212 N.E.2d 635 | Ohio Ct. App. | 1965
This appeal comes before this court on questions of law from a judgment rendered in the Juvenile Court.
The defendant, appellant herein, Virginia McLaughlin, was charged by affidavit that she did aid, abet, induce, cause, encourage and contribute toward the delinquency of Mary Ann McLaughlin, a minor of the age of sixteen years, and that on or about August 12, 1961, to on or about September 29, 1963, the said Virginia McLaughlin, being an adult female person and the mother of the aforesaid minor, did on occasions during the period aforesaid instruct the child in birth preventive methods; did show such child where and how to purchase the means of such preventative; did instruct the child that if the child were to engage in sexual activity said child was to use birth preventive methods; and did, by this means, encourage such child to engage in sexual activities with a number of male persons, to *328
wit: charging her with violation of Section
Mary Ann McLaughlin was born on August 14, 1947. On August 3, 1961, at the age of thirteen, she gave birth to a child. After learning that Mary Ann was pregnant, Virginia McLaughlin, the defendant, told Mary Ann that she was not to have sexual relations with boys; but if she did she was to be sure to have the boys use protection. It was explained to Mary Ann by her mother that protection meant "rubbers" and that they could be purchased in any drugstore. On November 3, 1962, at the age of fifteen, Mary Ann gave birth to her second child. After learning of Mary Ann's second pregnancy, the defendant again cautioned Mary Ann about having sexual relations without using protection. She told her not to engage in sexual activity with men, but to be sure and use protection if she did. On September 29, 1963, at the age of sixteen, Mary Ann gave birth to a third child.
In December of 1962, after an argument between Mary Ann and her mother, Virginia McLaughlin, and after the birth of Mary Ann's second child, Mary Ann was adjudged a delinquent and placed on probation by the Juvenile Court. Her mother had signed an affidavit charging Mary Ann with incorrigibility.
In 1963, after the birth of her third child, Mary Ann and her mother were brought before the Juvenile Court for a hearing. Because of the testimony given at that time, Mary Ann was sent to the Girls' Industrial School and Mrs. McLaughlin was charged with contributing to the delinquency of a minor under Section
In her brief, the appellant alleges the following errors:
1. The trial court's refusal to grant the defendant's motion for discharge violated appellant's rights to freedom of speech, to privacy, and to educate her child, as these rights are protected under Article
2. The trial court's refusal to grant appellant's motion for discharge at the conclusion of the state's case was contrary to law.
3. A jury verdict finding the appellant guilty of contributing to the delinquency of her minor daughter is manifestly against the weight of the evidence and denied appellant due process of law under Article
Under the defendant's first assignment of error it is alleged that certain rights guaranteed her by the federal Constitution and the Constitution of Ohio have been violated. Major parts of each of the several briefs submitted in this action on behalf of the defendant are directed toward convincing this court that the trial and conviction of the defendant violated her constitutionally-guaranteed right to free speech.
The
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Article
"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse ofthe right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *" (Emphasis added.)
It cannot be questioned that the right of free speech is a cherished right. It is a right on which a sound democratic society stands. It is the unquestioned duty of the courts to insure that it is protected. Even so, it is unnecessary to go into numerous citations to show that the right of free speech is not protected in every instance.
"* * * A reasonable infringement of the freedom of speech or press will be sustained under the police power, and an abuse of the freedom may be punished. * * *" 10 Ohio Jurisprudence 2d 437, Constitutional Law, Section 362. *330
By virtue of the police power which every state has, certain laws are passed which, as it is often stated, must have reference to the comfort, safety, health, morals, or welfare of society.City of Cincinnati v. Correll,
Section
"No person shall abuse a child or aid, abet, induce, cause, encourage, or contribute to the dependency, neglect, or delinquency of a child or a ward of the Juvenile Court, or act in a way tending to cause delinquency in such child. * * *"
In a Supreme Court decision involving the case of Herndon v.Lowry, Sheriff,
"The power of a state to abridge freedom of speech and of assembly is the exception rather than the rule; and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government. The limitation upon individual liberty must have appropriate relation to the safety of the state. Legislation which goes beyond this need violates the Constitution."
This court is asked to decide whether the trial and conviction of a mother for words she has spoken to her daughter constitute a violation of her right of free speech. The state alleges that when certain words are spoken, which quite conceivably could stimulate a child to violate the law, then by virtue of its police power it may prosecute the speaker of those words. The defendant alleges, on the other hand, that any prosecution and conviction merely for exercising one's right to speak is a violation of constitutionally-guaranteed rights.
We must determine here which shall give way when a confrontation occurs between an individual asserting his constitutional right of "freedom of speech" and a state asserting its right to act for the common welfare of citizens under its police powers.
It should be noted at this point that the line of separation that exists between the federal guarantee of free speech and the state's police power is not a clearly-defined one. In the struggle to obtain one or the other, many strong majority opinions have *331 been written, but very rarely without vigorous dissenting ones.
The earliest attempt to invoke the aid of the Supreme Court of the United States against state action in suppressing free speech was brought about in the case of Patterson v. Colorado, exrel. Atty. Genl.,
The first of these so-called tests was called the "bad tendency" test. According to this doctrine, expression which had a tendency, or which the Legislature could reasonably believe had a tendency, to lead to substantial evil could be prohibited. In Gitlow v. People,
"That a state, in the exercise of its police power, may punish *332 those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question."
The "bad tendency" test offers virtually no protection to freedom of expression. In theory all other social values or objectives are preferred to allowance of expression where any apparent conflict between the two exists. The test has now been abandoned. Dennis v. United States,
The "bad tendency" test came to be superseded by the "clear and present danger test." Mr. Justice Holmes brought forth that test in Schenck v. United States,
"* * * The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. * * *"
The doctrine was elaborated on by Mr. Justice Brandeis in a concurring opinion in Whitney v. California,
In Terminiello v. Chicago,
"All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, * * * within the limits of the city * * * shall be deemed guilty of disorderly conduct, * * *."
The Supreme Court in a five-to-four decision had this to say, at page four, while reversing in favor of the petitioner:
"Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose where it induces a condition of unrest, creates *333 dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute * * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * * There is no room under our Constitution for a more restrictive view. * * *
"The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand."
There is some contention that the "clear and present danger" test has now been abandoned by the Supreme Court because of its reasoning in Dennis v. United States,
We must conclude from the above that "the clear and present *334 danger" test may still be used as a method for determining whether the abridgment of free speech should be permitted.
In Dennis v. United States,
"The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech or publication created a `clear and present danger' of attempting or accomplishing the prohibited crime, e. g., interference with enlistment. * * *"
In applying the above rule to our immediate fact situation, we do not believe that a mother's instructions to her daughter that birth preventive measures should be used in premarital sexual acts create a "clear and present danger" of an evil which the state may prevent by the abridgment of constitutionally-guaranteed rights. Neither is there a "clear and present danger" of accomplishing the prohibited crime, i.e., contributing to the delinquency of a minor.
"When facts are found that establish the violation of a statute, the protection against conviction afforded by the
It would seem then that there is an imaginary line which separates speech which can be considered immune from state restrictions and speech in which the state has a substantial enough interest so that a restriction will be permitted. On which side of the line a certain utterance is to be placed is a matter for the courts to decide, taking into account the facts and circumstances surrounding a given case. Whether we apply the "clear and present danger" test as used in Wood v. Georgia,
Can anyone argue that it is wrong for parents to attempt to educate their own children in areas which are grossly neglected by our school systems? This is not only a parental right; it is a duty. This duty and right extend not only to parents who are educated and skilled in the use of the English language. We will not penalize a parent for not knowing how to be more discreet in a choice of words.
We do not contend that the words which were spoken could not possibly have contributed toward further delinquent acts. There is a possibility that they may have. However, since there is no evidence of any affirmative acts by the mother other than the words she spoke, this court is reminded of the age old adage that the law deals in probabilities not possibilities.
We, therefore, hold that:
1. Section
2. The trial and conviction of a parent for words alone are contrary to law.
3. The verdict was against the weight of the evidence, since there is no evidence showing that what was said and done actually had any effect on the acts of the child.
The judgment is reversed and final judgment rendered for the defendant. The defendant is discharged.
Judgment reversed.
SILBERT, C. J., WASSERMAN and SKEEL, JJ., concur. *336