# State v. Flynt > Ohio Supreme Court · July 16, 1980 · 63 Ohio St. 2d 132 URL: https://www.frixlaw.com/law-library/cases/6756963 ## Case - **Full name:** The State of Ohio v. Flynt - **Court:** Ohio Supreme Court - **Decided:** July 16, 1980 - **Citations:** 63 Ohio St. 2d 132; 17 Ohio Op. 3d 81; 407 N.E.2d 15; 1980 Ohio LEXIS 798 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Brown, Celebrezze, Herbert, Holmes, Locher, Sweeney - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6756963 ## Opinion text Paul W. Brown, J., dissenting. I agree with the test used by the majority and I also agree that there is a heavy burden upon the defendants to demonstrate intentional or purposeful discrimination. I would hold, however, that the defendants sustained this burden and that the Court of Appeals and this court wrongfully substituted their own version of the facts for that of the trier of fact in the instant cause. It is well-settled that in reviewing a decision rendered by a trial court without a jury, a Court of Appeals will indulge in every reasonable presumption in favor of findings made by the court below as a basis for its decision. Beach v. Sweeney (1958), 167 Ohio St. 477 . Any fact necessary to sustain the judgment, including reasonable inferences drawn therefrom, must be presumed to have been found by the trial court if evidence was presented in support of such finding. See Brescoll v. Nationwide Mut. Ins. Co. (1961), 116 Ohio App. 537, 543 ; Thayer v. Shorey (1934), 287 Mass. 76 , 191 N.E. 435 . The appellate courts in the instant cause have deviated from this principle. Applying the test used by the majority, governing discriminatory prosecutions, quoted from United States v. Berrios (C.A. 2, 1974), 501 F. 2d 1207, 1211 , it is apparent that the first prong of that test is met. The defendants presented evidence, the witness Taylor conceded, and the trial court found, 3 that the city of Cleveland had never before prosecuted *137 a magazine like Hustler, despite the fact that magazines similar to or pictorially “stronger” than Hustler were available within the community. Although Taylor justified this as a test case, there was substantial evidence indicating the contrary. Lengthy investigations of similar magazines were dropped without taking even preliminary steps toward prosecution. Taylor’s attempted justification, i.e., that he was awaiting the outcome of this case, was contradicted by his subsequent testimony concerning the likelihood of general enforcement in the future if he received a favorable judgment in the case. When asked whether he would then pursue other magazines of this type, Taylor testified that the decision was subject to approval from his superiors—this, despite the fact that by his own admission, Taylor possessed the exclusive delegated authority to select which cases to prosecute and he alone had made the decision to pursue Hustler. Furthermore, the evidence strongly indicated that this prosecution was initiated, not to clarify the status of obscenity laws, but rather in response to public reaction to political cartoons. In light of the trial court’s express rejection of the test case rationale, the majority, by selectively adopting testimony supportive of finding this prosecution to be a test case and rejecting evidence to the contrary, improperly impinged on the trial court’s prerogative as trier of fact to weigh the evidence and evaluate the credibility of the witnesses. A prosecutor should not be allowed to merely raise the claim that a particular prosecution is a test case, where the evidence clearly demonstrates that to the contrary a discriminatory intent is present. ( As to the second prong of the Berrios test, i.e., that the discriminatory selection is invidious or in bad faith if based upon impermissible considerations, substantial evidence was presented to establish that the prosecution was initiated (1) on the basis of public sentiment and (2) for the purpose of inhibiting First Amendment rights. Either motivation, standing alone, would be a sufficient basis for a finding of invidious selection or bad faith. *138 Taylor explained that he would need to consult his superiors concerning future prosecutions of magazines similar to Hustler because of publicity surrounding obscenity prosecutions. Taylor stated that public reaction was a legitimate consideration in obscenity cases because strong public interest impeded the speedy disposition of these cases and because public response was a barometer of the community’s perception of obscenity. The trial court properly took exception to these proffered justifications as a basis for selecting cases to prosecute. The judge noted that the progress of a trial is not a function of attendant publicity, nor should public reaction be used as an index to the community’s ideas as to what constitutes obscenity; such a determination being within the domain of a jury. A reasonable inference to be drawn from this testimony, and one which the trial court apparently drew, 4 is that the defendants were prosecuted on the basis of unfavorable public sentiment. Upon this evidence the trial court could reasonably have found that this prosecution was initiated in “bad faith,” i.e., that it was grounded upon an arbitrary standard to pursue only those whom the public held in disfavor. As the court noted in United States v. Torquato (C.A. 3, 1979), 602 F. 2d 564 , 568: “ * * *To permit criminal prosecutions to be initiated on the basis of arbitrary or irrational factors would be to transform the prosecutorial function from one protecting the public interest through impartial enforcement of the rule of law to one permitting the exercise of prosecutorial power based on personal or political bias.” It is our obligation to prevent such personal abuses of governmental power. There are also indications that the prosecution was brought to chill the defendants’ First Amendment rights. There was strong evidence that the prosecution was intiated on the basis of the political cartoon depicting sexual activity between political figures and the Statue of Liberty (as well as the cartoon displaying Uncle Sam with his pants down). This was admitted during the course of a television interview and at *139 the hearing, although Taylor subsequently attempted to retract and qualify these statements. Taylor conceded that the cartoon was “the most protected thing in the whole magazine.” He could hardly argue otherwise, in light of Papish v. Univ. of Missouri Curators (1973), 410 U.S. 667 , wherein the United States Supreme Court held that a cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice was not constitutionally obscene. This testimony alone served as an independent basis for the trial court to find bad faith through the inhibition of First Amendment rights. I conclude that having made a proper showing of discriminatory prosecution, the defendants are entitled to discharge. Such a determination in no way reflects upon the guilt or innocence of the defendants. 5 If, and when, the public authorities decided to undertake a generalized enforcement of the law, the defendants could again be charged. There are no findings of fact or conclusions of law in the record. There is, *137 however, a document entitled “Memorandum to Attorneys,” authorized by the trial judge, indicating some of the factual considerations supporting his decision. Any reference to the trial court’s “findings” are derived from this document. The court asked witness Taylor: “Mr. Taylor, are you sitting here telling this court that if someone makes a determination that there is a violation of the criminal section of the statute, or the city of Cleveland, that you first determine what the public feels about it before you proceed***?” “The question is* * * whether in a community in which there is general disregard of a particular law with the acquiescence of the public authorities, the authorities should be allowed sporadically to select a single defendant or a single class of defendants for prosecution because of personal animosity or some other illegitimate reason. The wrong sought to be prevented is a wrong by the public authorities. To allow such arbitrary and discriminatory enforcement of a generally disregarded law is to place in the hands of the police and the prosecutor a power of the type frequently invoked in countries ruled by a dictator but wholly out of harmony with the principle of equal justice under law prevailing in democratic societies. The court is asked to stop the prosecution at the threshold, not because the defendant is innocent but because the public authorities are guilty of a wrong in engaging in a course of conduct designed to discriminate unconstitutionally against the defendant.” People v. Utica Daw’s Drug Co. (1962), 16 A.D. 2d 12, 21 , 225 N.Y. Supp. 2d 128, 133. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6756963. Public record. Not legal advice.