City’s ethnic intimidation law faces test

A neighborhood disagreement on a Near East Side street became personal when a white man allegedly referred to a black man by the N-word and told him to “go back to the plantation.”

That language, and the aggressive way in which Sean C. Fabich is accused of speaking it, led Columbus police to file an ethnic-intimidation charge against him after the Nov. 1 incident.

Fabich, 47, plans to take the misdemeanor case to

trial in Franklin County Municipal Court, said his attorney, Jeremy Dodgion, who expects to challenge the constitutionality of the city’s ethnic-intimidation law.

“We would argue that it’s overly broad and a violation of the First Amendment,” Dodgion said.

Just last week, Jeffrey Whitman of Powell was placed on probation for one year, with a six-month jail sentence hanging over his head, after he pleaded guilty in Municipal Court to ethnic intimidation for repeatedly directing a racial slur at a black man during a road-rage incident.

The victim, Jeffrey Lovett, 33, used his cellphone to capture video of the exchange as the 59-year-old Whitman sat in a van blocking Lovett’s driveway on the North Side.

An ethnic-intimidation charge is rarely filed in Franklin County, largely because it can be difficult to prove beyond a reasonable doubt, said Columbus City Attorney Zach Klein.

“Someone may say something racist or homophobic during a crime, but that doesn’t mean it was the motive for the crime,” he said.

In the past 10 years, the charge has been filed against 17 people in the county, according to records provided by the Municipal Court clerk’s office. The Columbus ordinance was used in 14 of the cases; the three other cases were filed under state law.

Mark Collins, Whitman’s attorney, said the charge is easier to prove under the city law, which is broader than the state’s.

Under the Columbus code, the offenses of disorderly conduct and criminal mischief can lead to an ethnicintimidation charge if the defendant is motivated by the victim’s race, sex, sexual orientation, gender identity, religion or national origin.

Under state law, the prejudice or intolerance must be the motivation for a crime such as aggravated menacing, menacing or criminal damaging. And the state law does not include protections for sexual orientation or gender identification.

Daniel Tokaji, a First Amendment expert and professor at Ohio State University’s Moritz College of Law, reviewed the city’s ordinance in response to questions from The Dispatch and found at least one area that he called “constitutionally problematic.”

“After reading the ethnic intimidation statute in conjunction with the disorderly conduct section ... I’m troubled,” he said.

One prong of the city’s disorderly conduct law refers to “making unreasonable noise or offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person.”

Tokaji said that part of the law “is so subjective, so vague ... it potentially criminalizes pure speech.”

Franklin County Prosecutor Ron O’brien, who was the Columbus city attorney when the ordinance was created, said he is confident the law is constitutional, but he added that the charge cannot be brought in a case in which someone is merely annoyed by another person’s language.

Whitman was one of six people charged with ethnic intimidation in Franklin County last year, the most in the past decade. Two of the cases are pending. Of the four cases that have been resolved, two resulted in guilty pleas to ethnic intimidation, including Whitman’s. In the other two cases, the ethnic-intimidation charge was dismissed in exchange for a guilty plea to another offense.

Klein, whose first year as city attorney was 2018, said the increase in filings wasn’t the result of any effort by his office to more aggressively prosecute such cases. He said it’s more likely related to what he sees as a “national uptick” in expressions of hostility toward people because of their race, nationality, gender or religion.

“With what’s coming out of Washington, D.C., people think they have license to take those feelings out on others,” he said.

Klein said his office won’t hesitate to pursue ethnic-intimidation charges whenever appropriate.

“Columbus is an open and accepting place,” he said. “When we have evidence of someone violating this law, we take it very seriously. Under no circumstances will we tolerate this type of behavior.”