct. at 1829, 23 L.Ed.2d at 434.

Although is is well established that the First Amendment

does not afford absolute protection for all speech and

expression, the majority of this court is of the opinion that

all instances of burning the United States flag are

constitutionally protected from criminal sanction. In reaching

this decision, the majority relies on Texas v. Johnson (1989),

491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342. In that case,

Gregory Lee Johnson was convicted under a Texas statute

prohibiting a person from intentionally or knowingly

desecrating a state or national flag. In affirming the

reversal of Johnson's conviction, the United States Supreme

Court determined that the Texas statute impermissibly infringed

upon a person's right to freedom of speech and expression

because such person could be convicted for burning a flag even

though this act did not threaten to disturb the peace. In

other words, a resident of Texas could have been charged with

violating the criminal statute for burning a national flag in

the privacy of his own home or under circumstances where it

offended no one. This statute clearly infringed upon that

person's right to freely express his opinions under the First

Amendment.

Nevertheless, the United States Supreme Court did not hold

that in every instance a person who burns a flag is afforded

absolute protection from criminal prosecution. The First

Amendment certainly does not afford protection to a heckler who

would appear at a United States war veteran's ceremony

screaming epithets against the United States and burning the

national flag on stage. This situation would likely create

imminent lawlessness in the form of a riot. The heckler's

right to free speech and expression would be outweighed by the

state's interest in preserving the peace, and, under those

circumstances, the state would be permitted to criminally

charge the heckler with inciting violence. Under today's

ruling, the state of Ohio has no recourse in preventing this

imminent lawlessness.

The statute upon which Lessin was charged and convicted

reads that "[n]o person shall knowingly engage in conduct

designed to urge or incite another to commit any offense of

violence * * * when * * * [s]uch conduct takes place under

circumstances which create a clear and present danger that any

offense of violence will be committed[.]" R.C. 2917.01(A)(1).

This statute is specifically and narrowly designed to protect

the state from expression which is directed toward inciting or

producing imminent lawlessness action and which is likely to

incite or produce such action. This statute complies with the

law set forth in Brandenburg, supra. Therefore, in determining

whether a person has violated the Ohio statute which proscribes

inciting violence, the totality of the circumstances must be

considered. These circumstances include, but are not limited

to, Lessin's: screaming of obscenities; hollering, "Fuck the

United States[,] I hate this country"; running through the

crowd; and burning the national flag.

Therefore, it was not reversible error for the trial court

to decline instructing the jury that it may not consider

evidence of the burning the United States flag as proof of

Lessin's guilt of inciting violence. The "totality of

circumstances" test would instead require the trial court to

instruct the jury that in some instances flag burning is a

constitutionally protected act, but under other circumstances

it is not.

Douglas and Resnick, JJ., concur in the foregoing

dissenting opinion.