Her cop-cussing ruled fighting words, not free speech

Tuesday, July 5, 2011

An Ohio woman who repeatedly cursed at the police after they arrested her son committed disorderly conduct and had no First Amendment free-speech defense, an Ohio appeals court ruled recently.

Dorthea Frazier’s son Cody was arrested by Akron police after a brief car chase. Dorthea Frazier yelled at the arresting officers: “What the f— are you arresting my son for? What are you doing?”

She then yelled at a lieutenant: “You f—ing crooked a– cop” and “You’re a b—-.” The lieutenant apparently ordered her to desist from further yelling, but Frazier persisted. Officers on the scene testified that her cursing drew a growing crowd and presented a possibly dangerous situation.

Officers charged her with resisting arrest and disorderly conduct. In the course of her arrest, she suffered a broken arm.

A jury found her guilty of disorderly conduct. During that trial, she requested a jury instruction on freedom of speech that read in part:

“In the event that you find that the Defendant’s conduct was Constitutionally protected free speech, then you must find the defendant not guilty. A person cannot be convicted of disorderly conduct based on the words the person has spoken because such speech is constitutionally protected unless the defendant’s words rise to the level of fighting words.

“A person cannot be convicted of disorderly conduct by the use of words because the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”

Frazier relied on an Ohio Supreme Court decision State v. Lessin (1993), involving the case of a person who burned an American flag to protest U.S. involvement in the Persian Gulf. In its decision, the state high court said that when a criminal offense arises from a combination of constitutionally protected speech and unprotected conduct, the jury must be instructed that it cannot consider constitutionally protected speech as evidence of guilt.

The trial judge refused Frazier’s request, finding the instruction unnecessary. On appeal, an Ohio appeals court affirmed the conviction in its June 29 decision in State v. Frazier.

“Ms. Frazier’s jury instruction was not necessary given the facts at issue,” the appeals court wrote, reasoning that “it was necessary for the trier of fact (the jury) in this case to consider Ms. Frazier’s conduct in its entirety when making a determination as to whether she had broken the law.”

The Ohio appeals court distinguished the Lessin decision from Frazier’s case, finding that it was clear in Lessin that the defendant had a First Amendment right to burn an American flag as a form of political protest. The appeals court reasoned that Dorthea Frazier did not have a First Amendment right to curse repeatedly at the police officers because her speech rose to the level of fighting words — words that the U.S. Supreme Court defined as those which by their utterance inflict injury or incite an immediate breach of the peace.

The appeals court reasoned that “Ms. Frazier’s language rose to the level of fighting words and cannot be characterized as merely rude or insulting words generally directed towards law enforcement.” Crediting the testimony of several officers, the appeals court agreed that Frazier’s comments threatened their safety.

Frazier argued that her profanity was not fighting words because it was directed at police officers, who are held to a higher standard in law. She contended that the fighting-words inquiry should be evaluated under a “reasonable officer” test as opposed to a “reasonable person” test. But the appeals court refused to adopt a “reasonable officer” test, citing Ohio Supreme Court precedent.

Akron law professor J. Dean Carro said he would appeal the decision. He told the First Amendment Center that there “should be a higher standard” for police officers in fighting-words cases.

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