Philosopy, Law and Politics

A Return to Etiquette and Civility, Revisited. Or, Do Hate Speech Laws Conquer Hate Crimes?

In America, should we accept as expressions of public opinion speech and conduct that defy our traditions of etiquette and civility?  Is civility a word with a definition that is, or should be, coextensive with the public peace and order. In the future, perhaps we could encourage thought and discussion about our world in a kind and peaceful manner by requiring every licensed driver in the State of Ohio be automatically registered to vote upon mere renewal of the State issued drivers license. But, until such legislation, we might consider the propriety of the exercise of prosecutorial discretion in regulating hateful speech and conduct under Ohio law. At a minimum, State law, and eventually Federal, should be invoked to criminalize speech, and similarly expressive conduct, either intended, or likely, to evoke a harmful or violent response from nearby persons, in general, or one given person to whom a hateful or derogatory comment is directed.

Under longstanding Ohio judicial precedent, a criminal charge may be brought against a person for words, even by virtue of their content. Words may be deemed “likely, by their very utterance, to … invoke the average person to an immediate retaliatory breach of the peace.” State v. Turner, 2007 Ohio 5449, ¶ 109 (Ct. App. 8th Dist. 2007)(citing, State v. Hoffman, 57 Ohio St. 2d 12, at ¶ 1 (1979). In offering this view of the First Amendment, the Court in Turner, was commenting upon Ohio Revised Code § 2917.11(A), effective Jan. 25, 2002, which was enacted after the statements of the Ohio Supreme Court in Hoffman.  The Court in Turner also concluded that such speech, regardless of content, had been previously found to be “fighting words” under Ohio law.  Turner, 2007 Ohio 5449, at ¶ 109.

Since 2002, Ohio courts, State and Federal, have not been asked frequently to rule upon the manner in which Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.” In the advent of the many complicated political and social discussions during this time in American history, we should look to the long extant legal provisions that have been reviewed across the country.   § 2917.11 is such a statute. For, this law expressly deems actus reus both: (1) “offensively coarse utterance [and] gesture[,]” as well as (2) “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3).  Chapter 2917 of the Ohio Revised Code designates this criminal law “Disorderly Conduct,” as one of many “Offenses Against the Public Peace.”

As citizens in our communities in the State of Ohio, the recognition and proscription of fighting words and hate speech derive from the foundations of our democracy, and their requisite respect for the individual.  Our laws against speech and gestures that invoke either a fear of violence, violent urges, or violence itself deter those inclined to so act. Even more importantly, these criminal laws serve as a didactic to instill a code of conduct we rely upon in a community in which the people govern. Social activity and public debate should not provoke violence. We should, instead, look to partisan politics and the creation of third parties in our traditional two-party system, as well as the judicial third branch of government for adversarial resolution of disputes by courts and arbitrators.

Though the United States separated itself from England, our law owes much to the earlier enacted hate speech law in the United Kingdom, Public Order Act 1986, Chapter 64, Part I, Section 4, as amended ( In its broadest provision, this law prohibits acts “whereby [a] person is likely to believe that … violence would be used or it is likely that …. violence will be provoked.” This does not impose an element of criminal intent upon the actor. Moreover, it also declares a person guilty who “distributes or displays to another person any writing [or] sign … threatening, abusive or insulting.” Id.

This British law would meet Justice Scalia’s requirements for constitutional restrictions upon speech in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Essentially, R.A.V. prohibits restrictions upon speech and conduct which treat speech on one topic or within the one category differently, by virtue of viewpoint. In its Syllabus, R.A.V. states:

The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional, because it imposes special prohibitions on those speakers who express views on the disfavored subjects of “race, color, creed, religion or gender.” At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation, the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing “fighting words” that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but not by their opponents. St. Paul’s desire to communicate to minority groups that it does not condone the “group hatred” of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393.

505 U.S. at 378.  And, the municipal ordinance at issue in R.A.V. proscribed conduct that “one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’” Id. Arguably, this imposes a criminal penalty without a requirement of criminal intent.

Both the UK statue and R.C. § 2917.11 prohibit the act of improper speech or conduct, in itself, regardless of intent or an effect of actually producing a violent response. This is in the nature of a balancing of the interests of the public good in the guarantee of our right to free speech versus the proper regulation of speech and conduct harmful to the public good and the public peace

Speech likely to incite violence may possess noteworthy ideas we seek to have fully presented before us. And, we may not censor speech or conduct potentially deemed fighting words or acts because they exhibit a certain content or view. Rather, to be hate speech, the words, gestures or conduct used may not be found to be essential to the ideas sought to be conveyed. Instead, the words or conduct must go beyond free expression to communicate via a means not proper for civil discussion within a representative democracy of a self-governing people.  R.A.V., 505 U.S., at 385.

In Ohio Revised Code § 2917.11, we do not justify the criminalization of acts and speech with reference to their viewpoint. Turner; Hoffman; State v. Cunningham, 2006 Ohio 6373, at ¶ 22 (Ct. App. 10th Dist. 2006); accord, R.A.V.,  505 U.S., at 389. In the thought of Justice White offered in his Concurring Opinion in R.A.V.:

Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky, 315 U.S. at 572. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. See ante at 387. 


In light of the many creative legislative proposals in Ohio regarding Sanctuary State and Sanctuary City status, as well as the mandatory voter registration of licensed drivers, would Ohio political subdivisions benefit from more stringent fighting word or hate speech provisions. Such local laws could be tailored to their unique popular demographics, topics in discussion, and independent concerns of State and Federal law.

The First Amendment exists to ensure that when the popular majority imposes its lawful preferences as to the obligatory manner of public debate, and specifies and restricts certain categories of speech, it does not penalize the speech or conduct it specifies and restricts by topic content or viewpoint. We must enact our restrictions and adjudicate each defendant presented as possibly guilty with the requisite sensibilities of other than the hateful, resentful and tyrannous majority.

Lori Gayle Nuckolls

Philosophy, Law and Politics

Law Students Before the Judiciary, Revisited

On Christmas Eve, last, I asked if the Rules formally adopted by the Ohio Supreme Court to govern the Ohio Bar might be amended to improve the educational opportunities of Ohio’s law students prior to their graduation. Supreme Court Rules for the Government of the Bar of Ohio, R. II., “Limited Practice of Law by a Legal Intern.”   Perhaps, all Ohio law students should be permitted to share in providing formal legal representation to clients when mentored by a supervising attorney. This is something Cincinnati’s current Mayor John Cranley did as a student at Harvard Law School. He participated in a student practitioner program in the Massachusetts court system as a member of the Harvard Legal Aid Bureau, as I had done myself many years before. The Supreme Judicial Court of Massachusetts permits Second Year law students to engage in supervised civil representation, and Third Year law students to engage in both supervised civil and criminal representation. S.J.C. Rule 303.

Currently, when mentored by an Ohio attorney, the Ohio Supreme Court permits Ohio law students to act as student practitioner legal interns in both civil and criminal matters, and before courts, administrative boards and government agencies. Gov. Bar R. II. Sec. 5.   Yet, the Ohio Supreme Court only permits law student practitioners to do so in their Third Year of law school. Gov. Bar R. II. Sec. 2.

Support truly exists for permitting Ohio law students to begin student legal internships in their Second, or even First, Year of law school. Ohio’s law students are usually employed part time while full time law students, as law clerks in law firms, corporations, governmental agencies, as well as in the offices of State and Federal partisan elected officials. Student practitioner duties would not diminish attention given legal studies.

Paid part time legal employment supplements participation in law school Moot Court and Clinical programs. Many students engage in law related employment before entering law school. Both the practice customs and economic structure of Ohio’s legal community would encourage the Ohio Supreme Court to expand upon its own court rules, and those of other States, to permit student practitioners to provide formal legal representation to clients. Currently, Ohio’s Third Year law students may only represent the financially needy and governmental entities, though in both civil and criminal matters.  Gov. Bar R. II. Sec. 5.

If the clear majority of Ohio law students currently work in a for profit or personally interested capacity during law school, for law firms, corporations and partisan elected officials, why would an ethical concern arise if their current for profit or personally interested client work product were accorded the formal sanctioning of Rule II legal intern status? The for profit or partisan attorneys by whom they are currently employed are subject to the same professional ethical duties as are the government and public interest attorneys presently sanctioned by Rule II. The due and proper incentive of government should enable students to derive the most from the structure, both formal and informal, of their academic environment during their tenure as students.

We should agree that if law students maintain employment begun before enrollment through their First Year, law school studies would not suffer if they were given Rule II student practitioner privileges for this, or similar, work during First Year. Rather, our theories of client interest and adversarial practice, as the guiding principles of our judicial system, indicate that formal legal representation during law school enhances understanding of both law school studies and substantive for profit work product.

Acknowledgement by the Ohio Supreme Court of the substantive, for profit legal work currently incumbent upon law students in the private sector would enhance the depth of their legal study, and they would then more greatly succeed upon graduation into private practice.  In for profit law clerk employment, law students research and draft, with the obligatory duty incumbent upon a practitioner, as do  the current Rule II law students with governmental and public interest entities.  The formal right to appear in a representative capacity, in deference to a mentoring attorney, allows a law student to fully understand the burden of client representation regardless of the economic status of the client.

Law students rely upon law school course work and law clerk employment to develop required skills in legal methods, specifically, analyzing judicial opinions, conducting Federal and State legislative histories, and the comparative analysis of both primary and secondary legal sources. With the addition of formal practice during First and or Second Year, Ohio law students would make a more informed choice of practice areas, and more readily begin their practice after graduation. Even our best known legal practitioners in Ohio, and we need not name names, would, I am sure, concede that, as graduates of Ohio law schools, they would have truly benefited from such an Hohfeldian right and privilege.

Lori Gayle Nuckolls

Philosophy, Law and Politics

We Should Share Our Political Faith

This November, we determine our choices for government. And, we should look to the momentous advances in American society over the past few decades to guide the decisions we make as to our State, County, City, Town, and Village governments. In the minds of many, the great English philosopher John Locke expressed the concern that, without the ownership of property, a member of society does not live with justice and fairness. One would imagine that this would include both the due and proper definition of property, and its enforcement. Thus, justice and freedom require that one first have a government upon which one may rely in order to possess and own property.

Americans live in the hypothetical, as to our right, power, and privilege of self-governance. Our personal decisions and life choices are individual, yet based upon a common understanding about the world in which we live. We each possess a theme, an abstract view of ourselves, our family and our community. This theme guides our particular opinions, both negative and positive. It constitutes our political faith.

So, how do we achieve political faith? Our individual tenets of political faith are derived from our social customs, and our understanding of how we relate to society and our community. All of our governmental leaders: national, state and local, are empowered to invoke the authority of government. And, in doing so, they should look, collectively, to our individual tenets of political faith. Thereby, they enact the federal laws and regulations, state statutes, and local ordinances that create and enforce our rights of property. This might constitute a Lockean sense of justice, for our political beliefs and opinions create and provide the property we bequeath to our children, and how we participate generationally in our country.

In evaluating candidates and referenda this election season, we should ask certain questions. First, how do I view the relationship between the candidates offered for my political subdivision and our American governing officials? Second, in what manner do the offered candidates express a view on the ownership and development of my property rights? Third, do the offered candidates look to our nation’s reliance upon principles of capitalism and the marketplace to enhance and secure my property and prosperity, and that of my political subdivision? Fourth, which of the offered candidates for my political subdivision may best collaborate with the officials of our State and Federal governments to so revise and enforce definitions of property?

In asking these questions, so that we may participate and comment upon society and government, we must each individually have a sense of our own property. We could look to a sense of the traditional Anglo-American common law definition of property as derived from John Locke, namely, that individual property rights are created from our individual investment of labor in the act of property creation. In this sense, how is our labor to be defined and described, and what is the property it creates? Our property rights as individuals determine our political and social power.

We must each provide a description of our property, both to share amongst ourselves in the course of ordinary conversation, and in offering our comments to candidates and elected officials.  Our definition of our property is determined by what we know and how we know. As Locke might say, these rights are based upon each individual’s perfect control and dominion in right of ownership of property. As to property, this would be a tenet of political faith.

Lori Gayle Nuckolls

Philosophy, Law and Politics

Should the Federal Government Pay Tuition for Higher Education to All for All?

Admission to American colleges and graduate schools is duly regulated by several nongovernmental organizations, notably, entities such as The College Board, the Educational Testing Service and the American Bar Association. And, our secondary and elementary schools are similarly reviewed and ranked as to merit, both within political subdivisions and across the nation, by educators, journalists and governing officials.

Would an assumption of tuition payments for all American college and graduate programs by the Federal government undermine current private governance by those currently governing and affiliated with America’s private schools of higher education?  Would it undermine the aura and efficacy of local history and culture within our publicly owned and governed colleges and universities?

Perhaps, the objectivity of the nongovernmental organizations responsible for admissions testing and school ranking in American higher education already provides and requires obligatory accuracy and fairness as to merit and quality across the nation in a way that state, local and private control of funding currently may not affect. Private and state decision-making in higher education must currently yield to duly enacted legislation and promulgated regulation, and a replacement of the monetary source for tuition, from the student, parent and or school to the Federal government, could not transcend present governmental procedures. Our schools would, in every respect, remain fully self-governing and retain due and fair competition.

The question then is whether Federal tuition runs only to the public good and public interest, and if the American economy can afford to pay the tuition of all college and university students? There seems to currently be neither an economic necessity nor an economic value in requiring students and parents, as the recipients of the goods and services of American colleges and universities, to make the tuition payments, when the ultimate beneficiary of educated Americans is America. Educated Americans determine America’s reputation and goodwill and the relative efficacy and value of its democratic government.  In doing so, the American public receives goods and services provided by those who do not earn the true value of the service they provide over the course of their careers.

Salaries of ordinary citizens and residents barely pay living expenses, no less do these salaries provide for college tuition. And, it is hoped that American families contain more than one child. College graduates and licensed professionals earn less than professional athletes and corporate executives. Our governing officials, doctors and lawyers provide more to keep America sane and rational than do CEOs, pitchers and quarterbacks. How can CEOs and athletes work day-to-day without professionals and government officials overhead. And, non-managerial employees and traditional small business men and women, who would receive college tuition for their children, would still benefit from American capitalism. Students and graduates of the long existing 2-year colleges, who receive learning in the technical arts and vocations, would certainly provide more to the public good as interns during school years in subjects related to their studies than as employees of those within their community who offer the highest pay in part-time employment regardless of the task.

A parent’s future payment of tuition to American colleges and universities is a for-profit incentive in the American and international marketplace. Currently, parents look to a child’s academic achievement, and the competitiveness of admission to America’s colleges and graduate schools, as an incentive for business success. Federal tuition would lessen stresses unrelated to achievement, regardless of parental income. And, the once thought long entrenched competitive advantage of students attending private elementary and secondary schools, is, now, rarely a concern, for advances in teaching, curriculum and college recruiting have provided economies of scale within local governing political subdivisions, and create a just capitalism in education.

If America’s professionals and college graduates are deemed, as our governing principles intend, to grow and raise children who make the most of our academic institutions, how do these professionals provide for their children’s tuition, even in two professional households, and even if with only one child? How does such a family pay for its children’s college and graduate school attendance, even if they are, themselves, among the American socio-economic elite? And, are not these very children of American professionals and college graduates socially obligated, themselves, by our social contract as citizens and residents, to not squander what has been provided to them by their parents and secondary school educators?

The centuries-old legal principle of discerning the merit and value of prospective legal and or governmental reform, as I profess to personally coin and denominate: “experimentation among the States,” may be in order. For, it provides that, if not all Americans are ready for a proposed reform, one State, or a few, in the Federal Union might enact a variation upon the proposed reform, for review and evaluation by citizens and judges. Today, governmental payment of tuition to public colleges and universities, especially as recently announced in the State of New York, may provide a basis for Federal reform, especially by our current President and noted businessman Donald Trump. For, President Trump professes a belief in the economic competition, efficiency and small government that Federal tuition payments to all American schools of higher education would provide. This may be achieved by President Trump from now through the inauguration of his successor in 2025!

Lori Gayle Nuckolls

Philosophy, Law and Politics

Are Our Politics Determined by Money or Self-Reflection?

As someone with a theoretical, rather than a practical understanding of our political system, I ask how we reconcile the popular view that money is ever present in the Republican party with the popular view that money dominates both the Democratic and Republican political parties? Some believe that only with the overturning of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and the enactment of new Federal campaign contribution limits on individuals and corporate entities, will American government be accountable to the electorate. The influence of the wealthy does dominate and determine our elections. Yet, there are large donors on both sides who are benevolent and offer a view of the common good in which they sincerely believe. And, some on both sides are less sincere and more self-interested.

Journalists covering campaigns do bring controversies to the public regarding those who are influential by virtue of political power derived from financial assets and not a given expertise or experience. So, the public is aware that the views of the majority do not determine elections, and that voters defer to those with known views who they feel have a better vantage point from which to decide what is best for the country. Even in the American history of not long ago, the public conceded to the Railroad Tycoons and the FDRs with an appreciative deference, though a resentment resulting from socio-economic status. Since that time, the majority has sought to cast off the yoke of paternalism. Our society possesses a more equal sense of opportunity, as well as of access to information and knowledge.

In America today, there is a greater sense of adequate materialism and a secure safety net. Yet, are the American working and middle classes of today more familiar with the profound blessings and power of the highly educated who have an understanding and role in society which they will never achieve themselves? They do not truly have economic want and they possess opportunities for their children of which they could not dream. Is their resentment, though existing without want, producing a disrespect for hierarchies and authorities generally?

Do those of the working and middle classes now resent the very academic institutions which produced their individual freedoms and the ability to exercise them? Are they not voting because they feel truly unable to duly consider the issues of government for want of formal education in the very complex and specialized subject matters citizens consider when evaluating candidates and reaching decisions on issues of referendum? As they do not participate, they cease to have a vested interest in the growth and development of their communities, commerce suffers, new residents are sparse and the communities decline.

In “off-year” elections, when voters are not moved by the issues of a Presidential campaign, few vote. In 2014, 40% of those eligible to vote in Ohio voted. This is local government by an interested few. Would more have a sense of personal interest in government if we brought before them the ideals and lessons on the manner in which they can affect government and their communities? With a sense of personal efficacy, would they then appreciate what they have amassed, can amass and what their children can amass.?

Even if new campaign contribution regulations are elusive in the anticipated future, I think that perhaps a sense of the efficacy of individual participation in politics might be achieved if we look to the basics of the American philosophy of government and encourage people to ask those offering ideas and public policies to explain how their suggestions are premised upon and strive to achieve our fundamental principles. To do this, we must frequently discuss the ideology of American representative democracy and ensure that all citizens and residents of our country, regardless of age, may look within and develop a sense of self-governance that believes in America. This November, and in the interim days, will you vote and or express your views and opinions?

Lori Gayle Nuckolls

Philosophy, Law and Politics

Is a Failure to Prosecute Utterances of “Hate Speech” and “Fighting Words” a Violation of Due Process by Ohio County Prosecutors in Not Protecting the Victim’s Constitutional Rights of Liberty, Privacy and Personhood?

Under Ohio law, Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.”  This statute expressly prescribes “offensively coarse utterance [and] gesture[,]” and  “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3).  This law lies within criminal provisions of the Ohio Revised Code denominated “Disorderly Conduct,” as one of many “Offenses Against the Public Peace” of Chapter 2917. Has any duly elected Ohio County Prosecutor recently invoked this provision?

How does the community resident evaluate whether the absence of arrest and prosecution in his or her Ohio County is a proper exercise of prosecutorial discretion in regulating conduct under Ohio law? In what other ways are the constitutionally protected, basic and fundamental rights of Ohio citizens and residents to privacy and personhood, as incumbent within our essential rights of liberty and freedom, protected from independent, idiosyncratic, and isolated acts of speech contrary to personal integrity?

Ohio Revised Code § 2917.11 should be used by Ohio County Prosecutors to guide popular conduct, as a didactic tool. Section 2917.11 deters visceral, unkind speech directed, especially, to a person the potential perpetrator does not even know. And, importantly, this law looks to proscribe harmful words spoken when no logical rationale exists for devolving into such conduct when long historically permitted forms of expression and advocacy exist.

If traditional forms of expression, speech and  participatory politics are possible, conduct subject to prosecution under Ohio Revised Code § 2917.17 only evokes either fear harmful to one’s sense of personhood or, more difficultly, fear expressed in the form of a harmful or violent response from the victim of the unkind speech. Do we instead prosecute the victim for engaging in an improper response to unprovoked hate speech and let the utterer of fighting words go free? Why is the fearful, dependent spouse convicted of homicide for shooting a long abusive, domineering spouse while asleep and unlikely to rise up in confrontation? When is self-defense illegal?

Is an Ohio County Prosecutor’s  failure to prosecute hate speech and fighting words an unconstitutional disregard for the right of every individual to liberty,  privacy and personal integrity, all long respected by the U.S. Supreme Court? Should the Ohio County Prosecutor, as a state actor, be subject to civil action, under Section 1983 of  Title 42 of the U.S. Code, for such a failure to prosecute? The right to Due Process includes one’s liberty interests, and the duty of the Ohio County Prosecutor to protect the liberty interests of Ohio citizens and residents subject to personally intrusive fighting words and hate speech by prosecuting those engaging in hateful speech.  Does Section 1983 include a substantive due process right to challenge in Federal Court an Ohio County Prosecutor for the absence of prosecution of fighting words perpetrators under Ohio law?

The consequences arising from an Ohio County Prosecutor’s decision to not prosecute acts criminal under Ohio Revised Code § 2917.11 are self-defining and derive inherently from the Anglo-American Common Law giving rise to the U.S. Constitution. A want of review, regulation and criminalization results in a perpetuation and acculturation of illegal intent and conduct within our country. American criminal law has many purposes, including, deterrence, rehabilitation, restitution and retribution. Laws exist on the “statute books” for a reason. These are the reasons for Ohio Revised Code § 2917.11 .

How do we begin? How does the first individual abused as to self and personhood come forward in Federal Court and ask why his or her Ohio County Prosecutor did not seek redress on his or her behalf under expressly worded Ohio Law? Should such prosecution on the individual’s behalf be so permissive, and not a mandatory obligation of the duly ethical Ohio County Prosecutor under the professional rules and judicial decisions of the Ohio Supreme Court?

Life in our American Republic requires free speech and a sense of participation without fear and without improper inhibition. Justice and fairness in our democracy require that Ohio County Prosecutors act zealously, with best efforts and with a sense of being conservative to the utmost. Non action and a failure to prosecute potential perpetrators under enacted legislation is not conservative, it is the opposite. Prosecutorial discretion is both permissive and mandatory. Where do our State and Federal Courts draw the line?

In a democracy, free speech is a property right. It is not to only be accorded governmental protection as a permissive privilege.  In America, a citizen or resident should not feel as if he or she must ask permission of an equal to speak or live, for fear of becoming a victim of hostile words. He or she should freely speak. If the equal is inhibiting in a manner contrary to § 2917.11, the Ohio County Prosecutor should act.

Lori Gayle Nuckolls


Philosophy, Law and Politics

America Relies Upon a Learned and Informed Public

In the United States, as a country of a majority population that is not indigenous to its North American soil, how do we reconcile nationalism and democracy? As a community of diverse ethnic origins and heritages, diverse faiths, and diverse periods of time resident within the county, can an existence of a nation-state community ever be achieved? Does the theory of the “melting pot” of an immigrant nation undo properly existing cultural lines of identity that are distinct, have merit and are centuries old?

We should encourage a community diverse in cultural identity that lives under the governing principles of American democracy: equality, freedom, and justice. In America, its people have freely chosen to reside under America’s governing principles. Citizenship and the rights of noncitizen residents transcend the diverse cultural identities of national origin. America’s governing principles, constitutions and laws create an equal right to personhood and identity that transcends governmental decision making based upon stereotypes and, especially pejorative, presumptions. The rule of law does not look to one’s culture, ethnicity or religion.

The governing principles of America are created, respected and maintained by an academically learned intelligentsia that exercises a just governance of the majority. An educated public and deference to individual merit and ability are the foundations of a democracy. A state cannot survive without an educated public, whether possessing one or many national identities.

In our world, only representative democracies are viable forms of government. Direct democracies defy the economy of scale required for complex decision making and regulation in the modern age and are not even attempted. Dictatorships, with the veil of legislative and military decision-making especially during the post-colonial period the 1900’s, can neither demand nor evoke a legally compliant population of self-governing individuals.

Without a public that understands the principles of America as a country from a young age of early education between grades 4 to 6, with reaffirmation in between both grades 7 to 9 and grades 10 to 12, our public will not be able to participate as citizens and residents as they engage in specialized careers of science, business and nonpublic policy fields. Thus, all college students should have a required course in the fundamentals of American government.

All in America bear the responsibility of treating all among us as free and equal, with rights and privileges of fairness and justice. Our world is complex, and all Americans must be sufficiently learned to debate and understand America and their own place in the world.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Popular Participation and Involvement is Truly Feasible and Obligatory, Even as to the Most Complex Subject Matters  of State Action

I submitted the Comments below in response to a Notice of  formal Rulemaking by the U.S. Securities and Exchange Commission.


 Lori Gayle Nuckolls, Esq. 

January 22, 2018



Securities and Exchange Commission

100 F Street NE

Washington, DC 20549-1090

Sent via Email to:

Re: File Number S7-09-17


Dear Secretary,

I write with interest in the proposed amendment of 17 C.F.R. Part 200, and the promulgation of regulations, to be codified at 17 C.F.R. §§ 200.80-200.80(g), by the Securities and Exchange Commission (the “SEC” or, alternatively, the “Commission”) regarding agency compliance with the Freedom of Information Act (the “FOIA”), 5 U.S.C §522, as amended by the FOIA Improvement Act of 2016 (the “Improvement Act”), Public Law 114-185, 130 Stat. 538. Please consider this letter submission of comments upon this proposed rule in response to the Commission’s notice of proposed rulemaking and request for comments, as published in the Federal Register, on January 3, 2018, 83 Fed. Reg. 291-302. I support this new rule and I believe it achieves the Commission’s primary objectives as stated in the notice: to make revisions required by the Improvement Act, as well as to amend beyond the scope of the Improvement Act and utilize the necessary amendment to also “clarify, update, and streamline” current SEC regulation. 83 Fed. Reg. 292 (2018).

The supplementary information in the notice of this proposed rule states that the new rule essentially “codifies several existing practices” of the SEC, such as electronic responses to information requests and determination of the fees charged therefor. 83 Fed. Reg. 293 (2018). The SEC is longstanding, truly, in its fair reliance upon the incentives inherent within the American economy, and its principles of capitalism, to utilize advances in science and technology, primarily of the profit based commercial sector and marketplace, to the benefit of not only securities investors but also to the benefit of the nation.

In summary, the proposed rule permits reliance by major corporations upon information technologies currently in use, yet ensures individual requesters that their requests will be neither costly nor burdensome, with codification of a permissive outline of fees to be charged. 83 Fed. Reg. 299 (2018) (to be codified at 17 C.F.R. § 200.80(g)(3)(i)). The proposed rule revises SEC FOIA request and response procedures to require the SEC to make disclosures of information available to the public in both the existing, traditional paper form as well as in various newly available electronic forms. 83 Fed. Reg. 295 (2018) (to be codified at 17 C.F.R. § 200.80(a)). The new rule also provides all with assurances as to issues of privacy and financial records and data. 83 Fed. Reg. 295-296 (2018) (to be codified at 17 C.F.R. §200.80(b), (c)).

As in this instance, the SEC periodically refines and revises its own internal standards and procedures. It relies upon these informal decisions to transform intra-agency custom unto newly promulgated governing regulation. This proposed new rule is such an example. This rule provides user friendly information in which all participants, or, as denominated by the SEC “stakeholders,” in the global economy may share through due compliance, from the small individual investor, to the small, medium and large domestic or multinational business entity.

The new rule expressly acknowledges the various uses made of government information by diverse international market participants.  For, it categorizes and defines anticipated requesters of information, from the individual investor, the commercial entity, the publicly interested academic or scientific organization, to the journalist of the fourth estate. 82 Fed. Reg. 298-301 (2018) (to be codified at 17 C.F.R. §200.80(g)).

The SEC further achieves great clarity for the benefit of the public, as well as for the other branches of government, in that this new rule proposes to also define and explain the services the SEC offers and relies upon in responding to requests for information. 82 Fed. Reg. 298-302 (2018) (to be codified at 17 C.F.R. §200.80(g)). The rule states that a “search” for information maintained by agencies of the Federal government is agency action to determine whether information is relevant to a specific request, contra distinct from a “review” of records maintained by agencies of the Federal government, which is agency action to determine whether specific information requested is exempt from disclosure as required by law. 82 Fed. Reg. 299 (2018) (to be codified at 17 C.F.R. §200.80(g)(2)(vii), (viii)). And, the SEC charges fees for these defined services which vary according to the category of a specific information requester. 82 Fed. Reg. 299-300 (2018) (to be codified at 17 C.F.R. §200.80(g)(3), (4)).

The new rule places the burden of compliance with SEC FOIA request procedures, not upon the requester of information but, rather, upon the SEC itself. In that, the new rule requires that SEC staff members provide individual guidance to requesters, both before the requester initiates a request, and after the SEC acknowledges having received a request. 82 Fed. Reg. 296 (2018) (to be codified at 17 C.F.R. §200.80(b)(3)). The new rule, though cautioning requesters that the SEC Office of FOIA Services is primarily responsible for evaluating information requests, expressly provides guidance for requests “misdirected” to a division or office of the SEC other than the Office of FOIA Services. The rule also indicates that the SEC will collaborate, both intra-agency within the SEC and among the other Federal agencies, if necessary in order to respond to a request for information. 82 Fed. Reg. 296 (2018) (to be codified at 17 C.F.R. §200.80(c)(2), (3)).

In drafting and promulgating regulation over a practitioner’s continuum, the SEC achieves equilibrium in the burden of regulatory compliance to be borne itself, as the governing agency, and as to that to be borne by the public. It, thus, internally evaluates regulatory alternatives prior to offering a new rule for public review. The SEC both protects and encourages investment and maintains market efficiency, and thereby produces national prosperity and capital growth. It gleans, from public participation, research that provides diversity in thought in policy making, examination and enforcement, and so provides both information and guidance to private investors.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.


Lori G. Nuckolls


Philosophy, Law and Politics

In Pursuit of Both Common Good and Public Interest, Governmental Entities Should be Required to Promote Self-Governance.

The text below is of a letter submitted yesterday, Christmas Day, in comment testimony before the Ohio General Assembly Joint Committee on Agency Rule Review. It concerns proposed rule making by the Attorney General for the State of Ohio in implementation of federal funding to provide support services to victims of sexual abuse. It is to be considered during the Committee’s next regularly scheduled meeting, tentatively scheduled for January 8, 2018.

Lori Gayle Nuckolls, Esq.

December 25, 2017

Joint Committee on Agency Rule Review
The Ohio General Assembly
Vern Riffe Center
77 South High Street
Concourse Level
Columbus, Ohio 43215

Sent Via Email to:

Re: Attorney General Proposed Rules 109:7-1-05 (disbursements) and 109:7-1-06 (definitions)

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed addition to the Ohio Administrative Code of new rules 109:7-1-05 and 109:7-1-06 by the Attorney General regarding the implementation of funding provisions for rape crisis programs under the auspices of the federal centers for disease prevention and control and denominated in the Ohio Revised Code as the “Rape crisis program trust fund.” Ohio Revised Code § 109.921. This program, as enacted, envisions comprehensive services for victims of sexual trauma.

The Ohio Revised Code mandates the Attorney General to provide funding to a “Rape crisis program,” which, as most broadly defined by statute, includes a “nonprofit [nongovernmental] entity that provides a full continuum of services to victims of sexual assault, including hotlines, victim advocacy, and support services from the onset of the need for services through the completion of healing ….” § 109.921(A)(1)(c) (emphasis added). And, the Ohio Revised Code states that “[a] rape crisis program that receives funding … shall use the money received …  for the following purposes [among others]:” “(2) …  hotlines, victim advocacy, or support services.” O.R.C.  § 109.921(D) (emphasis added). However, in contradiction to the foregoing express grant of statutory authority for the funding of “victim advocacy,” the new rule 109-7-05 proposed by the Attorney General expressly prohibits the use of funds for “Lobbying activities.” Proposed Rule 109-7-05(F)(1).

It does not seem that the Attorney General has included a definition of “Lobbying” in the proposed new rules. See, Proposed Rule 109:7-1-06 (definitions governing the trust fund). Nor does a definition of either “advocacy” or “lobbying” seem to appear in any other source of authority that would be applicable to this funding provision, apart and distinct from those generally previously existing under Ohio law. See, O.A.C. § 109:7-01-03 (definitions governing trust fund) and O.A.C. § 109:7-1-04 (procedures for submitting funding requests). See also, O.R.C. §101.70(E) (to “Actively advocate” deemed “Legislative lobbying.”); O.R.C. § 121.60(I) (“[C]ontacts made to promote, oppose, or otherwise influence … an executive agency decision” deemed “lobbying activity.”); and O.R.C. § 3517.20(A)(1), (2), & (3) (defining “Political communications” as those statements “for or against” or “advertising”).

The funding by the Attorney General should encourage productive informal discussions on diverse topics. The proposed funding would, and is needed to, do so. However, the prohibition on lobbying efforts in the proposed rule should be clarified for those entities to be funded. Discussion by program participants should relate to important, current issues in the community, especially as to those seeking support for transitions in difficult times. Activities financed under this trust fund would be an act of the governmental or nonprofit entity, and would not constitute a use of the funds by individual persons in behest of personal expression on various topics. Thus, some revision is indicated for the avoidance of express contradiction of the proposed rules with the authorizing legislation, and even as to contradiction within the very proposed rules, as to the use by the Attorney General of both “advocacy” and “lobbying.”

I offer that the Attorney General should modify the proposed rules to not expressly reach issues of “lobbying,” which under Ohio law includes advocacy. Rather, the Attorney General should only expect funding recipients to remain in compliance with the general laws governing lobbying and political influence. Consequently, funded centers could guide program participants on an individual basis as to personal issues and only be reviewed if they as fund recipients assert interested positions. This would prohibit persuasive statements or presentations by the funded entities which would constitute lobbying under Ohio law, yet still permit funds to support conversation among participants. And, the written informational material and oral presentations of advocacy organizations unaffiliated with the fund recipients could be made available in the ordinary course to permit informed decision making by program participants.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.


Lori G. Nuckolls

Philosophy, Law and Politics

Should State Agencies be Required to Schedule Public Hearings When Adopting Regulations?

        The below is the text of a Comment Letter I submitted this morning to the Ohio General Assembly’s Joint Committee on Agency Rule Review for consideration when the Committee reviews a proposed new regulation of the Ohio Department of Agriculture, during its regularly scheduled meeting on Monday, December 11, 2017. I ask the essential question of whether an agency as significant as Agriculture should be allowed to confuse the public as to whether a public hearing is obligatory when it adopts new regulations. If Agriculture finds public hearings useful and has conducted them upon public request, why has the Ohio Government not imposed the requirement of a public meeting upon its agency action? The public is fearful of even considering whether or not to participate. This is especially the case if they fear that they might make errors in interpreting procedural rules governing public comment. Perhaps Ohio law should be amended to require public hearings for agency action of all Ohio agencies of a certain size.

Joint Committee on Agency Rule Review
The Ohio General Assembly
Vern Riffe Center
77 South High Street
Concourse Level
Columbus, Ohio 43215

Sent Via Email to:

                                      Re: Ohio Department of Agriculture Proposed Rule 901: 0-4-01

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed addition to the Ohio Administrative Code of new rule 901: 0-4-01 by the Department of Agriculture regarding its procedure for conducting administrative hearings. I am concerned that the proposed rule exceeds the power and authority currently conferred upon the Department of Agriculture by Ohio Revised Code § 901.03. Consequently, I write in opposition to the proposed rule.

As presently drafted, the proposed new rule imposes confusing and burdensome language upon the public. It asks that those seeking to participate in an agency hearing reconcile the procedural requirements of Chapter 119 of the Ohio Revised Code with the provisions of the agency’s own Administrative Hearing Manual, found at: Neither the proposed new rule nor any proffered revision of the agency’s manual clearly indicate whether the  express language of  the proposed rule, specifically that “all administrative hearings shall be conducted in accordance with Chapter 119 of the Oho Revised Code,” imposes the hearing requirement incumbent within Chapter 119 upon the Department of Agriculture, or, if, instead, the burden remains upon the public to formally request a hearing in both rulemaking and adjudicatory contexts as indicated in the Department’s manual and in the current rule.

The Joint Committee on Agency Rule Review must ask if the Department of Agriculture, in the proposed new rule, clearly informs the public of whether primary governing authority as to Department of Agriculture rule making hearings is possessed by Chapter 119 or instead its agency manual. Otherwise, the Committee must ask if the agency is to be permitted leeway to revise its manual to so clearly inform the public after the proposed rule is issued and effective.

It must be acknowledged that 901: 0-4-01, as proposed, is a great step toward permitting the Department of Agriculture to reach the procedural goals and objectives of the Ohio Revised Code Chapter 119 mandatory agency hearing, currently a condition for action by certain agencies pursuant to their enabling legislation. O.R.C.§ 119.01; See also, O. R.C. §§ 113.061 (Treasurer) and 3752.03 (Director of Environmental Protection). And, in declining to issue an invalidating recommendation as to this proposed new rule, the Committee would permit the Department of Agriculture to retain the flexibility of self-governance, by imposing upon itself, through its authority under O.R.C. § 901.03 to “adopt reasonable rules and regulations,” the Chapter 119 hearing requirement, while not yet being statutorily bound to do so. For, Ohio Revised Code § 901.26, merely grants the power to conduct hearings to the Director of the Department of Agriculture while not requiring that the Director so conduct. These relevant provisions of the Ohio Revised Code governing the Department of Agriculture became effective in October of 1953, and have not been subsequently amended.

Governing agencies engage in varied forms of decision making, relying upon a variety of resources for data and information. We act to achieve both administrability and efficiency within our regulatory agencies, in behest of their respective individual statutory purpose.  But, a rule should be clearly written, and an agency should not be permitted to obtain its required experience and learning by burdening the public after a rule is promulgated.

The Department of Agriculture should be commended in seeking to increase popular participation in its rule making process. The proposed rule informs the public of the availability of both, at a minimum, the right to request a hearing and, as well, the existence of a periodically revised instructional manual to guide its exercise of this right. However, it should be noted that the Department of Agriculture’s most recently published The Rule-Making Process: a Guide to the Rule-Making Process of the Ohio Department of Agriculture is dated January of 2010, though agency guides to public participation in rule making are required to be prepared, published and revised as necessary or advisable by O.R.C. § 119.0311. While guides are not deemed rules by the General Assembly under O.R.C.§ 119.0311, this, again, poses a source of confusion as to the proposed rule that should not be overlooked.

As professed by the philosopher Michel Foucault, we must look to how the rules governing discussion and debate ideally facilitate or, instead, lessen participation. Discourse is a means of transforming procedural structures into the material facts of our day-to-day existence. Ohio’s agriculture relies upon the Department of Agriculture to provide good government that encourages profit and prosperity to the utmost. Perhaps it is the case that both the Department of Agriculture and the general public would benefit from mandatory Chapter 119 hearings in agrarian rule making. But, perhaps again, this agency, like others, and the general public as well, would more greatly benefit if this were to be achieved by the General Assembly, and not the proposed rule, even with the aid of the agency’s manual.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.


Lori G. Nuckolls

Philosophy, Law and Politics

A Want of Diversity in the Legal Community in Cincinnati, Ohio: an Addendum

As a further note to this discussion, I want to mention my own status as “the Good Token,” when a student at Harvard Law School in the Class of 1986. I was always, except possibly as to one course during my Third Year, the only Person of Color in the classroom. And, the classes were of as many as 150 students in each class.  In my First Year, on my dormitory floor were three additional female Persons of Color: a fellow African American from California, a Latin American and a Native American. We spoke of many things, but not of class attendance or even those classes for which we were registered. Rather, we spoke of our place in society and how we felt having been admitted to law school at Harvard. One afternoon, two of us went to the North End of Boston and brought back a box of cannoli from a neighborhood Italian bakery. In my First Year, the traditional Harvard Law “Study Group” was not mentioned for though the law school classes as admitted and presented in the First Year Class Directory were well diverse, there was little sense that the Study Groups would be. As a person who did attend class as the only minority, I joined with a classmate admitted from Radcliff, who had been a significant writer on The Crimson, as partners in our legal methods Moot Court requirement. And, I also did an introductory Lexis computer research session in the Langdell Library with another female classmate. In an era of great developments in American History, perhaps Barack, Eric, Hillary, Loretta, Michelle and William, as now on campus,  might form a Study Group, if they have not already done so. Are they still limited to four participants?

Lori Gayle Nuckolls

Philosophy, Law and Politics

A Want of Diversity in the Legal Community in Cincinnati, Ohio

In thinking about making Cincinnati’s legal community more diverse and inclusive, there are several questions with which we may begin.  First, what is the synthetic relationship between achieving diversity among corporate clients, corporate in-house counsel and law firm partners? Second, is diversity in the legal profession possible if inclusion and diversity are not sought at the same time, in a synchronized manner, among these three commercial participants? Third, how do we encourage each of these participants to simultaneously seek diversity and inclusion while consummating their business transactions? Fourth, is the only guiding principle to encourage diversity the due deference to fair and equal competition with the meritocratic review of attorneys?

Commercial clients seek attorneys who have a known reputation for quality legal advice within the marketplace. They want an attorney who, as to opposing counsel, can “cut the best deal” or “make court precedent,” for future business profit. This produces competition among law students whose Professor has recently published a book, or whose Professor is well-respected by centuries-old American and foreign corporations. There is competition between law faculty and their former students, now Senior Partners in Major Firms in Major Cities. These Senior Partners wonder throughout their career: “A law professor, why not I?”  This Faculty vs. Alumni competition promotes corporate business competition, and competition among Associates along the Partnership track. The quality in attorney work product Faculty vs. Alumni competition produces promotes competition among law students for positions as Summer Associates at top-tier law firms, who then compete for the offer of permanent employment.

To achieve diversity and inclusion within the legal profession, all law students must have access to and the opportunity to seek employment in the private sector, regardless of attributes of the diversity and inclusion debate, namely:  nation-state, gender, religion, sexual orientation and socio-economic status. In America, the marketplace and academic institutions are supported and determined by competition. Our country is no longer aristocratic or oligarchical. One cannot buy achievement and success.

Positions with a Law Review, prestigious law firm, respected Judge, major government agency or large non-profit entity depend upon academic achievement. And, the positions are sought by virtue of the learning to be gleaned from the experience and not the income to be derived. Lawyers in America, even at the height of success in the private law firm, have traditionally earned far less than their corporate client executives, though the level of academic training required of attorneys is far greater and far more expensive.

Like government, legal practice should be governed by merit, though remaining a marketplace for the survival of the fittest.  Permitting access to the private sector, while retaining necessary privileges of proprietary information and private property, poses difficult questions for drafting public standards for employment review. Perhaps, greater substantive participation of younger law firm associates in local, state and national bar association activities, such as the American Bar Association, as well as substantive participation in law school alumni activities, would more readily provide a comfortable sharing of ideas and views on the practice areas of interest to corporate clients. An academic sharing of learning and ability in an informal “study group” manner would allow governing partners and their clients to review the work product of attorneys of diversity in the context of current legal issues and pending matters.

While younger attorneys might not lead in specialized bar association sections, they may readily provide liaison to their recently attended law school and continue to share developments in the law gleaned from law faculty engaged in ongoing scholarship. Private sector attorneys of diverse attributes may then more readily acquire practice area knowledge and understanding expected by corporate clients to whom law firms putatively kowtow when making hiring and partnership decisions.

Client development by Senior Associates in behest of making Partner is not a matter of access to the wealthy corporate executives among us. Rather, it is determined by one’s ability to offer and  demonstrate an understanding of current law. And, most importantly, it is determined by a truly in-depth capacity for creative legal thinking to revise current law so that it better meets the needs of the corporate client and provides a competitive advantage and  niche in the for-profit marketplace.

Diverse attribute students and attorneys bear the same ethical and fiduciary duties and obligations as do the traditional attorneys of the majority stratum. These duties and obligations require all attorneys to reconcile the corporate client’s  goals of prosperity with the prosperity and public good of the nation.  Premier lawyers and law firms derive their earnings from the “institutional client” which has retained a given law firm for even possibly centuries with successive Senior Partners inheriting responsibility for the legal advice provided the client over the years. A lawyer of diverse attributes must share a learning of the law that is competitive in order to achieve success in the private sector.

Law students who study and think analytically, deductively reasoning from legal theory in order to understand statutes and case law, are the nouveau “Old Boys’ Network,” making Partner regardless of attributes of diversity. The son of the CEO, playing golf with lawyers once a week at various Country Clubs around the world, no longer  imposes a monopolistic, barrier to entry  impeding the success of the granddaughter of the Separate-but-Equal School Principal, whose father, as a Junior High School Principal, played golf  in a School Teacher’s League once a week on a Public course. The time has come. We need to name names, for neither David Pepper nor I have made Partner in Cincinnati, Ohio.

Oh, what could the matter be? Perhaps Cincinnati is ruled by the alumni of the University of Cincinnati College of Law  “sitting the bench,” State and Federal! David continues on as the Chair of the Democratic Party in Ohio. Though a daughter of a former Democratic Ward Chair and the President of the Democrat Club when a student at Hillary Clinton’s Wellesley College, I just sent dues to the GOP, membership I trust is “effective upon dispatch.” Diversity needed on many fronts, please!

Lori Gayle Nuckolls