State v. Lessin

Gwin, J.,

dissenting. I respectfully disagree with the majority’s conclusion that the act of burning the national flag is per se protected expression under the First Amendment to the United States Constitution and that the jury could not consider Lessin’s act of burning the national flag in determining whether she was guilty of inciting violence in violation of R.C. 2917.01(A)(1).

To read the majority opinion, the citizens of Ohio would conclude that a person who burns the American flag is granted absolute immunity from criminal prosecution. In fact, it would appear the majority is giving the act of burning our national flag more protection than what is afforded free speech under the First Amendment. The United States Supreme Court has stated:

“[W]e reject the view that freedom of speech * * * as protected by the First and Fourteenth Amendments, are ‘absolutes,’ 'not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment. Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. See, e.g., Schenck v. United States, 249 U.S. 47 [39 S.Ct. 247, 63 L.Ed. 470]; Chaplinsky v. New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031]; Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137]; Beauhamais v. Illinois, 343 U.S. 250 [72 S.Ct. 725, 96 L.Ed. 919]; Yates v. United States, 354 U.S. 298 [77 S.Ct. 1064, 1 L.Ed.2d 1356]; Roth v. United States, 354 U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498]. On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.” Konigsberg v. State Bar of California (1961), 366 U.S. 36, 49-51, 81 S.Ct. 997, 1006-1007, 6 L.Ed.2d 105, 116-117.

It has been well established that the First Amendment does not afford protection to a person who screams “fire” in a crowded theater. Nor does the right to free speech allow a person to defame another or utter fighting words *498which are likely to incite imminent violence. See Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430. Under the same logic, the government has a valid interest in regulating speech and expression which under certain circumstances are likely to create “a clear and present danger.” Schenck v. United States, supra, 249 U.S. at 52, 39 S.Ct. at 249, 63 L.Ed. at 473. Accordingly, it is of utmost importance in measuring the protection afforded to free expression to carefully consider the surrounding circumstances of the expression to determine whether it is directed toward inciting or producing imminent lawless action and is likely to incite or produce such action. Brandeburg, 395 U.S. at 447, 89 S.Ct. at 1829, 23 L.Ed.2d at 434.

Although, it is well established that the First Amendment does not afford absolute protection for all speech and expression, the majority of this court is of the opinion that all instances of burning the United States flag are constitutionally protected from criminal sanction. In reaching this decision, the majority relies on Texas v. Johnson (1989), 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342. In that case, Gregory Lee Johnson was convicted under a Texas statute prohibiting a person from intentionally or knowingly desecrating a state or national flag. In affirming the reversal of Johnson’s conviction, the United States Supreme Court determined that the Texas statute impermissibly infringed .upon a person’s right to freedom of speech and expression because such person could be convicted for burning a flag even though this act did not threaten to disturb the peace. In other words, a resident of Texas could have been charged with violating the criminal statute for burning a national flag in the privacy of his own home or under circumstances where it offended no one. This statute clearly infringed upon that person’s right to freely express his opinions under the First Amendment.

Nevertheless, the United States Supreme Court did not hold that in every instance a person who burns a flag is afforded absolute protection from criminal prosecution. The First Amendment certainly does not afford protection to a heckler who would appear at a United States war veterans’ ceremony screaming epithets against the United States and burning the national flag on stage. This situation would likely create imminent lawlessness in the form of a riot. The heckler’s right to free speech and expression would be outweighed by the state’s interest in preserving the peace, and, under those circumstances, the state would be permitted to criminally charge the heckler with inciting violence. Under today’s ruling, the state of Ohio has no recourse in preventing this imminent lawlessness.

The statute upon which Lessin was charged and convicted reads that “[n]o person shall knowingly engage in conduct designed to urge or incite another to commit any offense of -violence * * * when * * * [s]uch conduct takes place *499under circumstances which create a clear and present danger that any offense of violence will be committed[.]” R.C. 2917.01(A)(1). This statute is specifically and narrowly designed to protect the state from expression which is directed toward inciting or producing imminent lawlessness action and which is likely to incite or produce such action. This statute complies with the law set forth in Brandenburg, supra. Therefore, in determining whether a person has violated the Ohio statute which proscribes inciting violence, the totality of the circumstances must be considered.- These circumstances include, but are not limited to, Lessin’s: screaming of obscenities; hollering, “Fuck the United States[,] I hate this country”; running through the crowd; and burning the national flag.

Therefore, it was not reversible error for the trial court to decline instructing the jury that it may not consider evidence of the burning the United States flag as proof of Lessin’s guilt of inciting violence. The “totality of circumstances” test would instead require the trial court to instruct the jury that in some instances flag burning is a constitutionally protected act, but under other circumstances it is not.

Douglas and Resnick, JJ., concur in the foregoing dissenting opinion.