A former sheriff’s department employee who was convicted of disorderly conduct for his vile language directed at another officer at a gas station lost his appeal before an Ohio appeals court. The appeals court ruled in State v. Hale that the repeated profane language of a sexual nature towards another officer crossed the line from protected speech into unprotected fighting words.
In October 2016, Jayson Hale and his wife entered a gas station in Oak Harbor, Ottawa County, Ohio, where he saw Eric Parker, an officer with the Oak Harbor Police Department.
Upon seeing Parker, Hale loudly stated: “Fuck you, Parker.” He then also uttered the phrase “Suck my dick, Parker” multiple times. Another law enforcement officer witnessed the comments, as did a gas station employee.
Hale was charged with disorderly conduct under Ohio state law, which prohibits a person from causing “inconvenience, annoyance, or alarm to another” by “making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to another person.”
A judge convicted Hale after a bench trial. On appeal, Hale contended that he did not commit disorderly conduct, because under the First Amendment, his words did rise to the level of fighting words – defined by the U.S. Supreme Court in Chaplinsky v. New Hampshire (1942) as words “that by their utterance inflict injury or cause an immediate breach of the peace.”
The Ohio appeals court rejected Hale’s argument, noting that he repeatedly uttered “obscene remarks” directly at Officer Parker. Under the circumstances, the appeals court noted that such repeated language ‘would reasonably incite the average person to retaliate.”
The Ohio appeals court’s decision shows that the fighting words doctrine is alive and well in the lower courts. As I explained in a previous piece, the doctrine is “an active, not archaic, part of First Amendment law.”