Opposition Brief — Sawatzky v. Oklahoma City

Supreme Court; U.S.

f .

¢ 2. 2

No. 95-1294 MAR 19 1996

| CLERK

In The

Supreme Court of the United States

October Term, 1995

:

KENNETH B. SAWATZKY,

Petitioner,

cIlY OF OKLAHOMA CITY,

Respondent.

¢

On Petition For Writ Of Certiorari To The

Court Of Criminal Appeals Of The State Of Oklahoma

¢

RESPONDENT'S BRIEF IN OPPOSITION

¢

Wituiam O. West

Municipal Counselor

Diane Lewis

Deputy Municipal Counselor

*RICHARD C. SMITH

Litigation Division Head

200 N. Walker, Suite 309

Oklahoma City, Oklahoma 73102

(405) 297-2451

d Attorneys for Respondent

*C | of ReceF

De ee City of Oklahoma City

"KLE LAW BRIEF PRINTING CO., (800) 225-6964

COC OR CALL COLLECT (402) 342-2831

ISSUES PRESENTED IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

1. Petitioner’s First Amendment rights were not

violated by his conviction.

2. The federal question of the free speech clause of

the First Amendment of the United States Constitution

was not pressed or passed on in the Court of Criminal

Appeals of the State of Oklahoma and therefore, this

Court does not have jurisdiction over this Petition for

Writ of Certiorari.

3. Sections 30-151 and 30-152 of the Municipal Code

of the City of Oklahoma City (1993), as applied to Peti-

tioner, are not overbroad.

4. This Court cannot issue advisory opinions to

state courts.

ll

TABLE OF CONTENTS

Page

ISSUES PRESENTED IN OPPOSITION TO PETITION

FOR WRIT OF CIRIMIIARE . < .nn 5 wwe ececcccn: i

TAREE CP RAR os ote aeaiescsetescencs iii

REASONS FOR DENYING PETITIONER’S PETITION

bdesebesdh cues swneeescueene ease Cene 7

Proposition No. 1. Petitioner’s First Amendment

Rights Were Not Violated by His Conviction..... 8

Proposition No. 2. The Federal Question of the Free

Speech Clause of the First Amendment of the

United States Constitution Was Not Pressed or

Passed On In the Court of Criminal Appeals of the

State of Oklahoma and Therefore, This Court Does

Not Have Jurisdiction Over this Petition for Writ of

CORON ions n0c5sbccenuceebasheuan eens 19

mw. COURIER ncn cnevcdatndeeecassetesenus 21

DB. FOP TEE oki ccs ann gecencannemsneeeeee 21

Proposition No. 3. Sections 30-151 and 30-152 of the

Municipal Code of the City of Oklahoma City (1993)

as Applied to Petitioner Are Not Overbroad....... 23

Proposition No. 4. This Court Cannot Issue Advi-

sory Opinions to State Courts ................... 25

ili

TABLE OF AUTHORITIES

Page

Cases

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct.

2456, 115 L.Ed.2d 504 (1991)...................... 15

Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92

RA gi ge ee 3,

Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908,

gee 24, 26

City of Houston, Tex. v. Hill, 482 U.S. 451, 107 S.Ct.

2502, 96 L.Ed.2d 398 (1987), appeal dismissed,

cert. denied, Hill v. City of Houston, Tex., 483 U.S.

1001, 107 S.Ct. 3222, 97 L.Ed.2d 729 (1987)........ 10

Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29

i nos kos os Vivinw da bia wee ox 10, 21

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593

eg hal ou ous bk spew dau cae 11, 12

F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct.

juan, Of L.60.20 1073 (1978)..........:.... 13, 16, 17

Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101

I I Fas cc bo 54 d2w's 63 ole o luke a'vs 17, 24

Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887,

SE I OY ooo cis dock wed udw dod beees oun 10

Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct.

RO Eh i, i

McGoldrick v. Compagnie Generale Transatlantique,

309 U.S. 430, 60 S.Ct. 670, 84 L.Ed. 849 (1940) .... 19

iv

TABLE OF AUTHORITIES - Continued

Page

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37

Ge Se es oc an enh occ pie Oe CaS Gh 9, 10

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct.

yp ae ee Ee 15, 18

Post v. State, 715 P.2d 1105 (Okla. Cr. 1986), rehear-

ing denied, 717 P.2d 1151 (Okla. Cr. 1986), cert.

denied, Oklahoma v. Post, 479 U.S. 890, 107 S.Ct.

ey Se Ee ee Ce wk kk eed etn Us 3

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1

we RE ei og ry Pere ere 9, 10, 15, 18

Sable Communications of California, Inc. v. F.C.C.,

492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93

Bp OCOD Ca pee ae UR POP 7 DAPL NT hy Ha 16

Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105

Eee ey Ge. CR cc nbc a hoee ce CERES aus che Nendo ce 10

Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct.

Foe: ee ee Se As 60 co os Show Care b cu debincces 9

Young v. American Mini Theatres, Inc., 427 U.S. 50,

96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)............... 11

CONSTITUTION

ok ee Pre mre Tea 2 et re passim

Fourteenth Amendment............ccceecesess 3, 2a) 2

FEDERAL STATUTE

Be SEs RUE 6 os ok aso GaGa cwdeeseen cee 7, 20, 22

STATE STATUTES

Be We Oe ia 64 50 09 eee 3, 8, 2

renee

TABLE OF AUTHORITIES - Continued

Page

STATE CONSTITUTION

eS nr ee ent 3, 5

Okla. Const., art. 2, > aaaee pewnel Carte re 3, 5

GA Se SN te Aes 3, 5

OKLAHOMA City MunicipaL Copg

Municipal Code of the City of Oklahoma City,

REE RR eo otek eer : i ee

Municipal Code of the City of Oklahoma City,

Pe WR 5 9 Oucrw ave cag sees nce ae

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, the City of Oklahoma City (“the City”),

respectfully prays that this Court deny Petitioner’s Peti-

tion for Writ of Certiorari filed herein.

+

STATEMENT OF THE CASE

FACTUAL BACKGROUND

On March 1, 1994, the City Council of the City of

Oklahoma City amended its “offer to engage in a lewd

act” prohibition ordinance to read as recited in Peti-

tioner’s Petition.1 Even prior to this Amendment and

prior to the Petitioner’s arrest on July 6, 1994, the City

had posted signs at Hobie Point in Lake Hefner, advising

people at the lake that undercover officers would be in

the area. (Tr. 101.) This lake area, including this penin-

sula, is used for sailing, fishing, bird watching, a Boy

Scout Explorer troop, model airplane flying, and other

nature activities. (Tr. 97, 99-100.)

On the day of Petitioner’s arrest, an undercover male

police officer was assigned to work the Hobie Point area

by his supervisor, as the police had received numerous

' On December 19, 1995 the City Council of the City of

Oklahoma City amended Section 30-152 of the 1993 Municipal

Code to read as follows:

(a) No person shall, in a public place, engage in or

offer to engage in any act of prostitution or other act

of lewdness or to solicit, induce, entice, or procure

another to commit or engage in any act of prostitution

or other act of lewdness. (Emphasis added.)

complaints as to moral violations occurring at this loca-

tion. (Tr. 98, 105.) The officer was leaning up against his

car when the Petitioner walked past him, smiled at him,

and asked the officer if he had a cigarette. (Tr. 107.) The

officer struck up a conversation with Petitioner. The Peti-

tioner eventually advised the officer that he wanted to go

to the officer’s hotel and take a shower. (Tr. 111.) As the

two were leaving the area, the officer asked the Petitioner

what “he liked to do.” (Tr. 113.) The Petitioner responded

“T like it all.” (Tr. 120.) The officer again asked the Peti-

tioner what he liked to do. The Petitioner responded “I

want to suck a dick.” (Tr. 113.) The Petitioner was

arrested and charged with a violation of § 30-151 and

§ 30-152 of the Municipal Code of the City of Oklahoma

City.

Proceedings in the Oklahoma Courts:

On August 8, 1994 an amended information was filed

in the Municipal Court of the City of Oklahoma City,

charging that Petitioner:

[O]n or about Jul 6, 1994 at 1:30 pm at or near

3298 W. Britton Road, within the corporate

limits of the City of Oklahoma City, State of

Oklahoma the Sawatsky [sic], Kenneth, did then

and there willfully, wrongfully and unlawfully

commit the crime(s) of:

Count #1: Offering to engage in an act of lewd-

ness by committing the following acts: (1) Ken-

neth Sawatsky [sic] asked Officer Ledford, not

his spouse, “If we could go there (Holiday Inn)

to take a shower” ..., an act in furtherance of

an act of lewdness; (2) Kenneth Sawatsky [sic]

Se a RL ETT, meen Her enrT

told Officer Ledford “I want to suck a dick”, an

act of lewdness by giving or recieving [sic] of

the body for fellatio with a person not his

spouse, contrary to the provisions of Oklahma

[sic] City Municipal Code Section 30-151, Ordi-

nance Number 20114, and against the peace and

dignity of the City of Oklahoma City.

This amended information was served on the Peti-

tioner by certified mail on August 9, 1994.

On July 27, 1994, Petitioner filed a Motion to Dismiss

and Brief In Support. Petitioner’s Brief argued that the

information should be dismissed because the Municipal

Code Sections violated (1) his right to privacy under art.

2, §§ 2 and 7, of the Constitution of the State of Okla-

homa; (2) his right to equal protection under art. 2, § 7, of

the Oklahoma Constitution and under the Fourteenth

Amendment to the United States Constitution; and (3) his

rights under the establishment clause of the First and

Fourteenth Amendments to the United States Constitu-

tion and art. 1, § 2, of the Oklahoma Constitution. The

Petitioner apparently argued that his state right of pri-

vacy was violated because consensual same gender sex-

ual acts must now be lawful as the Oklahoma Court of

Criminal Appeals had held in Post v. State, 715 P.2d 1105

(Okla. Cr. 1986), rehearing denied, 717 P.2d 1151 (Okla. Cr.

1986), cert. denied, Oklahoma v. Post, 479 U.S. 890, 107 S.Ct.

290, 93 L.Ed.2d 264 (1986), that Oklahoma’s sodomy pro-

hibition, 21 O.S. § 886, was unconstitutional as applied to

consensual non-commercial, heterosexual sodomy. The

Petitioner’s equal protection argument alleged, without

any facts to support it, that these code sections were

being enforced only against homosexual males - which

Petitioner claims was a suspect class - as is defined in

equal protection cases. Petitioner’s establishment clause

argument was that the same-sex sodomy prohibitions are

illegally based upon tenets of the Christian Church.

The Petitioner’s Motion to Dismiss was set for oral

argument on September 1, 1994. The Petitioner’s counsel

stated during this argument that “[w]Je have not been

alleging in our attack on the ordinance, the previous

ordinance or the amended ordinance, a vague and over-

broad argument. We could have made that argument.”

(September 1, 1994, Tr. 21.) Further, at page 23, Peti-

tioner’s counsel stated: “We have not attacked this on

vagueness and overbreadth. .. . ” The only free speech

argument appears to be that raised orally at pages 6 and

7, when Petitioner argues that if the underlying conduct

was lawful “then you certainly have the constitutional

right to ask someone to commit these consensual acts.”

The Municipal Court denied the Motion to Dismiss, and

the case was set for trial.

On November 27, 1994, this case was tried to a jury.

The City called one witness: the undercover officer, and

rested. The Petitioner called no witnesses and rested. The

defense again moved to dismiss and argued at Tr.

126-127:

It seems to me that to be arrested under the

ordinance that they brought, a person has to

make a proposal to someone not his spouse to

engage in sexual relations with a person not his

spouse, not to discuss academically an interest

in sexuality... .

Now, Your Honor, in our motion to dismiss, we

outline several other constitutional bases that

we don’t want to be construed to have waived,

but with your permission, I will not restate

those this afternoon, our reliance on the post-

case, our reliance upon violation of equal pro-

tection and the enforcement of this, and then the

violation of First Amendment protection both of

free speech and entanglement of church and

state, unless the Court desires for me to revisit

those issues.

The Court overruled the Motion to Dismiss. The jury

found the Petitioner guilty and set his punishment at a

$250 fine.

The Petitioner appealed his conviction to the Okla-

homa Court of Criminal Appeals. The Petitioner raised

the same arguments as was contained in his written

Motion to Dismiss filed in the Municipal Court on July

27, 1994. The City asserts that the only issues Petitioner

properly preserved can be summarized as follows:

(1) Whether Oklahoma City’s Municipal Code

§§ 30-151 and 30-152 (1993), violate Appellant's

[Petitioner’s] right to privacy, as guaranteed

under art. 2, §§ 2 and 7, of the Oklahoma Consti-

tution.

(2) and (3)

Whether Oklahoma City’s Municipal Code,

§§ 30-151 and 30-152 (1993), violate Appellant's

[Petitioner’s] right to equal protection, as guar-

anteed under art. 2, § 7, of the Oklahoma Consti-

tution and under the Fourteenth Amendment to

the United States Constitution.

(4) Whether Oklahoma City’s Municipal Code,

§§ 30-151 and 30-152 (1993), violate Appellant's

[Petitioner’s] right guaranteed under art. 1, § 2,

of the Oklahoma Constitution, pertaining to pro-

tection of religious expression, comparable to

the Establishment Clause of the First Amend-

ment of the United States Constitution.

It is the City’s contention that Petitioner has waived

any argument as to the alleged constitutional infirmities

on these ordinances, based upon the free speech clause of

the First Amendment of the United States Constitution,

either on a claim of facial overbreadth or as applied, by

his failure to assert them in the highest state court. (See

Propositions 2 and 3.) The only new argument was that

the City had failed to argue a “compelling interest” in

response to his equal protection and establishment argu-

ments.

On November 12, 1995, the Court of Criminal

Appeals issued its opinion, which upheld the Petitioner’s

Municipal Court conviction. The Court declined to decide

Petitioner’s privacy argument and held that, because

Petitioner’s status was neither quasi-suspect nor suspect,

the City need only to show a rational basis for its ordi-

nances and, as applied, the Petitioner’s conviction for a

public solicitation of a sexual act, regardless of whether

the underlying sexual act was legal, was valid. The Court

held in a footnote that the Petitioner’s First Amendment

“free speech” rights were not violated because:

[R]easonable prohibitions against soliciting sex-

ual acts do not violate the First Amendment

whether the underlying conduct is lawful or

unlawful. Our view is based upon the unique

status of sexual conduct in our culture. In our

community, some forms of overt sexual conduct,

including the solicitation of some sexual acts, is

simply not appropriate in public places. To sug-

gest that government cannot prohibit such solic-

itation is unfathomable.

(Pet. App., p. 4a, n.7.)

REASONS FOR DENYING PETITIONER’S PETITION

Since the date of Petitioner’s arrest on July 6, 1994,

this case has always been about whether the City could

prohibit any person from offering to engage in an act of

lewdness. The Petitioner attempted to turn this into a

case to decide whether consensual non-commercial pri-

vate same-sex sodomy is lawful under Oklahoma’s Con-

stitution. The Oklahoma Court of Criminal Appeals

properly refused to decide this issue and held that, as

applied, the City’s ordinances lawfully prohibited the

Petitioner from stating in a public place, to an undercover

officer, “I want to suck a dick,” under circumstances later

determined by a jury to have constituted an offer to

engage in lewd conduct. The Petitioner’s Motion to Dis-

miss claimed to raise the free speech issue in the Munici-

pal Court of Oklahoma City. He did not brief the issue.

He mentioned his free speech claim again during his

Demurrer to the evidence. (Tr. 126-127.) His Brief in the

Court of Criminal Appeals did not raise the free speech

issue. This Court should not exercise jurisdiction over

this case pursuant to 28 U.S.C. § 1257(a), since Petitioner

neither pressed at the appellate stage nor did the Court of

Criminal Appeals fully present the issue of whether the

Oklahoma City Municipal Code, §§ 30-151 and 30-152

(1993), violated Petitioner’s free speech rights, pursuant

to the First Amendment of the Constitution of the United

States. Further, the Petitioner’s counsel specifically

advised the Municipal Court that he was not attacking

the ordinance as “overbroad.” (September 1, 1994, Tr. 21,

23.) For these reasons alone, this Court should deny the

Petition, but if not, the City asserts that this Court should

deny the Petition in that the Petitioner’s own First

Amendment rights were not violated, and that, as he was

lawfully convicted, Petitioner cannot assert that the ordi-

nance might violate the rights of others. Lastly, it appears

that Petitioner is requesting that this Court require that

the Oklahoma Court of Criminal Appeals decide the issue

of the legality of homosexual sodomy under the Okla-

homa Constitution.

Proposition No. 1. Petitioner’s First Amendment

Rights Were Not Violated by His Conviction.

Petitioner assumes that the City cannot lawfully pro-

hibit a person from attempting to solicit a sexual act

when that person states “I want to suck a dick,” absent a

compelling interest. Petitioner further asserts that pro-

tecting “listeners” from overhearing the solicitation is not

a compelling interest. The Petition does not address the

protection of those who may be offended by these in-

person solicitations. The City asserts that Petitioner’s

argument is contrary to numerous cases of this Court.

It is important to note that the Petitioner was not

engaging in a political debate over the legality or moral-

ity of his status as a homosexual at the time of his arrest,

but was instead attempting to solicit a person of the same

sex into committing an act that is still illegal under Okla-

homa law. (21 O.S. § 886.) Secondly, Petitioner argues that

a ee |

ordinances like the ones at issue can only be valid if the

underlying conduct is validly proscribed. If this is the

case, then by the same argument, any law protecting

citizens from libel, slander, misrepresentation, false

advertising, unfair debt collection actions, stalking, or

harassment is invalid as the violator could claim that as

the underlying conduct was not illegal, the prohibition

would be violating his First Amendment's freedom of

speech right.

This Court has long recognized that not all speech is

entitled to the protection of the First Amendment. In Roth

v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d

1498 (1957), this Court stated “[iJn light of this history, it

is apparent that the unconditional phrasing of the First

Amendment was not intended to protect every

utterance.” And this Court, quoting from its prior opin-

ion in Thornhill v. State of Alabama, 310 U.S. 88, 101, 102,

60 S.Ct. 736, 84 L.Ed. 1093, 1102 (1940), stated:

The freedom of speech and of the press guaran-

teed by the Constitution embraces at the least

the liberty to discuss publicly and truthfully all

matters of public concern without previous

restraint or fear of subsequent punishment.

Roth, 354 U.S. at 487. (Court’s emphasis.)

In Roth, this Court held obscene material was not

protected by the First Amendment. The test of obscenity

was redefined in Miller v. California, 413 U.S. 15, 25, 93

S.Ct. 2607, 37 L.Ed.2d 419, 431 (1973), when this Court

gave as an example several types of material that could

be lawfully determined to be obscene. This Court stated:

10

It is possible, however, to give a few plain exam-

ples of what a state statute could define for

regulation under part (b) of the standard

announced in this opinion, supra: (a) Patently

offensive representations or descriptions of ulti-

mate sexual acts, normal or perverted, actual or

simulated... .

See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887,

41 L.Ed.2d 590 (1974), wherein this Court reaffirmed that

material designed for and disseminated to a clearly

defined deviant sexual group that appeals to the prurient

interest in sex of the members of that group could be held

to be obscene. The City submits that Petitioner’s state-

ment, “I want to suck a dick,” meets the definition of

obscenity as defined by this Court in Roth, and Miller, as

it describes the ultimate sex, whether homosexuals are

labeled “deviant.” This statement was not made as part of

a political protest or a public statement concerning the

issues of gay rights and the Petitioner’s citations to this

Court’s opinions involving public expressions of a politi-

cal statement [Cohen v. California, 403 U.S. 15, 91 S.Ct.

1780, 29 L.Ed.2d 284 (1971); Texas v. Johnson, 491 U.S. 397,

109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); City of Houston,

Tex. v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398

(1987), appeal dismissed, cert. denied, Hill v. City of Houston,

Tex., 483 U.S. 1001, 107 S.Ct. 3222, 97 L.Ed.2d 729 (1987)],

are not relevant to the facts of this case.

Even if this Court were to hold that Petitioner’s

speech was protected by the First Amendment, the ques-

tion remains as to how much protection it is to be

afforded. In various contexts, this Court has in fact

11

looked to the content of the speech to see how much

protection is to be afforded. For instance, in Hustler Maga-

zine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41

(1988), this Court held that a public figure must show a

false statement of fact made with actual malice before

recovering damages for intentional infliction of emotional

distress, whereas, in Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593

(1985), this Court held that in matters not involving “pub-

lic concern” no showing of actual malice was needed to

recover damages for a false statement. Thus, the content

of the speech must be examined to determine if a false

statement is made, and if the person or the “matter” was

of public concern. In Young v. American Mini Theatres, Inc.,

427 U.S. 50, 69-71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976),

this Court stated:

Surely the First Amendment does not foreclose

such a prohibition; yet it is equally clear that

any such prohibition must rest squarely on an

appraisal of the content of material otherwise

within a constitutionally protected area.

Such a line may be drawn on the basis of con-

tent without violating the government's para-

mount obligation of neutrality in its regulation

of protected communication. For the regulation

of the places where sexually explicit films may

be exhibited is unaffected by whatever social,

political, or philosophical message a film may

be intended to communicate; whether a motion

picture ridicules or characterizes one point of

view or another, the effect of the ordinances is

exactly the same.

12

Moreover, even though we recognize that the

First Amendment will not tolerate the total sup-

pression of erotic materials that have some

arguably artistic value, it is manifest that soci-

ety’s interest in protecting this type of expres-

sion is of a wholly different, and lesser,

magnitude than the interest in untrammeled

political debate that inspired Voltaire’s immortal

comment. Whether political oratory or philo-

sophical discussion moves us to applaud or to

despise what is said, every schoolchild can

understand why our duty to defend the right to

speak remains the same. But few of us would

march our sons and daughters off to war to

preserve the citizen’s right to see “Specified Sex-

ual Activities” exhibited in the theaters of our

choice. Even though the First Amendment pro-

tects communication in this area from total sup-

pression, we hold that the State may

legitimately use the content of these materials as

the basis for placing them in a different classi-

fication from other motion pictures.

More on the point of this case, this Court stated in Dun &

Bradstreet, that: “[w]e have long recognized that not all

speech is of equal First Amendment importance.°®

5 This Court on many occasions has recognized that

certain kinds of speech are less central to the inter-

ests of the First Amendment than others... . ”

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U-S.

at 785 and n.5.

13

In Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108

S.Ct. 876, 99 L.Ed.2d 41 (1988), this Court stated:

Admittedly, these oft-repeated First Amend-

ment principles, like other principles, are sub-

ject to limitations. We recognized in Pacifica

Foundation, that speech that is “ ‘vulgar,’ ‘offen-

sive,’ and ‘shocking’” is “not entitled to abso-

lute constitutional protection under all

circumstances.” 438 US, at 747, 57 L Ed 2d 1073,

98 S Ct 3026.

In F.C.C. v. Pacifica Foundation, 438 U.S. 726, 746-747,

98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), this Court stated:

If there were any reason to believe that the

Commission’s characterization of the Carlin

monologue as offensive could be traced to its

political content - or even to the fact that it

satirized contemporary attitudes about four let-

ter-words — First Amendment protection might

be required. But that is simply not this case.

These words offend for the same reasons that

obscenity offends. (Footnote omitted.) Their

place in the hierarchy of First Amendment

values was aptly sketched by Mr. Justice Mur-

phy when he said: “[S]uch utterances are no

essential part of any exposition of ideas, and are

of such slight social value as a step to truth that

any benefit that may be derived from them is

clearly outweighed by the social interest in

order and morality.” Chaplinsky v. New Hamp-

shire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766.

Indeed, we may assume, arguendo, that this

monologue would be protected in other con-

texts. Nonetheless, the constitutional protection

14

accorded to a communication containing such

patently offensive sexual and excretory lan-

guage need not be the same in every context. It

is a characteristic of speech such as this that

both its capacity to offend and its “social value,”

to use Mr. Justice Murphy’s term, vary with the

circumstances. Words that are commonplace in

one setting are shocking in another.

The Petitioner argues that the City failed to express

any compelling state interest in attempting to prohibit the

solicitation of certain sexual acts. The City disagrees with

this argument for two reasons. Initially, the City would

assert that even if some state reason is required to pro-

hibit offers like the Petitioner’s, it is not required that the

interest be “compelling.” Secondly, the undercover officer

testified as to the interest to be protected: that this public

park was used by children, sailboaters, and nature lovers;

that the City has tried to warn off the people using the

park illegally, and that the police department still

received “numerous” complaints. Lastly, the Petitioner’s

Petition at Proposition II, pages 14-18, cites some eight

cases from seven different jurisdictions, all of which con-

cern attempts to prohibit the same type of conduct as

Petitioner's. The Petitioner’s conduct herein obviously

offends someone. At least eight jurisdictions have had

sufficient complaints from citizens to attempt to enact

laws to prohibit such conduct. As the Oklahoma Court of

Criminal Appeals stated in its opinion:

In our view, reasonable prohibitions against

soliciting sexual acts do not violate the First

Amendment whether the underlying conduct is

lawful or unlawful. Our view is based upon the

unique status of sexual conduct in our culture.

a a TT

15

In our community, some forms of overt sexual

conduct, including the solicitation of some sex-

ual acts, is simply not appropriate in public

places. To suggest that government cannot pro-

hibit such solicitation is unfathomable.

Even if, as Petitioner argues, the City is required to

show a “compelling interest” to validate the ordinances

in question, the City asserts that based upon this Court's

decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111

S.Ct. 2456, 115 L.Ed.2d 504 (1991), the City has a compel-

ling interest. In Barnes, this Court stated:

This and other public indecency statutes were

designed to protect morals and public order.

The traditional police power of the States is

defined as the authority to provide for the pub-

lic health, safety, and mcrals, and we have

upheld such a basis for legislation. In Paris

Adult Theatre I v Slaton, 413 US 49, 61, 37 L Ed

2d 446, 93 S Ct 2628 (1973), we said:

‘In deciding Roth [v United States, 354 US

476 [1 L Ed 2d 1498, 77 S Ct 1304] (1957)],

this Court implicitly accepted that a legisla-

ture could legitimately act on such a conclu-

sion to protect “the social interest in order

and morality.” [Id.], at 485 [1 L Ed 2d 1498,

77 S Ct 1304].’ (Emphasis omitted.)

And in Bowers v. Hardwick, 478 US 186, 196, 92

L Ed 2d 140, 106 S Ct 2841 (1986), we said:

‘The law, however, is constantly based on

notions of morality, and if all laws repre-

senting essentially moral choices are to be

invalidated under the Due Process Clause,

the courts will be very busy indeed.’

16

Thus, the public indecency statute furthers a sub-

stantial government interest in protecting order and

morality.

Id., 501 U.S: at 569. (Emphasis added.)

Petitioner suggests that any people who might over-

hear such a solicitation, if offended, could just avert their

ears. Petitioner's argument ignores those people who

receive the solicitation. The City asserts that Petitioner’s

suggestion that the recipients could just avert their ears is

not consistent with either this Court’s prior opinions or

with the realities of such a public, unwanted offer. In

Sable Communications of California, Inc. v. F.C.C., 492 U.S.

115, 127-128, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), this

Court stated:

The private commercial telephone communica-

tions at issue here are substantially different

from the public radio broadcast at issue in Pacif-

ica. In contrast to public displays, unsolicited mail-

ings and other means of expression which the

recipient has no meaningful opportunity to avoid,

the dial-it medium requires the listener to take

affirmative steps to receive the communication.

There is no “captive audience” problem here; callers

will generally not be unwilling listeners. The con-

text of dial-in services, where a caller seeks and

is willing to pay for the communication, is mani-

festly different from a situation in which a lis-

tener does not want the received message.

Placing a telephone call is not the same as turn-

ing on a radio and being taken by surprise by an

indecent message. Unlike an unexpected out-

burst, on a radio broadcast, the message

received by one who places a call to a dial-

a-porn service is not so invasive or surprising

17

that it prevents an unwilling listener from

avoiding exposure to it. (Emphasis added.)

And in F.C.C. v. Pacifica Foundation, this Court stated:

To say that one may avoid further offense by

turning off the radio when he hears indecent

language is like saying that the remedy for an

assault is to run away after the first blow. One

may hang up on an indecent phone call, but that

option does not give the caller a constitutional

immunity or avoid a harm that has already

taken place.

F.C.C. v. Pacifica Foundation, 438 U.S. at 748-9. (Footnote

omitted.)

In Frisby v. Schultz, 487 U.S. 474, 497, 108 S.Ct. 2495,

101 L.Ed.2d 420 (1988), this Court stated:

The First Amendment permits the government

to prohibit offensive speech as intrusive when

the “captive” audience cannot avoid the objec-

tionable speech. See Consolidated Edison Co. v.

Public Service Comm’n of New York, 447 US

530, 542, 65 L Ed 2d 319, 100 S Ct 2326 (1980). Cf.

Bolger v. Youngs Drug Products Corp., supra, at

72, 77 L Ed 2d 469, 103 S Ct 2875. The target of

the focused picketing banned by the Brookfield

ordinance is just such a “captive.” The resident

is figuratively, and perhaps literally, trapped

within the home, and because of the unique and

subtle impact of such picketing is left with no

ready means of avoiding the unwanted speech.

Even if, as Petitioner argues, the unwilling listener

must turn his or her ears, the City would assert that the

unwilling recipient of such a solicitation is just as captive

as was the target of residential picketing in Frisby.

18

Lastly, in Paris Adult Theatre I v. Slaton, 413 U.S. 49,

66-68, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), this Court

stated:

The idea of a “privacy” right and a place of

public accommodation are in this context, mutu-

ally exclusive. Conduct or depictions of conduct

that the state police power can prohibit on a

public street do not become automatically pro-

tected by the Constitution merely because the

conduct is moved to a bar or a “live” theater

stage, any more than a “live” performance of a

man and woman locked in a sexual embrace at

high noon in Times Square is protected by the

Constitution because they simultaneously

engage in a valid political dialogue.

Where communication of ideas, protected by the

First Amendment, is not involved, or the partic-

ular privacy of the home protected by Stanley,

or any of the other “areas or zones” of constitu-

tionally protected privacy, the mere fact that, as

a consequence, some human “utterances” or

“thoughts” may be incidentally affected does

5 not bar the State from acting to protect legiti-

mate state interests. Cf. Roth v. United States,

supra, at 483, 485-487, 1 L Ed 2d 1498; Beauhar-

nais v. Illinois, 343 US, at 256-257, 96 L Ed 919.

The fantasies of a drug addict are his own and

beyond the reach of government, but govern-

ment regulation of drug sales is not prohibited

by the Constitution. Cf. United States v. Reidel,

supra, at 359-360, 28 L Ed 2d 813 (Harlan, J.,

concurring).

The Petitioner was not engaged in any public debate

on the morality or legality of sodomy involving members

19

of the same sex on July 6, 1994. He was instead attempt-

ing to satisfy his own sexual desires by the solicitation of

a criminal act. His words should not be protected by the

First Amendment. But even if they were, the City’s pro-

tection of the unwilling listener and the unwilling recip-

ient override any claim of protection of the Petitioner’s

solicitation.

Proposition No. 2. The Federal Question of the Free

Speech Clause of the First Amendment of the

United States Constitution Was Not Pressed or

Passed On In the Court of Criminal Appeals of the

State of Oklahoma and Therefore, This Court Does

Not Have Jurisdiction Over this Petition for Writ of

Certiorari.

In the Opinion of the Court of Criminal Appeals

issued November 21, 1995, Vice Presiding Judge Chapel

outlined the thrust of this case:

This case is neither about the regulation of con-

duct — between consenting adults in the privacy

of their bedrooms, nor the legal status to be

provided to homosexual persons. Fundamen-

tally, this case is about whether Oklahoma City

may legally prohibit public solicitations for pri-

vate non-commercial acts of sodomy.

(Pet. App., pp. la, 2a.)

On review of a Petition for a Writ of Certiorari, this

Court has held that it will refuse to consider any federal

question grounds if the question was not pressed or

decided in the highest state court below. McGoldrick v.

Compagnie Generale Transatlantique, 309 U.S. 430, 60 S.Ct.

670, 84 L.Ed. 849 (1940). This Court stated:

20

But it is also the settled practice of this Court, in

the exercise of its appellate jurisdiction, that it is

only in exceptional cases, and then only in cases

coming from the Federal courts, that it considers

questions urged by a petitioner or appellant not

pressed or passed upon in the courts below.

Blair v. Oesterlein Mach. Co., 275 US 220, 225, 72

L ed 249, 252, 48 S Ct 87; Duignan v. United

States, 274 US 195, 200, 71 L ed 996, 1000, 47S Ct

566. In cases coming here from state courts in

which a state statute is assailed as unconstitu-

tional, there are reasons of peculiar force which

should lead us to refrain from deciding ques-

tions not presented or decided in the highest

court of the state whose judicial action we are

called upon to review.

Apart from the reluctance with which every

court should proceed to set aside legislation as

unconstitutional on grounds not properly pre-

sented, due regard for the appropriate relation-

ship of this Court to state courts requires us to

decline to consider and decide questions affect-

ing the validity of state statutes not urged or

considered there.

Id., 309 U.S. at 434. (Emphasis supplied.)

Therefore, for purposes of jurisdiction under 28

U.S.C. § 1257(a), a federal question must be timely pre-

sented by Petitioner or squarely addressed before the

highest state court before the particular federal question

will be reviewed by the Supreme Court.

Title 28 U.S.C. § 1257(a) provides:

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could

————————i

21

be had, may be reviewed by the Supreme Court by

writ of certiorari where the validity of a treaty

or statute of the United States is drawn in ques-

tion or where the validity of a statute of any

State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or

laws of the United States, or where any title,

right, privilege, or immunity is specially set up

or claimed under the Constitution or the treaties

or statutes of, or any commission held or

authority exercised under, the United States.

(Emphasis added.)

a. Overbreadth

The Petitioner’s counsel twice stated in oral argu-

ment before the Municipal Court that Petitioner was not

challenging this ordinance as being overbroad. The Peti-

tioner did not raise this issue in his appeal to the Okla-

homa Court of Criminal Appeals.

In fact, in the Opinion of the Court of Criminal

Appeals, the Court neted the overbreadth waiver in its

Opinion, n.1: , ,

However, this Court addresses only the fel-

latio portion of this definition, clearly an act of

sodomy, because it is the only portion impli-

cated by the factsof this case and because Saw-

atzky failed to atuck the ordinance as overbroad.

(Pet. App., p. 2a, n.1. (Emphasis supplied.)

b. Free Speech

Petitioner discusses Cohen v. California, 403 U.S. 15, 91

S.Ct. 1780, 29 L.Ed.2d *84 (1971), regarding the reversal of

22

a municipal court conviction for disturbing the peace for

wearing a jacket bearing the words “Fuck the Draft.”

Unlike this appeal, Defendant Cohen had pressed the

federal constitutional question of whether the statute had

violated his freedom of expression rights guaranteed by

the First and Fourteenth Amendments to the United

States Constitution throughout the trial proceedings and

the appeals to the highest state court. This Court stated:

The question of our jurisdiction need not detain

us long. Throughout the proceedings below,

Cohen consistently claimed that, as construed to

apply to the facts of this case, the statute

infringed his rights to freedom of expression

guaranteed by the First and Fourteenth Amend-

ments of the Federal Constitution. That conten-

tion has been rejected by the highest California

state court in which review could be had.

Accordingly, we are fully satisfied that Cohen

has properly invoked our jurisdiction by this

appeal. 28 U.S.C. § 1257(2); Dahnke-Walker Mill-

ing Co. v Bondurant, 257 US 282, 66 LEd 239, 42

SCt 106 (1921).

Id., 403 U.S. at 17-18.

In contrast, in the case at bar, the Petitioner’s counsel

briefly mentioned the First Amendment's free speech

argument orally in the Municipal Court, but not in his

written briefs filed in the Municipal Court? or in the

Oklahoma Court of Criminal Appeals. The Oklahoma

Court of Criminal Appeals, in a footnote, in response to

2 As stated earlier, Petitioner's Motion to Dismiss

mentioned free speech as an issue, but Petitioner failed to argue

that point in his Brief in Support of that Motion.

23

Petitioner’s abandoned equal protection claim, stated that

the ordinance may implicate the First Amendment free

speech right of Petitioner.

The City contends the First Amendment right to free

speech was not presented by the Court of Criminal

Appeals except tangentially. Therefore, the Supreme

Court has no jurisdiction as a substantial federal question

since it was not pressed by the final order of the highest

criminal court of the State of Oklahoma, and the Peti-

tioner had further not perfected the free speech federal

question in his appeal from the criminal conviction after a

trial to a jury. As Petitioner Sawatzky did not pursue his

claim on infringement of free speech First Amendment

rights, as well as the overbreadth issue beyond the trial

level, and failed to urge the overbreadth issue at all, the

City would assert there is no substantial federal question

before the Supreme Court since both propositions in the

Petition for a Writ of Certiorari argue claims based on

free speech rights pursuant to the First Amendment.

Therefore, this Court should decline to exercise jurisdic-

tion over this case and deny the Petition for Writ of

Certiorari for lack of a substantial federal question.

Proposition No. 3. Sections 30-151 and 30-152 of the

Municipal Code of the City of Oklahoma City

(1993) as Applied to Petitioner Are Not Overbroad.

Petitioner, at Proposition 1B argues that his convic-

tion must be set aside as the ordinances at issue herein

prohibit private, welcomed sexual advances. Of course,

these are not the facts of the case at bar. The offer was

24

made in a public park to an obviously unwilling partici-

pant.

In Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495,

101 L.Ed.2d 420 (1988) this Court stated:

To the extent they endorsed a broad reading of

the ordinance, the lower courts ran afoul of the

well-established principle that statutes will be

interpreted to avoid constitutional difficulties.

In Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct.

2908, 37 L.Ed.2d 830 (1978), this Court stated:

Embedded in the traditional rules governing

constitutional adjudication is the principle that a

person to whom a statute may constitutionally

be applied will not be heard to challenge that

statute on the ground that it may conceivably be

applied unconstitutionally to others, in other

situations not before the Court. See, e.g., Austin

v. The Aldermen, 7 Wall 694, 698-699, 19 L Ed

224 (1869); Supervisors v. Stanley, 105 US 305,

311-315, 26 L Ed 1044 (1882); Hatch v. Reardon,

204 US 152, 160-161, 51 L Ed 415, 27 S Ct 188

(1907); Yazoo & M. V. R. Co. v. Jackson Vinegar

Co., 226 US 217, 219-220, 57 L Ed 193, 33 S Ct 40

(1912); United States v. Wurzbach, supra, at 399,

74 L Ed 508; Carmichael v. Southern Coal &

Coke Co., 301 US 495, 513, 81 L Ed 1245, 57S Ct

868, 109 ALR 1327 (1937); United States v.

Raines, 362 US 17, 4 L Ed 2d 524, 80 S Ct 519

(1960). A closely related principle is that consti-

tutional rights are personal and may not be

asserted vicariously. See McGowan v. Maryland,

366 US 420, 429-430, 6 L Ed 2d 393, 81S Ct 1101

(1961).

25

The Oklahoma Court of Criminal Appeals correctly held

that in the facts of this case, Petitioner’s public solicita-

tion of sodomy could be punished. Further, the ordinance

has now been changed to make clear that the prohibition

of such offers are those made in public. Therefore, the

City would assert that Petitioner cannot assert the rights

of a third party who may be, but has not been, charged.

Proposition No. 4. This Court Cannot Issue Advi-

sory Opinions to State Courts.

In Petitioner’s second proposition, Petitioner appears

to be requesting this Court either to order the Oklahoma

Court of Criminal Appeals to decide whether the same-

sex sodomy prohibition of 21 O.S. § 886 is constitutional

under the Oklahoma Constitution (see Petition, p. 14,

n.6), or to issue an advisory opinion to state courts who

may be faced with the enforcement of a similar ordi-

nance. (See Petition, p. 18.) Regarding the same-sex sod-

omy prohibition, this Court in Bowers v. Hardwick, 478

U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), decided

that under the Fourteenth Amendment to the United

States Constitution, homosexuals did: not have a funda-

mental right to engage in consensual sodomy. The Okla-

homa Court of Criminal Appeals held that it need not

decide this issue under the Oklahoma Constitution under

the facts of this case. Petitioner’s First Amendment right,

if any, is outweighed by protecting unwilling listeners

and/or recipients of such solicitations. Petitioner’s First

Amendment arguments raised herein are a ruse to

attempt to get this Court to order the Oklahoma Court of

Criminal Appeals to decide the same-sex sodomy issue.

26

Regarding the Petitioner’s request for an advisory

opinion, this Court stated in Broadrick v. Oklahoma, 413

U.S. 601, 610-611, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973):

These principles rest on more than the fussiness

of judges. They reflect the conviction that under

our constitutional system courts are not roving

commissions assigned to pass judgment on the

validity of the Nation’s laws. See Younger v.

Harris, 401 US 37, 52, 27 L Ed 2d 669, 91 S Ct 746

(1971).

Petitioner’s conviction in the case at bar is not at

odds with the First Amendment. The other state cases

cited by Petitioner are no longer at issue. This Court

should deny the Petition for Writ of Certiorari.

Respectfully submitted,

Wituam O. West RICHARD C. SMITH

Municipal Counselor Litigation Division Head

Diane Lewis Counsel of Record for

Deputy Municipal Respondent City of

Counselor Oklahoma City

Oklahoma City, OK 73102

(405) 297-2555

Attorneys for Respondents