# State v. Lessin

> Ohio Supreme Court · October 26, 1993 · 1993 Ohio 52

URL: https://www.frixlaw.com/law-library/cases/11147426

## Case

- **Court:** Ohio Supreme Court
- **Decided:** October 26, 1993
- **Citations:** 1993 Ohio 52
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Moyer, C.J.
- **Cited by:** 25 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11147426. Public record. Not legal advice.