program consisted of “airplane” scheme that had the following features: (1) the positions in the program, were, from top down, “pilot,” “co-pilots,” “crew,” and “passengers;” (2) each new passenger paid $1,500 to the pilot; (3) when all eight positions at the bottom of the pyramid were filled with passengers, the pilot would leave the plan; (4) after the pilot left the plan, the pyramid would break in half, each participant would move up one position, and the splitting would continue until each investor reached the top of his own pyramid.
How later courts described this case
- program consisted of “airplane” scheme that had the following features: (1) the positions in the program, were, from top down, “pilot,” “co-pilots,” “crew,” and “passengers;” (2) each new passenger paid $1,500 to the pilot; (3) when all eight positions at the bottom of the pyramid were filled with passengers, the pilot would leave the plan; (4) after the pilot left the plan, the pyramid would break in half, each participant would move up one position, and the splitting would continue until each investor reached the top of his own pyramid.
Written by the judges who cited it.
The opinion
Douglas, J.,
dissenting. I respectfully dissent. While we all abhor crime and insist that perpetrators be punished, such should not be the case when, in doing so, it is necessary to cavalierly disregard the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution. The majority spends a considerable amount of time and space in an attempt to distinguish Brandenburg v. Ohio (1969), 395 U.S. *97 444 . After all is said and done, I think it is fair to say that the majority’s position is that Brandenburg is distinguishable because it says it is.
The majority states: “What the law [in question] disfavors is the plan itself and the methods by which it is presented. * * *” In fact, the plan in Brandenburg and the methods by which it was presented were, in comparison, much more serious and abhorrent than the scheme now before us.
The majority then tries to distinguish Brandenburg on the basis of the commercial-speech doctrine. Of course, there is no product- being pushed or sold. Such distinction does not give the majority even a moment’s pause. The fact is, however, that there is nothing in this record that anything of value was exchanged — if anything ever was. The undercover agent heard the proposal, signed up to participate in the scheme, and then departed the meeting.
In sum, the majority brushes aside the First Amendment. While I admit the result sought by the majority is laudable, the price is just too high to pay. If this court does not protect and defend the First Amendment — who will?
Accordingly, I must respectfully dissent.
Sweeney, J., concurs in the foregoing dissenting opinion.