# Opposition Brief — Sawatzky v. Oklahoma City

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1156

## Text

Supreme Court; U.S.
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1854%3A2. Public record. Not legal advice.