Ohio appeals court says sexual solicitations weren’t fighting words

Monday, January 25, 1999

An Ohio state appeals court recently reversed the conviction of man who solicited sex from a male law enforcement officer because the state failed to prove the solicitations amounted to “fighting words.”

Alvin Lasher was charged and convicted in 1997 of violating an “importuning statute,” which provides: “No person shall solicit a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicitation is offensive to the other person, or is reckless in that regard.”

Lasher was charged after he offered to perform oral sex on an undercover Cleveland Metroparks ranger in a park bathroom. According to trial testimony, Lasher made his sexual offers to Sgt. Mark Carney while staring through a hole in a partition separating a toilet from a urinal.

Carney testified that Lasher’s solicitations were “fighting words” to him and that if he had been off duty he would have struck Lasher.

On appeal, Lasher argued that the importuning statute violated the First Amendment because it punished him for his speech. In addition, he argued that his conviction was improper because his solicitation did not amount to fighting words — a category of speech which receives no First Amendment protection.

Prosecutors argued that the statute had already been ruled constitutional by the Ohio Supreme Court several years ago and that Lasher’s words constituted fighting words.

In State of Ohio Metroparks v. Lasher, the Court of Appeals of Ohio, 8th Appellate District, ruled in its Jan. 14 opinion that the statute did not violate the First Amendment.

Though saying it was persuaded by Lasher’s arguments, the appeals court wrote that it had to follow the 1979 Ohio Supreme Court decision, State v. Phipps. In the Phipps case, the Ohio high court ruled that the importuning statute was impermissibly overbroad but said it could be interpreted to apply only to fighting words.

The fighting-words exception to First Amendment jurisprudence dates from the 1942 U.S. Supreme Court decision Chaplinsky v. New Hampshire, in which the high court ruled that words which by their very nature incite an immediate breach of the peace — fighting words — deserve no First Amendment protection. In Chaplinsky, the high court ruled that yelling “damned Fascist” at a city marshal constituted fighting words.

Lasher argued that the Ohio statute still was unconstitutional even if applied only to fighting words, because the 1992 U.S. Supreme Court decision R.A.V. v. St. Paul makes it clear that a state may not criminalize certain content- or viewpoint-based subcategories of fighting words.

Lasher argued that the state was criminalizing only “fighting words” spoken to people of the same sex.

Although it seemed to accept Lasher’s reasoning, the court felt compelled to follow the Phipps case and to dismiss the constitutional argument.

The state court nevertheless reversed Lasher’s conviction, finding that the state had not shown that Lasher’s solicitations amounted to “fighting words.”

The court noted that Lasher did not make any “physical move” toward the officer and did not ask the officer to perform any acts on him. The court also noted that the officer was “trained to exercise a higher degree of restraint than the average person, especially in this factual scenario where he is acting as a decoy in the hopes of eliciting a solicitation.”

The appeals court concluded that “although [Lasher's] words may well have been inappropriate, annoying and even offensive, nonetheless, they did not rise to the level of fighting words.”