[Cite as State v. Ford, 2026-Ohio-3605.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. {22}E-25-042
Appellee Trial Court No. 2024 CR 0091
v.
Ashli Ford DECISION AND JUDGMENT
Appellant Decided: September 15, 2026
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Peter Pattakos, for appellant.
*****
SULEK, J.
{¶ 1} Appellant Ashli Ford appeals the judgment of the Erie County Court of
Common Pleas, which convicted her of four counts of intimidation following a bench
trial. At issue in this appeal is whether Ford’s statement in a Facebook post that “I will
escort you to your demise in a manner more akin to Malcolm X than Martin Luther King
Jr.” constitutes a “true threat.” This court holds that, when considered in context, Ford’s
statement is not a true threat as a matter of law but is instead political hyperbole protected by the First Amendment. For the reasons more fully discussed below, the trial court’s
judgment is reversed, and Ford’s convictions are vacated.
I. Factual Background and Procedural History
{¶ 2} The present case began on March 15, 2024, when the Erie County Grand
Jury returned a 19-count indictment against Ford, consisting of nine counts of extortion in
violation of R.C. 2905.11, felonies of the third degree; four counts of intimidation in
violation of R.C. 2921.03, felonies of the third degree; three counts of
telecommunications fraud in violation of R.C. 2913.05, felonies of the fifth degree; and
three counts of falsification in violation of R.C. 2921.13, misdemeanors of the first
degree.
{¶ 3} The matter proceeded to a four-day bench trial, following which the trial
court found Ford guilty of the four counts of intimidation and not guilty of the remaining
fifteen counts. On appeal, Ford argues that her convictions for intimidation are based on
insufficient evidence because the allegedly incriminating statements constitute protected
speech under the First Amendment to the United States Constitution. This court,
therefore, will limit its focus to the facts pertaining to the counts of intimidation.
{¶ 4} Ford is a consultant, online podcaster, and self-styled investigative journalist
and victim’s advocate.
{¶ 5} In August 2023, she was charged with two counts of falsification in the
Norwalk Municipal Court. The charges arose from a conversation with David Smith, the
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Norwalk Chief of Police, in which she allegedly falsely accused Mike White, the
Norwalk Safety Service Director, of criminal behavior occurring 10 to 13 years earlier.
She was served with a summons on August 22 or 23, 2023, and was arraigned on
September 18, 2023. Eventually, the matter proceeded to a bench trial where she was
acquitted of the falsification charges.
{¶ 6} Shortly after her arraignment, on September 19, 2023, Ford attended a
Norwalk City Council meeting. During the public speaking portion, she claimed that she
was arraigned on false charges. She stated her intention to sue into bankruptcy a list of
Norwalk employees, including Stu O’Hara, the city law director.
{¶ 7} At issue in this case is a subsequent September 22, 2023 Facebook post in
which Ford stated the following, verbatim:
All the surrounding area’s LE and Law community are reaching out to me
saying the same things . . . “keep going; you have them”, “thank you”, “we
have been waiting for this”, “you were made for this”, “thank God for you”.
Dave Light, Stu O’Hara, Mike White, Dave Smith, Norwalk City Council:
I know that I have you on your knees. I’m not being arrogant. I am stating
pure fact! This is your VERY LAST opportunity to end this in a
respectable manner. These problems will not only be addressed, I’ll
personally see that they are corrected. You can be part of the solution or
part of the downfall. That is entirely up to you. Everyone is wrong at some
point. How you behave after is what defines you. The decisions you make
TODAY will define your entire career and the legacy you leave behind for
your children. I will not stop! I will slowly crumble the reputation every
single person who stands in way of justice. I will not be professional or
political, though I have mastered both. I will escort you to your demise in a
manner more akin to Malcolm X than Martin Luther King Jr. I’ve tried
gentle parenting. Now I’ll meet you on a level you seem to understand a
3.
little better. Legal avenues are being blocked Nobody will touch this
level of corruption!
Cool, cool. I tried it your way. I’m going to drag you through the court of
public opinion. Watch me compete with these people’s favorite Netflix
show. You can’t make this stuff up! It’s better than any book, TV show, or
movie I have ever seen! I’m going to drag out every single low down, dirty
deed; side piece; dick sent to the chic yall just pulled over; city money
spent on personal expenses; stolen city property; musical chairs jobs, shut
up settlements; nollied charges; human trafficking ring; child pornographer
and the people who view it; rapist; wife beater cop; let me shave but then
come out butt naked and demand sex cop; badge wearing drug dealer; sex
tape; lost rec key cards because a cop was banging a dispatcher; corruption
coverup; thong wearing judge; cops getting head in a park bathroom; cop
banging cis; cis who date HCSD staff, who help them get away before
busts; stolen gun; cops who tase kids and girlfriends; cops who have sex in
cruisers in parking lots; cops who have sex at the end of dead end streets- in
cruisers; cops who have sex on ride alongs- in cruisers; cops who lie about
police Chiefs to mayor’s so his buddy can get the job; attorney run trap
house; suicides that ain’t suicides; duped sheriff, missing women,
screenshots, accidents that ain’t accidents; police being targeted for telling
on bad cops; law directors covering for a married woman he was banging;
sketchy ass poker games; dirty politics; mayors downloading porn in
firehouse; firefighters banging eachother’s wives; murder; cases that look
like murder; every dollar spent without a council vote; every garbage deal
voted for personal gain . . . . .
You feel me? You are about to! Do your jobs! Do what is just and right!
Follow the laws! I will tell everytime you don’t!
When you see the uptick in New voter registration, just know they are
gearing up for me to run for mayor!
{¶ 8} The four named victims, Dave Light, Stu O’Hara, Mike White, and Dave
Smith, were witnesses in Ford’s falsification trial, and each testified in the underlying
trial in the present case.
4.
{¶ 9} Dave Light is the Mayor of Norwalk, a position he was elected to after
serving as Norwalk’s Chief of Police. He initially met Ford approximately 20 years
earlier when he investigated a complaint that her father was menacing her. He later had
interactions with her when she was managing a restaurant on the north side of the town.
More recently, he would meet with and assist Ford when she had difficulty obtaining
public records. During one of those meetings in 2023 with Light and Norwalk Law
Director Stu O’Hara, Ford discussed a number of crimes that she believed had been
committed by police officers and other officials, and for which she claimed to have
evidence. Light encouraged her to take the evidence directly to O’Hara.
{¶ 10} Light’s testimony then turned to the September 22, 2023 Facebook post
and why he viewed it as a threat:
A. Okay. When she gets later in the same page, first page, I will not
stop. I will slowly crumble the reputation of every single person who
stands in the way of justice. I will not be professional or political, though I
have mastered both. And this is the disturbing part, I will escort you to
your demise in a manner more akin to Malcolm X than Martin Luther King
Jr. I’ve tried gentle parenting. Now I’ll meet you on a level you seem to
understand a little better. So that’s – that’s the part that raises alarm to me.
Q. Explain to the Court why that rose alarm to you?
A. Well, these two gentlemen were both political activists.
Malcolm X was shot in a violent manner 21 times, and Martin Luther King
Jr. was shot once. So he – Malcolm X died in a much more violent manner.
And to escort me to my demise in a manner more akin to Malcolm X than
Martin Luther, to me that’s – that’s disturbing to me and it causes me a lot
of alarm, it’s not only to me, to my family.
Q. Why is that?
5.
A. Well, in our society people are greatly disturbed, and rightfully
so, about people who do harm to children. And we – when you have
several thousand followers and you accuse someone, anyone, of harming
children and being involved in child sex trafficking rings and stuff, that’s
dangerous. It’s a danger to me because there’s always some part of those
people that she reaches that actually believe that nonsense and will come
after me and my family. And that’s what causes me to feel threatened by
her for posting this stuff.
Q. Okay. Did that cause you to believe that you could be exposed
to some physical or property harm?
A. Oh, absolutely. Absolutely.
{¶ 11} Stu O’Hara similarly testified that he considered the Facebook post to be a
threat. Specifically, he identified Ford’s statement that “I know that I have you on your
knees. I am not being arrogant. I am stating pure fact! This is your very last opportunity
to end this in a respectable manner,” and remarked that it was then followed by her
statement that “I will escort you to your demise in a manner more akin to Malcolm X
than Martin Luther King Jr.” He testified that he viewed it as a threat because she used
the word “demise” in the context of Martin Luther King Jr., who was shot once, and
Malcolm X, who was shot over 20 times.
{¶ 12} On cross-examination, the following exchange was had:
Q. Okay. Let’s talk about – you were asked about Martin Luther
King versus Malcom X. All right. You said you’re not quite up to date on
your history but you were right. So one shot versus 21 shots, right?
A. Correct.
6.
Q. Are you familiar with their differences in philosophical
positions?
A. I believe they were quite different philosophically.
Q. How so?
A. Martin Luther King believed in, as I recall, civil disobedience,
but peaceful civil disobedience, peaceful protest. Martin Luther King had a
more – or, excuse me, Malcom X had a more violent approach toward
changing society.
Q. More militant, correct?
A. Correct.
Q. Couldn’t that be what she was talking about, she was done
playing nice and she wasn’t going to hold back?
A. I don’t know if that’s what she meant.
Q. Because you don’t know, right? You have no idea what her
intentions were?
A. All I know is what she’s printed here and was –
Q. Correct. Which can be interpreted different ways?
A. To me it was – only had one meaning.
Q. Okay. Even though you agree there are different – differences in
their philosophical approach to a civil rights movement?
A. In terms of the civil rights movement, yes.
Q. So if it only had one meaning, I guess, if both men were
assassinated what’s the difference between one and 21 bullets?
A. A more violent death.
7.
Q. Wasn’t it the same outcome? Why would you make that
distinction and not be talking about the actual distinction between the two
and their philosophical approach to the civil rights movement?
A. Well, I suppose one bullet it would be quick, being shot 21 times
it could be a whole heck of a lot more painful if you didn’t die on the first
bullet.
Q. I guess. I think that’s kind of a stretch in interpretation though,
wouldn’t you think? You’re putting a lot of thoughts into Ms. Ford’s head,
wouldn’t you agree?
A. No. I felt threatened by what she wrote.
Q. Okay. Has she ever made a violent threat towards you any other
time?
A. No.
{¶ 13} Mike White, the retired safety service director for the city of Norwalk,
testified that he met with Ford, Light, and O’Hara to discuss information she said she had
about criminal activity. White advised her that if she had any definitive proof she needed
to come forward with it. Ford then met with Dave Smith, the Norwalk Police Chief.
Following Ford’s meeting with Dave Smith, White filed falsification charges against
Ford “because she accused me of identifying stolen evidence in a case and talking
someone out of filing criminal charges.” Although Ford was ultimately acquitted, White
maintained that it was proven that she lied, but the prosecution could not prove intent.
He expressed disappointment over what he thought was a lack of effort on the part of the
prosecution team.
8.
{¶ 14} Regarding the September 22, 2023 Facebook post, White testified that
when he saw it, he was “very concerned” about physical harm. White believed that Ford
was mentally ill and a drug abuser. As to the specific threatening language, he explained
that “[t]he sentence about Malcolm X and Martin Luther King concern me.” He also
mentioned Ford’s statement that she was going to put him through the court of opinion.
White thought that “the tone of the email was extremely disturbing and threatening.”
{¶ 15} Finally, David Smith, the retired chief of police for the city of Norwalk,
testified that he met with Ford on July 20, 2023, regarding her claims of misconduct on
the part of police officers and other officials. During the meeting, Ford made more
allegations, but did not provide any verification or proof, which led to the falsification
charges filed by Mike White. Relevant here, Smith did not testify as to whether he found
the September 22, 2023 Facebook post to be threatening.
{¶ 16} Following the State’s presentation of evidence, Ford testified in her own
defense.
{¶ 17} Ford stated that her relationship with Light began to sour in May 2023,
when she accused him of misconduct. Regarding her September 22, 2023 post, Ford
described that she used the word “demise” as a synonym of downfall, and the meaning of
the post was political demise. As to her reference to Martin Luther King Jr. and Malcolm
X, she maintained that
Martin Luther King Jr. was a reactor. He typically waited until something
terrible happened. He used the circumstances of something terrible
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happening to incite people to effect change. Martin – Malcom X was a
little bit different. Again, he was – I wouldn’t call him a reactor, I would
call him proactive, he typically used events that had happened in the past,
patterns of events, to show why we don’t want history to repeat itself.
Sometimes people viewed him as violent, but he repeatedly described
himself as not for wanting violence. He described himself as being
someone who was a realist.
According to Ford, nothing about the post was meant to incite violence:
Q: Was the fact that both men are dead, that even cross your mind
when you wrote that post?
A: No.
Q: Were you alluding to death in any way, shape, or form, when
you wrote that post?
A: Absolutely not.
Q: Were you – were you meaning to convey that you were going to
harm the people listed in a manner more like Malcolm X versus Martin
Luther King?
A: Under no circumstances would I ever even consider to suggest
that. That – I compared these two men because I quote both of these men
quite a bit on my Facebook, particularly Malcolm X who I tend to agree
with a little bit more. I quote these men a lot. This is not me quoting them
about their death. I’m talking about their life. How they were activists.
How they lived. Their death is a shame. Their death is a disgrace in this
country. Why would I address that?
On cross-examination, Ford was asked why she did not refer to politicians like Richard
Nixon or Eliot Spitzer who left office in disgrace:
Q: Okay. But in that September 22nd, 2023 post you don’t cite any
elected officials who left in disgrace. You select two people who were
murdered, isn’t that true?
10.
A: Because I’m relating Martin Luther King and Malcolm X to how
I will escort them. So I wouldn’t be relating it to Richard Nixon who left in
disgrace because I’m not relating it to – the subject of that sentence is I, me.
I’m relating how I will lead them more akin to Malcolm X and Martin
Luther King.
Q: And, actually, Malcolm X and Martin Luther King were
violently murdered because they were public figures, isn’t that correct?
A: Oh, a lot of civil rights activists were murdered, sure.
Q: So when you use the word demise in that context it has only one
reasonable interpretation and that is death?
A: Not if you use the context of the sentence, two sentences above
it, where it says downfall. Downfall is an adjective of demise, and it’s
specifically used when you’re talking about some political corruption or
government, or office, something in power. So downfall and demise are
adjectives of each other because I use them both in the same paragraph. I
would assume you use that as context.
She clarified on redirect:
Q: Okay. Explain the sentence that begins with I’ll escort you to
your demise.
A: I will escort you to your demise more akin to Malcolm X than
Martin Luther King Jr. I is the subject, escort would be your verb. To your
demise is a prepositional phrase because it starts with to. It can be removed
from the sentence. More akin is a comparative phrase. It cannot be
removed from the sentence. More akin to Malcolm X talks about how I
will escort you, not your demise.
{¶ 18} After the presentation of evidence and closing arguments, the trial court
found Ford guilty of the four counts of intimidation. At the sentencing hearing, it
sentenced Ford to probation.
11.
II. Assignments of Error
{¶ 19} Ford timely appeals her judgment of conviction, asserting two assignments
of error for review:
1. Ford’s conviction for intimidation under R.C. 2921.03 was based
on legally insufficient evidence because the allegedly criminal conduct at
issue—Ford posting on Facebook, in the context of a political dispute with
certain officials of the City of Norwalk, that she will “escort [these
officials] to [their] demise in a manner more akin to Malcolm X than
Martin Luther King Jr.”—is constitutionally protected speech.
2. In the event that Ford could be found to have waived her First
Amendment-based arguments by having failed to sufficiently raise them at
trial, any such failure resulted from the ineffective assistance of counsel in
violation of the Sixth Amendment, thereby warranting that the convictions
be reversed and vacated.
III. Analysis
{¶ 20} At the outset, the State concedes that Ford properly preserved her First
Amendment argument by raising it (1) in a pretrial motion to dismiss, (2) in her Crim.R.
29 motion for acquittal following the State’s presentation of evidence, and (3) in her posttrial motion for acquittal. This court’s analysis, therefore, will center on whether Ford’s
conviction is based on insufficient evidence as described in Ford’s first assignment of
error.
{¶ 21} When reviewing the sufficiency of the evidence, the relevant inquiry is
“whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
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reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus; State v. Hall, 2026-Ohio-2020, ¶ 31 (6th Dist.).
{¶ 22} Ford was convicted of intimidation under R.C. 2921.03(A), which
provides,
No person, knowingly and by force, by unlawful threat of harm to any
person or property, or by filing, recording, or otherwise using a materially
false or fraudulent writing with malicious purpose, in bad faith, or in a
wanton or reckless manner, shall attempt to influence, intimidate, or hinder
a public servant, a party official, or an attorney or witness involved in a
civil action or proceeding in the discharge of the person’s (sic) the duties of
the public servant, party official, attorney, or witness.
{¶ 23} At issue is whether Ford’s September 22, 2023 Facebook post constituted
an “unlawful threat of harm.” An “unlawful threat of harm” exists “only when the very
making of the threat is itself unlawful because it violates established criminal or civil
law.” State v. Cress, 2006-Ohio-6501, ¶ 42. In this case, the State argues that her
Facebook post was an unlawful threat of physical harm. Ford maintains, on the other
hand, that the Facebook post is not an unlawful threat of physical harm, but is instead
protected political speech under the First Amendment to the United States Constitution.
{¶ 24} “The First Amendment, applicable to the States through the Fourteenth
Amendment, provides that ‘Congress shall make no law . . . abridging the freedom of
speech.’” Virginia v. Black, 538 U.S. 343, 358 (2003). “If there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or
13.
disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989); Black at 358. “The United
States Supreme Court has said that ‘“speech on public issues occupies the highest rung of
the hierarchy of First Amendment values, and is entitled to special protection.”’” Bey v.
Rasawehr, 2020-Ohio-3301, ¶ 58, quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011),
quoting Connick v. Myers, 461 U.S. 138, 145 (1983). Furthermore, “[s]uch speech is
protected by the First Amendment even though the speaker or writer was motivated by
hatred or ill-will.” Id., citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988).
{¶ 25} “The protections afforded by the First Amendment, however, are not
absolute, and we have long recognized that the government may regulate certain
categories of expression consistent with the Constitution.” Black at 358. One of those
categories is “true threats.” Id. at 359. “‘True threats’ encompass those statements where
the speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.” Id. “The speaker
need not actually intend to carry out the threat. Rather, a prohibition on true threats
‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear
engenders,’ in addition to protecting people ‘from the possibility that the threatened
violence will occur.’” Id. at 359-360. “Intimidation in the constitutionally proscribable
sense of the word is a type of true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear of bodily harm or death.”
Id. at 360.
14.
{¶ 26} Whether speech constitutes a true threat is typically a question for the trier
of fact. Hess v. Oakland Cty., Michigan, 174 F.4th 981, 993 (6th Cir. 2026). “But as in
any setting, courts retain the power to remove a true-threat question from the jury’s
consideration, or override its verdict, if the evidence shows that the speech was protected
as a matter of law.” Id., citing Watts v. United States, 394 U.S. 705, 706 (1969).
{¶ 27} The Sixth Circuit has recognized many factors that are relevant when
considering whether a statement is a true threat:
The statement’s context, express or conditional nature, and the listeners’
reactions matter. . . . Although the “listener’s subjective fear alone is not
enough to turn an innocuous statement into a true threat,” a statement is
more likely to count as a true threat if the listener is “alarmed enough” to
immediately alert authorities. Thames [v. City of Westland], 796 Fed.Appx.
[251, 262] (emphasis removed). Other variables include the statement’s
specificity, audience (intended or otherwise), location, and tone, in addition
to any history of prior “conflict between the speaker and the statement’s
target. . . . The target of the speech need not hear it first-hand for the
statement to count as a true threat . . . but distance between the speaker and
recipient may tend to diminish a statement’s threatening nature . . ..
(Internal citations omitted for readability). Hess at 994.
{¶ 28} In this case, when read in context, Ford’s September 22, 2023 Facebook
post does not constitute a true threat as a matter of law. The critical sentence in Ford’s
post is “I will escort you to your demise in a manner more akin to Malcolm X than
Martin Luther King Jr.” The parties dispute what the reference to Malcolm X and Martin
Luther King Jr. modifies. Ford argues that it modifies the manner in which she will
15.
escort the named officials. The State, on the other hand, argues that it modifies the
officials’ demise. The State’s position is not a reasonable interpretation of Ford’s post.
{¶ 29} The State maintains that Ford’s choice of comparators demonstrates that
she was not conveying a threat of mere political downfall, but rather she intended to
convey a threat of actual violence. It reaches this conclusion by emphasizing that Ford
did not name disgraced politicians who were forced out of office, but instead referenced
two leaders who were murdered. Thus, the State posits that when she used the word
“demise,” she meant the officials’ physical death.
{¶ 30} The State’s interpretation, however, ignores that Ford drew a distinction
between Malcolm X and Martin Luther King Jr. In her post, Ford did not say that she
would escort the officials to their demise in the same manner as Malcolm X and Martin
Luther King Jr., which would highlight the similarities between the two. Rather, she
focused on their dissimilarities, saying that she would escort the officials to their demise
in a manner more like Malcolm X and less like Martin Luther King Jr. Because Ford
distinguished the two, it is unreasonable to interpret her use of “demise” as referring to
the similarity that both were murdered.
{¶ 31} Notably, in the trial court, the State elicited testimony that attempted to
draw a distinction between the manner in which Malcolm X and Martin Luther King Jr.
were killed, with the former being shot 21 times and the latter being shot only once. The
State does not continue this argument on appeal, and for good reason. Aside from
16.
constituting a relatively arcane bit of historical trivia, this distinction requires one to
deduce a threat not from the fact that both men were killed, but from the fact that one was
arguably more violently killed. Nothing else in the record, however, supports that Ford
possessed this level of bloodlust.
{¶ 32} Instead, the record supports the much more straightforward interpretation
that Ford was referring to the differences in Malcolm X’s and Martin Luther King Jr.’s
advocacy styles when describing how she would escort the officials to their political
demise. Specifically, that she would pursue the more aggressive and confrontational
style commonly ascribed to Malcolm X as opposed to the more civil and passive style
commonly ascribed to Martin Luther King Jr.
{¶ 33} This interpretation is consistent with the remainder of Ford’s September 22,
2023 post, in which she does not mention physical violence but focuses on reputational
harm. For example, she threatens to “crumble the reputation every single person who
stands in way of justice” and “drag [them] through the court of public opinion.” She also
says that she will “drag out” every corrupt deed. And she exhorts the officials to “Do
your jobs! Do what is just and right! Follow the laws!”, and if they do not, she will “tell
everytime [they] don’t!” Finally, she closes by alluding to running for mayor in the
future. All of this demonstrates that the context of Ford’s post is entirely political.
{¶ 34} Furthermore, nothing in the broader context in which the post was made
supports the conclusion that she was threatening physical harm. Ford has no history of
17.
violence or criminal activity. O’Hara acknowledged that Ford has never made any other
threats towards him. She has known and interacted with Light for many years. After she
was charged with falsification, she threatened to sue everyone into bankruptcy, not to
physically harm them. And perhaps most tellingly, when Ford perceives injustice, her
pattern has been to report the matter to law enforcement, and if that does not achieve the
result she wants, she publicizes it on the internet. Her September 22, 2023 threat to
expose the allegedly corrupt deeds is entirely consistent with this. Threatening to commit
physical violence is not.
{¶ 35} The State in its appellate brief compares the present matter to that in State
v. Baumgartner, 2009-Ohio-624 (8th Dist.). In that case, Baumgartner was convicted of
intimidation for posting a modified version of a rap song on the internet, in which she
“intimidated the [victims] by referencing domestic violence in the [victims’] household in
the same breath as children services.” Id. at ¶ 8. On appeal, the Eighth District rejected
Baumgartner’s claim that the altered rap lyrics were not a true threat but were artistic
expressions protected by the First Amendment. Id. at ¶ 50-53. In concluding that the
lyrics were a true threat, the Eighth District reasoned that “the critical question is whether
the victim subjectively believed at the time of the offense that the offender would cause
serious physical harm,” and that the victims’ subjective belief of physical harm was
demonstrated by their flight from Ohio after the rap lyrics were posted on the internet.
Id. at ¶ 52.
18.
{¶ 36} This court does not find Baumgartner persuasive. First, Baumgartner does
not identify the modified rap lyrics. Thus, this court has nothing with which to compare
Ford’s statement that she would escort the officials to their demise in a manner more akin
to Malcolm X than Martin Luther King Jr. Second, Baumgartner relies exclusively on
the hearer’s subjective belief in whether the statement was a threat. While the hearer’s
subjective belief is a relevant consideration, it alone “is not enough to turn an innocuous
statement into a true threat (via a ‘heckler’s veto’).” Thames v. City of Westland, 796
Fed.Appx. 251, 262 (6th Cir. 2019). In this case, as described above, the officials’
subjective interpretation that Ford threatened actual physical harm is unreasonable.
Baumgartner is therefore distinguishable.
{¶ 37} Finally, this court notes that both parties cite the United States Supreme
Court’s decision in Counterman v. Colorado, 600 US. 66 (2023), in which the court held
that a statute criminalizing speech that constitutes a true threat must require a mens rea of
at least recklessness. Id. at 69. In that case, the Colorado statute at issue required only
that the speech be objectively threatening in that it “would cause a reasonable person to
suffer serious emotional distress and does cause that person . . . to suffer serious
emotional distress.” Id. at syllabus. The Supreme Court held that an objectively
threatening statement by itself was insufficient to support a conviction, and that the First
Amendment requires “proof that the defendant had some subjective understanding of the
threatening nature of his statements.” Id. at 69. It determined that the appropriate
19.
standard for that subjective understanding was recklessness, which “offers ‘enough
“breathing space” for protected speech,’ without sacrificing too many of the benefits of
enforcing laws against true threats.” Id. at 82, quoting Elonis v. U.S., 575 U.S. 723, 748
(Alito, J., concurring in part and dissenting in part). In this case, however, the
intimidation statute under which Ford was convicted requires the higher mens rea
standard of knowingly. See R.C. 2921.03. Counterman, therefore, is not implicated.
{¶ 38} In sum, the First Amendment protects “political hyperbole” that “‘may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.’” Watts v. U.S., 394 U.S. 705, 708 (1969), quoting New York Times Co.
v. Sullivan, 376 U.S. 254, 270 (1964) (In Watts, the United States Supreme Court held
that the defendant’s statement, “If they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.” was not a true threat but was “a kind of very crude offensive
method of stating a political opposition to the President.”). Ford’s September 22, 2023
Facebook post, when considering the context in which it was made, is such an example of
that type of political hyperbole. This court holds that under the circumstances it was not
a true threat as a matter of law.
{¶ 39} Accordingly, because Ford’s post constitutes protected speech under the
First Amendment, no rational trier of fact could have found that the State proved the
essential element of an unlawful threat of harm beyond a reasonable doubt. Ford’s
20.
convictions for intimidation, therefore, are based upon insufficient evidence. Her first
assignment of error is well-taken.
{¶ 40} Ford’s second assignment of error is moot.
IV. Conclusion
{¶ 41} For the foregoing reasons, the judgment of the Erie County Court of
Common Pleas is reversed and Ford’s convictions for intimidation are vacated. The State
is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed
and vacated.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
Thomas J. Osowik, P.J.
JUDGE
Gene A. Zmuda, J.
JUDGE
Charles E. Sulek, J.
CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
21.