dissenting.
{¶ 22} As the majority relates, ceremonial burning is protected speech in this country. But every state has prohibitions against arson. To allow arson laws to be applied to small-scale, outdoor ceremonial burnings like the one in this case defeats the free-speech protections accorded those activities.
{¶ 23} Appellees were arrested for a violation of R.C. 2909.02, which provides:
{¶ 24} “(A) No person, by means of fire or explosion, shall knowingly do any of the following:
{¶ 25} “(1) Create a substantial risk of serious physical harm to any person other than the offender.”
{¶ 26} If there was any risk here, it was not substantial. The burnings took place in a paved area cordoned off by metal barricades with firefighters with extinguishers nearby. Moreover, the record shows that burning pieces of the effigy landed near the protestors themselves, not anyone else. I agree with the appellate court that the facts of this case do not implicate the city’s asserted interest in public safety. Thus, the city lacked “a sufficiently important governmental interest in regulating the nonspeech element” to justify the incidental *445limitation on appellees’ First Amendment freedoms. United States v. O’Brien (1968), 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672.
Terry H. Gilbert, for appellees. Subodh Chandra, Cleveland Director of Law, Thomas J. Kaiser, Chief Trial Counsel, and Joseph G. Hajjar, Assistant Director of Law, for appellant. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Elise Porter, Assistant Solicitor, urging reversal for amicus curiae, Ohio Attorney General.{¶ 27} If we allow flag burning in this country, we should certainly allow Chief Wahoo effigy burning. Our flag stands for over 200 years of freedom and unity; Chief Wahoo stands for 56 years (and counting) of baseball futility.