An Ohio appeals court upheld the ethnic-intimidation and disorderly conduct convictions of a Columbus, Ohio, man who uttered the “n-word” repeatedly at a neighbor. The court also rejected First Amendment challenges to both ordinances.
On Nov. 21, 2018, Sean Fabich got into an argument with his neighbor Willis Brown, an African-American neighborhood commissioner. Brown at the time was talking to another neighbor, Dana Moessner. Both Brown and Moessner were Near East Area Commissioners for their neighborhood. Fabich told Brown and Moessner they were not good commissioners.
Brown contended that he ignored Fabich, who then unleashed a torrent of profane and racial slurs at Brown. Fabich claimed that Brown initially called him “Tarzan” but Brown and others denied this happened. Brown later filed a complaint with the police, who charged Fabich with ethnic intimidation and disorderly conduct.
In June 2019, a jury in Franklin County Municipal Court found Fabich guilty on both counts. The judge sentenced him to 60 days in jail, 30 days of house arrest, and two years’ probation.
On appeal, Fabich challenged the constitutionality of the disorderly conduct ordinance, which provides:
NO person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following … making unreasonable noise or offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person.
The Ohio Court of Appeals upheld the convictions in its Dec. 31, 2020, opinion in City of Columbus v. Fabich. The appeals court noted that the language of the disorderly conduct ordinance was broad but that the Supreme Court of Ohio had interpreted disorderly conduct laws involving speech to be limited to a narrow unprotected category of speech known as “fighting words.” In Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court had defined fighting words as “words which by their very utterance inflict injury and cause an immediate breach of the peace.”
The Ohio appeals court reasoned that the utterance of the “n-word” in an insulting matter to an African-American person constitutes fighting words. The appeals court thus determined that the disorderly conduct conviction was proper.
The court then addressed the ethnic-intimidation ordinance, which provides that prosecutors may add an enhancement offense if the predicate offense involved a victim selected for his or her race, color, religion, sex, sexual orientation, gender, gender identity, national origin, or age. In this case, disorderly conduct was the predicate, or underlying, offense.
Fabich contended that this ordinance was unconstitutional because it amounted to impermissible content- and viewpoint-based discrimination against offensive speech. However, the appeals court said the ordinance “punishes a bigoted motive for employing fighting words against Brown, without regard to what those words were.” The court said that “it is permissible for the government to add to the punishment of crimes where the criminal acts were committed due to a repugnant or socially destabilizing (for example, racist) motive.”
The appeals court did find that the lower court erred by not allowing Fabich a chance to allocute, or speak before sentencing. Further, the lower court erred by not determining what sentence applied to each offense. Thus, the case was remanded for resentencing.
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).
