State v. Phipps

SweeNEY, J.,

dissenting. While I agree with the majority’s analysis that R. C. 2907.07(B) is facially over-broad, I must dissent from their attempt to “authoritatively construe” the statute so as to save it from a First Amendment attack. By simply adding the catch-phrase, “unless the solicitation, by its very utterance, inflicts injury or is likely to provoke the average person to an immediate retaliatory breach of the peace,” the majority opinion attempts to limit the application of R. C. 2907.07 (B) to the “fighting words” exception to protected speech. However, this attempt seriously blurs the long-standing distinction between fighting words and merely offensive speech.

The United States Supreme Court has distinguished between speech which, though vulgar or offensive, is protected, and unprotected fighting words, on. the basis that the latter is limited to “those personally abusive epithets which, when addressed to the ordinary citizen are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. California (1971), 403 U. S. 15, 20 . This court recognized the distinction when we stated in Cincinnati v. Karlan (1974), 39 Ohio St. 2d *281 107 , 110: 4 ‘ [N] o' matter how rude, abusive, .offefisive, ’derisive, valvar,’insulting, erncTe, profane or opprobrious spoken words mav seem to be, their utterance may not be made a crime unless'.they are fighting words, a,s defined byi * * * [the United States Supreme Court].”-. Yet. this crucial •distinction disappears when the majority declares that, 4‘ [w]hen a person ‘knows’ that the person solicited will'be offended, or the person does so ‘ reckless Tly] ’ and heedlessly without regard to the consequences, such solicitations are likely to provoke the average person to retaliation and thereby cause a breach of the peace.” (Emphasist partially added.) Thus, this court now seems willing to equate offensive speech with fighting words. • To this .writer the majority’s stance appears as a dangerous narrowing of First Amendment freedoms.

The majority is using the concept of “authoritative construction”, as a vehicle for salvaging constitutionally deficient legislation. Here, they have not so: much construed, as they have contorted the meaning of R. C..2907.-07(B). To equate a deviant sexual proposal,, no matter how crude or tasteless, with a “personally abusive epithet” exceeds the limits of rational statutory interpretation..

In conclusion, I cannot join in the majority’s freewheeling use of the concept of “authoritative construction” to re-draft this facially unconstitutional statute. I believe that the privacy interests the majority seeks so strenuously to safeguard are adequately protected by R. C.1 2917.11 which we recently construed in State v. Hoffman (1979), 57 Ohio St. 2d 129 .

Accordingly, I would affirm the judgment of the Court of Appeals on the basis that R. C. 2907.07(B) is an unconstitutional infringement upon freedom of speech.