Ohio appeals court reverses conviction of woman who cursed in store

Thursday, December 9, 1999

A Garfield Heights, Ohio, woman who cursed during a confrontation with a police officer in a drug store could not be convicted of disorderly conduct because her speech did not constitute “fighting words,” an Ohio appeals court has ruled.

Ellen Yaro was charged with disorderly conduct after an incident in March 1998 at the Medic Drug Store in Garfield Heights.

Yaro entered the store upset because her two daughters and a friend had been informed that they could not be in the store without an adult. The girls were told by the store security guard, who was also a police officer, that they had to leave unless they were accompanied by a supervising adult. The officer told the girls to leave because some cosmetics had been discovered missing after the girls had been in the store by themselves on another occasion.

Yaro went to the officer and allegedly said, “This is bulls—” several times. Another witness said Yaro told the officer, “I will have your badge, you son of a b—-.”

Local prosecutors charged Yaro with violating a city ordinance prohibiting disorderly conduct. The law defines disorderly conduct as “making unreasonable noise or offensively coarse utterance … which by its very utterance or usage inflicts injury or tends to incite an immediate breach of the peace.”

Yaro argued that she could not be convicted of this charge, because her speech was protected by the First Amendment. However, in May 1998, a trial judge convicted her, ruling that she was not entitled to any First Amendment defense because her curse words constituted fighting words.

In 1942, the U.S. Supreme Court in Chaplinsky v. New Hampshire defined fighting words as words which are likely by their very utterance to inflict injury, or which tend to incite the average person to immediate violence. The high court said that fighting words receive no First Amendment protection.

An Ohio appeals court reversed Yaro's conviction in City of Garfield Heights v. Yaro, finding that her speech did not amount to fighting words. “The test for determining what words constitute 'fighting words' is whether the words used would reasonably incite the average person to retaliate,” the appeals court wrote in its Dec. 2 opinion.

The court concluded that Yaro's words were not of “the intensity required to either injure or incite others.” The court also noted that the police officer testified that he was not offended by her comments.

J. Michael Murray, attorney for Yaro, called the decision a “great opinion” and a “wonderful victory” for his client.

“This is a decent woman who did nothing wrong and had never come into contact with the criminal justice system before,” he said. “She never should have been charged with this offense; it was not even a close call. To say that her speech was fighting words is preposterous.”

The attorney who represented the city could not be reached for comment.