Court: Sex Remarks Not Protected
By Kimball Perry, Post staff reporter
Originally published in the Cincinnati Post, June 24, 2002
Brian Bailey's crude sexual remarks to a 16-year-old girl aren't protected free speech and his resulting criminal conviction stands, an appeals court ruled Friday.
Bailey was a 29-year-old stock broker in January 2001 when he went to an Anderson Township gym.
There, he met the teen, who was working out in a McNicholas High sweatshirt that bore her name.
The 6-foot-3 Bailey approached the girl, who was on the gym's track while her mother was elsewhere in the gym, and conducted what he referred to as "awkward flirtations."
But the teen said he asked her to do the splits, watched her as she jogged and asked her if her boyfriend ever pressured her for sex.
The teen told him to stop and leave her alone several times.
"His response was, 'Oh, that's because you're a good little girl, and mom raised you good,'" said the unanimous decision, written by Ohio First District Court of Appeals Judge Robert Gorman of Cincinnati.
"And then he said, 'Well, you know, in my eyes, girls mature a lot faster than guys, so you're really 18 or 19.'"
She told him again to leave her alone. He responded by stating her name and school and telling her he would watch for her at school, the decision said.
She left for the weight room, where Bailey continued to work out near her. She told her mom, who confronted Bailey and told him to stop. He responded by calling the mother "crazy," "sick" and "a lesbian," the judges said.
The mother called police, who arrested Bailey on charges of persistent disorderly conduct.
While Bailey admitted his comments were "dumb," he said he didn't make many of those he was said to have made. Even if he did, he insisted he had the right to utter them because of the First Amendment right to free speech.
The municipal court judge disagreed and convicted him of the misdemeanor, a ruling he appealed.
"In this case," Gorman said, "we are confronted with the issue of just how far the First Amendment protects sexually inappropriate comments to the opposite sex, and under what circumstances a person's refusal to desist, when he knows his comments are offensive to the listener, crosses the line between protected speech and disorderly conduct."
The court ruled because the victim was a teen and because Bailey's words were said to cause her harm or provoke her, they don't qualify for free-speech protection.
"In sum, the First Amendment generally protects the expressions of emotions, including amorous or even lecherous ones, permitting a person to engage in flirtation, even when the object of the flirtation is in no way receptive," Gorman wrote.
"But the First Amendment does not protect all forms of sexual solicitation, particularly those involving underage persons."
