## Facts

- The City of Columbus separately prosecuted Irvin Dana Beal and Imogene Fraley under Columbus City Code § 2327.01, which prohibited disturbing public order by, among other things, using “obscene or profane language” in public.
- Beal, participating in an anti-war demonstration, directed a crude expletive at a street preacher who was condemning the demonstrators; he was arrested and convicted solely on the basis of his words.
- Police investigating a neighborhood complaint argued with residents including Fraley; she called officers profane names and was charged with (1) disorderly conduct under § 2327.01 for “obscene” language and (2) using violence against a police officer under Columbus City Code § 2355.01.
- Fraley resisted arrest by struggling, kicking, and running into her house; the record did not establish that officers used excessive force.
- Trial courts convicted both defendants; the court of appeals affirmed, treating the speech as unprotected “fighting words.”
- The Ohio Supreme Court consolidated the cases for review.

## Issues

1. Whether convictions under § 2327.01 based on “obscene or profane language” were valid where the speech was vulgar but not legally obscene under constitutional obscenity standards.
2. Whether the convictions could be affirmed on a “fighting words” theory when the prosecutions were charged, tried, and argued as obscenity cases.
3. Whether a person may lawfully use force to resist arrest by a known police officer on the ground that the arrest is unlawful.

## Decision

- The court reversed Beal’s disorderly-conduct conviction under § 2327.01.
- The court reversed Fraley’s disorderly-conduct conviction under § 2327.01.
- The court affirmed Fraley’s conviction for using violence against a police officer under § 2355.01.
- The court held the profane insults at issue were not “legally obscene” because they lacked sexual, prurient content required by constitutional obscenity doctrine.
- The court refused to sustain the disorderly-conduct convictions on a post hoc “fighting words” rationale not presented as the basis of criminal liability at trial.
- The court adopted the modern rule that a person may not use force to resist arrest by a known (or reasonably apparent) police officer, even if the arrest is later found unlawful, absent excessive or unnecessary force by the officer.

## Legal Principles

- “Obscenity” in criminal enforcement is limited to sexually explicit material meeting constitutional obscenity standards; ordinary profanity and vulgar insults without erotic content are not legally obscene.
- Due process bars affirming a criminal conviction on a legal theory not charged and not submitted to the trier of fact; defendants must have notice of the theory of criminality and an opportunity to defend against its elements.
- A private citizen may not use force to resist an arrest by a known or reasonably apparent police officer performing official duties solely because the arrest is unlawful.
- A limited right of self-defense remains when an officer uses excessive or unnecessary force.

## Conclusion

The Ohio Supreme Court set aside disorderly-conduct convictions premised on “obscene” language because crude, nonsexual insults are not obscenity and because convictions cannot be upheld on an untried “fighting words” theory, while separately affirming that a citizen generally may not use force to resist arrest by a known officer unless resisting excessive force.


City of Columbus v. Fraley, 41 Ohio St. 2d 173 (1975)