«header»
HAMILTON COUNTY, OHIO
State of Ohio / : / CASE NO.: «casenumber»PLAINTIFF / : / JUDGE: «judge»
-vs- / :
«defendant»
DEFENDANT / :
: / motion to dismiss
Now comes the Defendant, «defendant», by and through the undersigned counsel,
and hereby respectfully moves this Court to dismiss the pending charge of Disorderly Conduct on the grounds that the conduct and speech alleged to constitute the crime in this case is protected by the First Amendment of the United States Constitution and Art. 1, Sec. 11 of the Ohio Constitution. A Memorandum in Support of this Motion follows.
Respectfully Submitted,______
«attorney», # «osc_number»
Attorney for Defendant
«address1»
«city», «state»«zip»
«phone»
MEMORANDUM
Defendant has been charged with a violation of R.C. 2917.11(A)(2), which prohibits an individual from “recklessly caus[ing] inconvenience, alarm, or annoyance to another by . . . making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to another person[.]” Specifically, «lastname»is alleged to have ______.
This statutory proscription, however, is limited by the dictates of the First Amendment to the United States Constitution. As the United States Supreme Court has reiterated time and time again, “no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words.” SeeCincinnati v. Karlan, 39 Ohio St. 2d 107, 109-10, 314 N.E.2d 162,(1971), citing Cohen v. California, 403 US 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971). Fighting words are those that “are likely, by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace.” State v. Hoffman, 57 Ohio St.2d 129, 133, 387 N.E.2d 239 (1979). Speech may not be prohibited because it concerns subjects or topics that offend one’s sensibilities. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), reversed on other grounds. Nor does the First Amendment “permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, ... the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville, 422 U.S. 205, 210, 95 S. Ct. 2268,
45 L. Ed. 2d 125(1975) citing Cohen at 21.
Indeed, the First Amendment is not without its constraints; defamation, incitement, obscenity and pornography involving children are not embraced. However, none of those categories are implicated with respect to «lastname»’s conduct. Certainly, nothing that has been alleged “appeals to a prurient interest” as required under the Supreme Court’s definition of obscenity. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607,37 L. Ed. 2d 419(1973). Nor does «lastname»’s charged conduct or speech amount to fighting words.
For the foregoing reasons, «lastname»respectfully requests that this Court afford a full hearing on the matter and dismiss the pending charge of Disorderly Conduct.
Respectfully Submitted,______
«attorney», # «osc_number»
Attorney for Defendant
«address1»
«city», «state»«zip»
«phone»
CERTIFICATE OF SERVICE
I hereby certify that a copy of this document was served upon the Hamilton County Prosecutor/City of Cincinnati Prosecutor on ______by:
Ordinary Mail Fax Hand Delivery Dedicated Drop Box
______
Attorney for Defendant