Ohio Appeals Court Says Sexual Solicitations Weren’t Fighting Words
Justices Overturn Conviction of Man Arrested For Breaking State’s
‘Importuning Statute,’ But Find Law Doesn’t Violate The First Amendment
The Freedom Forum Online,
January 25, 1999
By David Hudson First Amendment Center
An Ohio state appeals court recently reversed the conviction of man who solicited sex
from a male law enforcement officer because the state failed to prove the solicitations
amounted to "fighting words."
Alvin Lasher was charged and convicted in 1997 of violating an "importuning
statute," which provides: "No person shall solicit a person of the same sex to
engage in sexual activity with the offender, when the offender knows such solicitation is
offensive to the other person, or is reckless in that regard." Lasher was charged
after he offered to perform oral sex on an undercover Cleveland Metroparks ranger in a
park bathroom. According to trial testimony, Lasher made his sexual offers to Sgt. Mark
Carney while staring through a hole in a partition separating a toilet from a urinal.
Carney testified that Lasher’s solicitations were "fighting words" to
him and that if he had been off duty he would have struck Lasher.
On appeal, Lasher argued that the importuning statute violated the First Amendment
because it punished him for his speech. In addition, he argued that his conviction was
improper because his solicitation did not amount to fighting words, a category of speech
which receives no First Amendment protection.
Prosecutors argued that the statute had already been ruled constitutional by the Ohio
Supreme Court several years ago and that Lasher’s words constituted fighting words.
In State of Ohio Metroparks v. Lasher, the Court of Appeals of Ohio, 8th Appellate
District, ruled in its Jan. 14 opinion that the statute did not violate the First
Amendment.
Though saying it was persuaded by Lasher’s arguments, the appeals court wrote that
it had to follow the 1979 Ohio Supreme Court decision, State v. Phipps. In the Phipps
case, the Ohio high court ruled that the importuning statute was impermissibly overbroad
but said it could be interpreted to apply only to fighting words.
The fighting-words exception to First Amendment jurisprudence dates from the 1942 U.S.
Supreme Court decision Chaplinsky v. New Hampshire, in which the high court ruled that
words which by their very nature incite an immediate breach of the peace--fighting
words--deserve no First Amendment protection. In Chaplinsky, the high court ruled that
yelling "damned Fascist" at a city marshal constituted fighting words.
Lasher argued that the Ohio statute still was unconstitutional even if applied only to
fighting words, because the 1992 U.S. Supreme Court decision R.A.V. v. St. Paul makes it
clear that a state may not criminalize certain content- or viewpoint-based subcategories
of fighting words.
Lasher argued that the state was criminalizing only "fighting words" spoken
to people of the same sex.
Although it seemed to accept Lasher’s reasoning, the court felt compelled to
follow the Phipps case and to dismiss the constitutional argument.
The state court nevertheless reversed Lasher’s conviction, finding that the state
had not shown that Lasher’s solicitations amounted to "fighting words."
The court noted that Lasher did not make any "physical move" toward the
officer and did not ask the officer to perform any acts on him. The court also noted that
the officer was "trained to exercise a higher degree of restraint than the average
person, especially in this factual scenario where he is acting as a decoy in the hopes of
eliciting a solicitation."
The appeals court concluded that "although [Lasher’s] words may well have
been inappropriate, annoying and even offensive, nonetheless, they did not rise to the
level of fighting words."
[Home] [News] [Ohio]
