Lead Opinion
Aрpellant has raised several propositions of law before this court.
Appellant was charged and convicted for -violating R.C. 2917.01(A)(1), which reads:
“(A) No person shall knowingly engage in conduct designed to urge or incite another to commit any offense of violence, when either of the following applies]:
“(1) Such conduct takes place under circumstances which create a clear and present danger that any offense of violence will be committed.”
The prosecution’s theory of the case was not that appellant made statements directing either her fellow demonstrators or members of the audience to commit acts of violence. Officer Deli, in fact, agreed with defense counsel on cross-examination that Lessin neither said “[g]o and assault someone,” “[cjommit violence against these other people in the crowd” or “burn down Terminal
It is evident from our review of the record that Lessin was partly engaged in expressive conduct protected by the First Amendment during the August 10, 1990 demonstration at Public Square. Her burning of the flag is afforded the same protection against criminal punishment under the First and Fourteenth Amendments as are her words spoken in public criticism of United States foreign рolicy. A seminal United States Supreme Court opinion, Texas v. Johnson (1989),
“The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ [Citations omitted.] It would be odd indeed to conclude both that ‘if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,’ [citation omitted] and that the Government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.
“Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression ‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ Brandenburg v. Ohio,395 U.S. 444 , 447 [89 S.Ct. 1827 , 1829,23 L.Ed.2d 430 , 434,48 O.O.2d 320 , 322] (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan).” Johnson,491 U.S. at 408-409 ,109 S.Ct. at 2542 ,105 L.Ed.2d at 356-357 .
While Lessin’s right to verbally criticize her government’s foreign policy and her right to burn the United States flag without urging people to commit violent acts can in no way form the basis of a conviction under R.C. 2917.01, Lessin’s alleged assaults of passersby are not constitutionally protected from criminal sanction under the First and Fourteenth Amendments. Our duty is to ensure that the jury’s guilty verdict neither transgressed nor contravened Lessin’s freedom of exprеssion. In this regard, the United States Supreme Court has cautioned:
“[W]hen a single-count indictment or information charges the commission of a crime by virtue of the defendant’s having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as ‘intertwined’ and have rested the conviction on both together.” Street v. New York (1969),394 U.S. 576 , 588,89 S.Ct. 1354 , 1363-1364,22 L.Ed.2d 572 , 582-583.
The Ohio Rules of Criminal Procedure provide that the trial judge shall charge the jury in accordance with Crim.R. 30.
“In a criminal case, it is not mandatory upon a trial court to give requested instructions to the jury verbatim, but if the requested instructions contain a correct, pertinent statement of the law and are appropriate to the facts they must be included, at least in substance, in the court’s charge to the jury. * * * ” State v. Nelson (1973),
Appellant submitted a proposed jury instruction on free speech which was either rejected in part or amended in part by the trial judge. The rejected
“The First Amendment protects free speech. The state cannot prosecute someone for exercising her right to free speech. The law applicable to this case is that speaking & burning the flag are protected speech and are protected by the [F]irst [AJmendment & the defendant] cannot be convicted for such activity.” (Emphasis added.)
In determining whether the trial judge erred in failing to give appellant’s proposed instruction relating to the First Amendment and protected speech, the court of appeals errоneously employed the abuse of discretion standard of review. “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable. * * * ” (Citations omitted.) State v. Adams (1980),
“To say that a general verdict of guilty should be upheld though we cannot know that it did not rest on the invalid constitutional ground on which the case was submitted to the jury, would be to countenance a procedure which would cause a serious impairment of constitutional rights.”
We cannot uphold Lessin’s conviction for the crime of inciting violence because it is impossible to say with any degree of certainty that her burning of the United States flag was disregarded by the jury in reaching its verdict. The trial court’s
“MR. ROSSMAN: How many of you are aware of recent Supreme Court cases that says [sic] it’s okay to burn the flag?
“MR. LONJAK: Objection.
“THE COURT: The objection is sustained. There has been no Supreme Court case, to my knowledge, that permits under any circumstances that it’s okay to bum the flag. That’s why the lawyers have been instructed not to disсuss the issues of law. And don’t do it again, Mr. Rossman.
“MR. ROSSMAN: May I discuss it at sidebar?
“THE COURT: No, you may not.” (Emphasis added.)
The trial court’s statement is clearly error because it is in direct conflict with the holding in Texas v. Johnson. Having determined that the trial judge failed to guard against the possibility that the jury would consider constitutionally protected speech in convicting appellant for inciting violence, we reverse appellant’s conviction. Our decision rests in large part on our awareness of the depth of those personal convictions that consider flag desecration as a rеpugnant and intolerable act. This is the reason persons unhappy with governmental decisions find burning the United States flag an irresistible method of communicating the
Accordingly, the judgment of the court of appeals affirming appellant’s conviction is reversed and the cause is remanded to the trial court for proceedings not inconsistent with this opinion.
Judgment reversed and cause remanded.
Notes
. The following propositions of law have been raised by appellant:
1. “Appellant’s conviction violates the First Amendment of the United States Constitution.”
(a) “O.R.C. 2917.01 is unconstitutionally ovеrbroad, as applied and on its face, because it permitted appellant to be convicted for conduct and speech under the First Amendment to the United States Constitution.”
(b) “Appellant’s conviction must be reversed, because it was premised in large part upon expression protected by the First Amendment, and any guilty verdict based upon testimony elicited and evidence presented by the state of appellant’s unprotected conduct, standing alone, was against the manifest weight of the evidence, not sufficient to sustain a conviction or a verdict under Ohio Crim.R. 29, and violative of appellant’s right to due process of law.”
(e) “The appellant was denied her constitutional right to a fair trial by the trial court not properly instructing the jury, thereby allowing them to convict appellant for engaging in expression protected under the First Amendment.”
2. “The court' erred in denying the appellant the opportunity to have a voir dire conducted so that appellant’s preemptory [sic ] challenges could be intelligently rendered, and challenges for cause effectively asserted in violation of the appellant’s Sixth Amendment right of effective assistance of counsel.”
3. “The trial court denied the appellant a fair trial by not properly instructing the jury as to an essential element of O.R.C. 2917 [sic
4. “Appellant’s conviction must be reversed, because the trial court had secret communications with the jury while it was deliberating, which prejudiced the appellant.”
5. “The appеllant was denied a fair trial by the actions, conduct and prejudice of the trial judge.”
6. “Appellant was deprived of her liberty without due process of law by her conviction and sentencing for inciting to violence in violation of O.R.C. Section 2917.01 where appellant’s sentence was in violation of her Eighth Amendment right prohibiting excessive, unfair and cruel and unusual punishment.”
. Recognizing that the right to freedom of speech is a more generalized guarantee of freedom of expression, Justice Brennan, writing for the majority in Johnson, stated:
“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word. While we have rejected ‘the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea,’ United States v. O’Brien [391 U.S. 367 (1968) ], supra, at 376 [88 S.Ct. 1673 , 1678,20 L.Ed.2d 672 , 679], we have acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourtеenth Amendments,’ Spence [v. Washington (1974) ], supra, [418 U.S. 405 ] at 409 [94 S.Ct. 2727 , 2730,41 L.Ed.2d 842 , 846],
“In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those*492 who viewed it.’418 U.S., at 410-411 [94 S.Ct. at 2730 ].” Johnson,491 U.S. at 404 ,109 S.Ct. at 2539 ,105 L.Ed.2d at 353 .
. The current version of Crim.R. 30 provides:
“(A) Instructions; error; record. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as sеt forth in the requests. Copies shall be furnished to all other parties at the time of making the requests. The court shall inform counsel of its proposed action on the requests prior to counsel’s arguments to the jury and shall give the jury complete instructions after the arguments are completed. The court also may give some or all of its instructions to the jury prior to counsel’s arguments. The court need not reduce its instructions to writing.
“On appeal, a party may not assign as error the giving or the failure to give any instruсtions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.
“(B) Cautionary instructions. At the commencement and during the course of the trial, the court may give the jury cautionary and other instructions of law relating to trial procedure, credibility and weight of the evidence, and the duty and function of the jury and may acquaint the jury generally with the nаture of the case.”
. That instruction reads:
“The [F]irst Amendment to the United States Constitution guarantees to all persons the right to free speech and the government may not prohibit the expression of an idea, simply because society finds the idea itself offensive or disagreable [sic].
“The offense charged in this case applies to situations where speech and or conduct is abused, but only when the speech or expression consciously, under explosive circumstances, spurs others to violence.
‘You will hear the term [‘]elear and present dangerf] during the course of further instructions. This means that the state may limit speech and/or conduct which promotes or incites violence provided there is an obvious and immediate danger that such conduct or speech will actually result in violence, not simply public inconvenience, annoyance or unrest.
“To support conviction, the State of Ohio must prove that the defendant in fact, engaged in conduct or speech which urged or incited others to act violently.”
Dissenting Opinion
dissenting. This case is not about flag burning. This case is not a Texas v. Johnson (1989),
Appellant was not merely expressing a provocative idea. She was also acting and it is this behavior that offends the statute. There has been much discussion in this case concerning Brandenburg v. Ohio (1969),
That is exactly what happened here — appellant’s actions incited and brought about imminent lawlessness. In this regard, I find State v. Hoffman (1979),
Dissenting Opinion
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 prоtection 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 whiсh 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 fоrbade 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
Although, it is well established that the First Amendment does not afford аbsolute 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),
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 speеch 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
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.