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Disorderly Conduct Charge Dismissed Because Words Spoken By Defendant Protected Under First Amendment

disorderly conduct first amendment vulgar name

Ohio’s disorderly conduct statute generally prohibits acting or speaking in an offensive way to another person.  However, the U.S.Constitution protects free speech under the First Amendment.  This means that even though some words might be rude or offensive, they cannot be punished criminally unless they are found to be “fighting words.”

Here, the defendant was charged with disorderly conduct because he repeatedly called his feuding neighbor a vulgar name.  But since the neighbor was not actually fearful (he was egging him on) and there was nothing more to the interaction, the court found that the speech was protected – and the disorderly conduct conviction overturned. 

Defendant Calls Neighbor an Offensive Name

Defendant is a long distance truck driver whose house backs up to an alley.  His neighbor’s home next door backs up to the same alley. 

The neighbor’s daughter saw defendant walk onto the covered carport near her house, close enough to the house so that she could have opened the door and touched him.   She was afraid and started yelling and ran to the back door.  The neighbor’s wife said she saw defendant walk toward the back of her house as well.  

The neighbor was sleeping when he heard his daughter yelling.  He went to the front door and saw the defendant pull his semi truck toward his house.  The two men started yelling at one another and the defendant called the neighbor a vulgar name as well as yelling “other stuff”.  

The neighbor put his hand over his ear and said “I can’t hear ya!” (essentially egging him on).   The defendant then repeated the vulgar name multiple times.  The neighbor said he felt “intimidated” during the defendant’s tirade and called the police.

Defendant was charged with criminal trespass (a fourth degree misdemeanor) and disorderly conduct (a minor misdemeanor). 

Ohio’s Disorderly Conduct Statute

Ohio’s disorderly conduct statute (R.C. 2917.11(A)(2)),  states:  

“(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:  Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person.” 

However, under Ohio and federal law, saying words that are “rude” or “insulting” cannot be made illegal because they are protected by the First Amendment.  Only when the words reach a point where they become “fighting words” can they be punished criminally.  

“Fighting words” are words intentionally said to another person that are so venomous as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically (i.e with a fight).

Whether a statement is  considered “fighting words” or protected speech will generally depend on the circumstances, including the speaker’s conduct. 

Disorderly Conduct Charge Dismissed

Here, the court determined that although the neighbor testified he was “intimidated,” his actions did not match a man who was actually intimidated.   By putting his hand to his ear, he was egging defendant on — not acting fearfully.  

The court determined that defendant’s words – though rude and offensive – did not amount to “fighting words.” Thus, they were protected free speech under the First Amendment. 

The disorderly conduct charge was dismissed.  If you are facing a disorderly conduct charge and have a question about the details of your situation, talk to one of our disorderly conduct attorneys about your case. 

Uhrichsville v. McPeck, 2014-Ohio-3798