State v. Semple

¶1 dissenting. I agree with the majority that repeated insults alone may reach the level of fighting words. Despite the defendant’s rude and insulting language, spoken with intent to annoy the police officer during the execution of his duties, I do not find that his words were: (1) likely to inflict injury by their utterance, or (2) likely to provoke the average person to an immediate retaliatory breach of the peace, as required by Cincinnati v. Karlan (1974), 39 Ohio St. 2d 107, 68 O.O. 2d 62, 314 N.E. 2d 162, a decision which relies upon Chaplinsky v. New Hampshire (1942), 315 U.S. 568. Where fighting words are not at issue, the state cannot regulate pure speech under R.C. 2917.11(A)(2), and utterance of such language cannot be constitutionally punished, pursuant to the First Amendment. The recent decision in Texas v. Johnson (1989), 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533, leads me to conclude that the Supreme Court continues to adhere to Chaplinsky, supra, and its progeny whenever government proposes to punish speech. As a matter of law, I would reverse the defendant’s conviction under R.C. 2917.11(A)(2). See State v. Miller (Mar. 29, 1976), Hamilton App. No. C-75383, unreported.