1. R.C. 2917.12(A)(1), disturbing a lawful meeting, is not unconstitutional; it is not vague, it is not overbroad when it is construed so as to remove all threat to constitutionally protected expression, and it does not violate free speech rights. ( State v. Schwing, 42 Ohio St.2d 295 [71 O.O.2d 288], applied and followed.) 2.
Our review of cases in our sister states reveals that they have often been able to cure their disruption of lawful meeting statutes by narrowing them in such a manner that the statutory proscription extends only to constitutionally unprotected activities, i.e., those activities intended to prevent or disrupt a lawful meeting and which either cause the untimely termination of the lawful meeting or substantially impair the conduct of the lawful meeting. E.g., Dempsey v. Colorado, supra, 117 P3d at 805 (II) (A); Ervin v. Tennessee, supra, 40 SW3d at 520; Schwing v. Ohio, 328 NE2d 379 (Ohio 1975). However, we cannot preserve the constitutionality of OCGA § 16-11-34 (a) in this case.
We note that, with minimal variations, other courts have likewise adopted an actual disruption standard. See State v. Ervin, 40 S.W.3d at 520 (whether a given conduct substantially impairs a meeting depends on the actual impact of the misconduct on the meeting); State v. Linares, 232 Conn. 345, 655 A.2d 737, 744 (1995) (construing disturbing legislative proceedings statute to require "specific intent to interfere with the legislative process; actual interference with the legislative process; and causal connection between the two"); City of Spokane v. McDonough, 79 Wash.2d 351, 485 P.2d 449, 450 (1971) (requiring further indication of the protester's intent to break up the meeting or otherwise deprive the speaker and the audience of their rights to hear and speak); State v. Schwing, 42 Ohio St.2d 295, 328 N.E.2d 379, 386 (1975) (classifying as disturbance of lawful assembly, those disturbances that "cause a lawful assemblage to terminate in an untimely manner"). Appropriately, the statute, thus, focuses on the conduct of the defendant — not the content of his speech.
The statute is, therefore, overbroad. See In re Kay, 83 Cal.Rptr. 686, 464 P.2d 142; State v. Schwing, 42 Ohio St.2d 295, 328 N.E.2d 379 (1975) (both cases holding statutes similar to § 42.05 overbroad). We further conclude that the statute's deterrent effect on protected expression is substantial.
{¶ 19} In finding the ordinance unconstitutionally vague, the Eighth District Court of Appeals took a different tack. Following Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222, and State v. Schwing (1975), 42 Ohio St.2d 295, 71 O.O.2d 288, 328 N.E.2d 379, the court found it could avoid striking down the ordinance by construing it to require a showing of both "willful conduct" and "conduct which either causes the class to terminate in an untimely manner or substantially impairs the conduct of the classroom." Applying these requirements to the facts, it concluded that the city had presented insufficient evidence that the mother's acts were willful and that she caused a substantial impairment in the conduct of the classroom.
Appellant complains that appellee did not present sufficient evidence to sustain a conviction under R.C. 2917.12(A)(1) and, by failing to grant his motion for a judgment of acquittal, the trial court violated his constitutional right to freedom of expression. Appellant contends that his conduct represented constitutionally protected free speech that R.C. 2917.12 was never intended to cover and cites State v. Schwing (1975), 42 Ohio St.2d 295, 71 O.O.2d 288, 328 N.E.2d 379, in support. Appellant further cites State v. Brand (1981), 2 Ohio App.3d 460, 2 OBR 556, 442 N.E.2d 805, wherein the court stated that R.C. 2917.12(A)(1) is not overbroad when it is construed to remove all threat to constitutionally protected expression, and it does not violate free speech rights.
See, e.g., In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142 (1970); State v. Hardin, 498 N.W.2d 677 (Iowa 1993); State v. Schwing, 42 Ohio St.2d 295, 328 N.E.2d 379 (1975); Morehead v. State, 807 S.W.2d 577 (Tex.Crim.App. 1991). In State v. Smith, supra, the decision to remove the trouble-maker, by force if necessary — that is, to arrest him — was made by the chairman of the meeting.
If we had before us a transcript demonstrating that the jury was not so instructed, we would hold that the writ should have been granted because of the possibility that the jury convicted Thompson for protected speech. See State v. Schwing, 42 Ohio St.2d 295, 306, 328 N.E.2d 379 (1975); cf. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 92, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). However, in the absence of a transcript of the court's instructions to the jury, and according to the state proceedings the presumption of regularity to which they are entitled, we have no alternative but to hold that Thompson has failed in carrying his burden of proving that the jury was not properly instructed.
Novak cites several cases in which courts determined statues were overly broad when they proscribed constitutionally protected activity. See, City of Houston, Tex. v. Hill, 482 U.S. 451, 455 (1987); State v. Schwing, 42 Ohio St. 2d 295, 306 (1975); State v. Brand, 2 Ohio App. 3d 460, 460 (1981); Toledo v. Thompson-Bean, 173 Ohio App. 3d 566, 573 (2007); City of Euclid v. Moore, No. 75143, 1999 Ohio App.LEXIS 5900 at * (8th Dist. Dec. 9, 1999). But none of these cases held that, in the absence of any clear legal precedent and for purposes of qualified immunity, a police officer should question whether a statute is constitutional.
Our decision in Machholz , as well as our conclusion here, is consistent with the weight of authority from around the country. See, e.g. , In re Kay , 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142, 146, 149 (1970) (concluding that a statute prohibiting "willfully disturb[ing] or break[ing] up any assembly or meeting, not unlawful in its character," as "literally applied," violated the First Amendment (citation omitted) (internal quotation marks omitted)); State v. Fielden , 280 Ga. 444, 629 S.E.2d 252, 254, 256 (2006) (invalidating a statute on First Amendment grounds that prohibited "recklessly or knowingly commit[ting] any act which may reasonably be expected to prevent or disrupt a lawful meeting, gathering, or procession" (citation omitted) (internal quotation marks omitted)); State v. Schwing , 42 Ohio St.2d 295, 328 N.E.2d 379, 383, 385 (1975) (holding that a provision stating that "no person shall willfully interrupt or disturb a lawful assemblage of persons" was unconstitutionally overbroad absent a narrowing construction (citation omitted) (internal quotation marks omitted)). C.