State v. Kalman
2017 Ohio 7548
| Ohio Ct. App. | 2017Background
- Eliot Kalman repeatedly protested a directory box mounted on the Athens County Courthouse exterior, claiming it violated the Establishment Clause; he placed stickers reading "UNCONSTITUTIONAL."
- County officials installed chains and "Authorized Personnel Only" signs to restrict access to the short ramp/steps and landing immediately adjacent to the directory after repeated vandalism and safety/maintenance concerns.
- Kalman crossed the chain twice on October 29, 2015, placed stickers on the directory, and was served with two Trespass Complaint Forms forbidding him from the courthouse premises.
- Kalman was charged with criminal trespass (R.C. 2911.21(A)); he moved to dismiss claiming a First Amendment privilege to access the restricted area as a public forum.
- The trial court granted the State's motion in limine excluding evidence on the directory's constitutionality, denied Kalman’s motion to dismiss (finding the area was not a public forum), convicted Kalman after a bench trial, and sentenced him to suspended jail time and community control.
- On appeal the court reversed the trial court’s forum classification, holding the restricted area was a designated public forum but that the county’s cordon was a content-neutral time/place/manner restriction that survived intermediate scrutiny; the trespass conviction was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kalman had a First Amendment "privilege" to be in the restricted area (forum analysis) | State: Area is a nonpublic forum; restrictions are reasonable and viewpoint neutral | Kalman: Area is a public forum (designated/traditional) so exclusion is content/viewpoint based and unconstitutional | Court: Area is a designated public forum but restriction is content-neutral; Kalman had no First Amendment privilege to enter |
| Whether the cordon was content- or viewpoint-based (level of scrutiny) | State: Restriction is content-neutral time/place/manner; intermediate scrutiny applies | Kalman: Restriction was created in response to his protests (viewpoint/content based) requiring strict scrutiny | Court: No evidence restriction targeted Kalman’s viewpoint; restriction was content-neutral; intermediate scrutiny applied |
| Whether the restriction satisfied intermediate scrutiny (significant interest, narrowly tailored, alternatives) | State: Safety, liability, prevention of property damage, and preventing unauthorized entry are significant; restriction is small and leaves ample alternatives | Kalman: County interests are pretextual and restriction not narrowly tailored; he was effectively barred by trespass notices | Court: Interests were significant; restriction narrowly tailored (small area) and left alternative channels (courtyard, sidewalks); satisfies test |
| Whether the Trespass Complaint Forms being unconstitutional would undermine the conviction | Kalman: Forms unlawfully barred him from courthouse and so could not support trespass conviction | State: Conviction rests on entering the clearly marked restricted area without privilege regardless of forms | Court: Because Kalman entered the restricted area without privilege, conviction stands; constitutional challenge to forms rendered moot |
Key Cases Cited
- Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788 (forum analysis and tiered public-forum doctrine)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (distinguishing traditional, designated, and nonpublic forums)
- Pleasant Grove City v. Summum, 555 U.S. 460 (forum restrictions and display-speech principles)
- Ward v. Rock Against Racism, 491 U.S. 781 (standards for content-neutral time, place, and manner restrictions)
- N.Y. Times Co. v. Sullivan, 376 U.S. 254 (protection of speech about public affairs)
- Doe v. City of Albuquerque, 667 F.3d 1111 (application of time/place/manner test in forum cases)
- Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (First Amendment principle cited by parties)