Ohio high court strikes down law banning same-sex solicitation

By The Associated Press

05.18.02

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COLUMBUS, Ohio — A unanimous Ohio Supreme Court this week struck down a state law prohibiting same-sex solicitation.

Justice Deborah Cook, writing for the majority, said the law violated the equal protection guarantees of the U.S. and Ohio constitutions.

Cook said the law's effect was to limit one type of expression, namely "offensive same-sex solicitations," while allowing equally offensive solicitations between opposite sexes.

On that basis, the 7-0 ruling found that the law is invalid because it is a content-based restriction on speech.

The May 15 decision overturned an appeals court ruling that upheld the conviction of an Ashtabula County man following his arrest in July 1999 on a charge of soliciting sex from a male jogger.

Eric Thompson appealed his conviction, arguing that the law violated the constitutional guarantees of equal protection.

The 11th District Court of Appeals said it found Thompson's argument compelling but had followed with "considerable reluctance" a 1979 Ohio Supreme Court decision that had upheld the law, according to the May 15 decision.

That 1979 decision said a person could be arrested in Ohio for a same-sex solicitation if the person knew the solicitation could cause injury or provoke the average person to violence, a concept know as the "fighting words" doctrine.

Since that ruling, however, the U.S. Supreme Court has found that "fighting words" are excluded from First Amendment protection because they contain "a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey," according to the May 15 decision.

In the same way, Ohio's law is a content-based restriction because it outlawed only one form of solicitation, Cook said.

Preventing the risk of violent responses to offensive solicitations could have been achieved "by prohibiting all offensive solicitations of sexual activity," Cook wrote.