“Disturbing Lawful Meeting” Doesn’t Need to Be “Substantial” to Be Criminal, at Least if a “Purpose to … Disrupt” Is Shown

From a May 5 decision by the Ohio Court of Appeals in City of Nelsonville v. Nguyen, decided by Judge Michael Hess, joined by Judges Jason Smith and Kristy Wilkin:

The State of Ohio, City of Nelsonville appeals the judgment rendered in this criminal case involving an offense of disturbing a lawful meeting. The State contends that the trial court erred when it added the element of “substantial” to the offense of disturbing a lawful meeting under R.C. 2917.12(A)(1) to its jury instructions….

The State presented witness testimony from the Nelsonville City Council President, Gregg Clement, that the Nelsonville City Council held a regular meeting on April 14, 2025 at which two new council members were to be sworn in following the roll call. However, after roll call and before the swearing in, [former City Council President] Nguyen stepped forward and began speaking.

Clement called Nguyen to order and instructed her that it was not the appropriate time to speak and that she could make comments during the citizens’ comment period. Nguyen continued to speak, and Clement called her to order a second time and again instructed her that she could speak under the citizens’ comment period. Nguyen continued to speak and Police Chief Devon Tolliver, who was providing security for the meeting, stepped in and tried to get Nguyen to stop speaking, but she continued so Chief Tolliver removed her from the council meeting.

Clement called a recess of the meeting for approximately 10 to 15 minutes to allow everyone to regain composure. Following the recess, the meeting was resumed, there were no further interruptions, council business was conducted, and the meeting concluded. Clement testified that he believed that Nguyen had the misconception that she was the Nelsonville City Council President and could speak anytime during the meeting. However, because Nguyen had resigned from council several weeks earlier, Clement understood that Nguyen was no longer a member of council.

Nguyen testified that she believed that she was the city council president during the April 14, 2025 meeting and had the right to speak when she did without waiting until the citizens’ comment period. Nguyen testified that it was her intent to speak for two minutes. A video recording of the meeting was played for the jury. The video shows Nguyen speaking and arguing with council president and the police chief continuously for approximately three and one-half minutes. Nguyen continues to argue loudly with law enforcement off camera as she is removed from the meeting, such that Clement called a recess for approximately 10 to 15 minutes….

Nguyen was charged with a violation of Ohio Rev. Code 2917.12(A)(1):

(A) No person, with purpose to prevent or disrupt a lawful meeting, procession, or gathering, shall do either of the following:

(1) Do any act which obstructs or interferes with the due conduct of such meeting, procession, or gathering ….

The question was whether a “substantiality” element, which wasn’t included in the statutory text, was nonetheless required by Ohio law, and the court said no:

[An earlier] case, State v. Schwing (Ohio 1975), involved the conviction of Schwing under R.C. 3761.11, which stated, “No person shall willfully interrupt or disturb a lawful assemblage of persons,” after he entered a meeting room at a public university where speakers were discussing proposed changes to the Ohio Criminal Code. Schwing shouted profanities and physically restrained a municipal court judge in attendance. The Court recognized that R.C. 3761.11 was an attempt to discourage deprivation of the right to assemble…. The Court found that audience activities of heckling and booing maybe be impolite but nevertheless advance the goals of the First Amendment.

The First Amendment contemplates a debate of important public issues; its protection can hardly be narrowed to the meeting at which the audience must passively listen to a single point of view. The First Amendment does not merely insure a marketplace of ideas in which there is but one seller.

The Court found that R.C. 3761.11 made no distinction between constitutionally protected interruptions of a lawful assemblage and interruptions which substantially impinge on the right of assembly. The Court held that the trial court’s charge to the jury should have narrowed the scope of R.C. 3761.11 to willful disturbances that cause a lawful assemblage “to terminate in an untimely manner” or those which “substantially impair the conduct of the assemblage.”

Since R.C. 3761.11 was repealed and replaced by R.C. 2917.12, the Supreme Court of Ohio has not considered the constitutionality of R.C. 2917.12…. However, other Ohio courts have. In State v. Brand (Ohio App. 1981), Brand was shouting during an event held on Fountain Square in Cincinnati where First Lady Rosalyn Carter was speaking…. The appellate court held that the trial court erred when it did not give limiting jury instructions that the interference must be “substantial” as defined by the Court in Schwing.

In State v. Wolf (Ohio App. 1996), Wolf was convicted of disturbing a lawful meeting in violation of R.C. 2917.12(A)(1) after he attended a local board of health meeting and attempted to sit at the board table and make statements about another attendee…. The appellate court [held]:

R.C. 2917.12(A)(1) does not contain the term “substantial,” and therefore it was not necessary for the trial court to instruct the jury on the definition of the term or on any limitation of the statute in relation to the term….

In State v. Zagger (Ohio App. 1981), Zagger was convicted of disturbing a lawful meeting under R.C. 2917.12 for a “pie in the face” attack on a speaker at a public high school…. The appellate court … found that Schwing was only applicable to the repealed R.C. 3761.11. Zagger was charged under was R.C. 2917.12 which the court found was “not identical to its predecessor. In addition, it so clearly encompasses the corrective principle of Schwing, that its constitutionality without a limiting instruction is patent.”

For R.C. § 2917.12(A) contains a constricting and defining preface which attaches to all the prohibited acts which follow. That preface limits the statute’s prohibitions to acts whose purpose is “to prevent or disturb a lawful meeting, procession, or gathering ….” So defined the perimeter of the unlawful conduct confines only unprotected acts. Thus, R.C. § 2917.12 did not require a delineating instruction to save its constitutionality.

In Columbus v. Doyle (Ohio App. 2002), Doyle was convicted of disturbing a lawful meeting in violation of a city ordinance identical to R.C. 2917.12. Doyle was at a public school district meeting, which allowed speakers three minutes of speaking time during a public comment period. Doyle went over his three minutes and was told several times to stop commenting and sit down. He refused and was physically removed by police officers and charged with disturbing a lawful meeting…. The appellate court found that the statute was constitutional because it does not regulate the content of a person’s speech ….

Here Nguyen was not in the public square or on a public university like the defendants in Schwing and Brand, where strong First Amendment rights to freedom of speech exist; she was at a city council meeting…. City council meetings are limited public forums. Because Nguyen was at a limited public forum, her speech could be limited to the discussion of certain topics and limited to a designated and abbreviated period.

The Nelsonville City Council established a viewpoint neutral and reasonable citizens’ comment period and asked Nguyen to hold her comments until the citizens’ comment period. She refused and was removed and charged with disturbing a lawful meeting. Nguyen does not contend, nor do we find any evidence in the record, that she was prevented from speaking due to the viewpoint of her speech.

We find the analysis of Wolf, Zagger, and Doyle persuasive. R.C. 2917.12(A)(1) does not contain the term “substantial” and targets persons who act “with purpose to prevent or disrupt a lawful meeting.” …

Because this case does not involve a traditional public form, like a public street or park, our holding is limited to limited public forums. Thus, we do not consider the constitutionality of R.C. 2917.12 as applied to a traditional public forum….

A procedural twist: This was an appeal from a judicial decision that led to a jury acquittal. That is normally forbidden by the Double Jeopardy Clause, but not here, because the government was just trying to clarify the law going forward, rather than trying to undo the acquittal of Nguyen in particular:

The jury found Nguyen not guilty. The State filed a motion for leave to appeal the trial court’s jury instruction, which we granted. Under R.C. 2945.67(A) and App.R. 5(C) a prosecuting attorney “may appeal by leave of the court to which the appeal is taken any … decision, except the final verdict, of the trial court in a criminal case.” This provision grants us “discretionary authority to review substantive law rulings … which result in a judgment of acquittal so long as the judgment itself is not appealed.” “Even where principles of double jeopardy preclude retrial so that no current controversy exists, appellate review is permitted if ‘the underlying legal question is capable of repetition yet evading review.'”

See this post for more on this sort of procedure.

Bradley S. Nicodemus (The Nicodemus Law Office, LPA) represents the City of Nelsonville.