State v. Elder

• Decision Date: 03 April 1980
• Docket Number: No. 55182,55182
• Parties: STATE of Florida, Appellant, v. Arlene ELDER, Appellee.
• Court: Florida Supreme Court

Page 687

382 So.2d 687

STATE of Florida, Appellant, v. Arlene ELDER, Appellee.

No. 55182.

Supreme Court of Florida.

April 3, 1980.

Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellant.

Wm. J. Sheppard and Stephen J. Weinbaum of the Law Offices of Wm. J. Sheppard, Jacksonville, for appellee.

SUNDBERG, Justice.

This is an appeal from an order of the County Court for Duval County, Florida, which initially and directly passed upon the validity of section 365.16(1)(b), Florida Statutes (1977). The issue presented is whether section 365.16(1)(b), which forbids the making of an anonymous telephone call with the intent to annoy, abuse, threaten, or harass the recipient of the call, is unconstitutionally overbroad on its face. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellee, Arlene Elder, was charged by amended information with making a telephone call, without disclosing her identity, to one Victoria Elaine Elder solely to annoy, abuse, threaten or harass her contrary to section 365.16(1) (b), Florida Statutes (1977). ¹ Appellee moved to dismiss the information on the grounds that the statutory provision was facially overbroad in violation of article I, sections 4 and 9 of the Florida Constitution, and the first and fourteenth amendments to the United States Constitution. The county court found that subsection (1)(b) proscribed "pure speech" contrary to the case law which the court said admits of only two classes of unprotected speech language posing a clear and present danger of breach of the peace ("fighting words") and obscenity. The court stated that because neither the statutory language nor any judicial gloss had limited the statute's application to fighting words or obscenity, the statute was overbroad without regard to the particular facts of the case. To support its conclusion that the statute was overbroad, the court cited several examples of constitutionally protected speech which would purportedly come within the statute's proscription: a phone call made with specific intent to "annoy" a person by telling him that he had bad manners; a phoned "threat" to a friend telling him that if he does not pay off a small debt he will never be spoken to again; one businessman calling another intending to "abuse" and "annoy" the latter by calling him dishonest. Finally, the court rejected any limiting construction of section 365.16(1)(b) on the basis that to so limit the statute and at the same time apply it to the defendant would deny him due process of law because of the lack of prior notice of the conduct proscribed. For the following reasons, we believe that the county court erred in finding section 365.16(1)(b) facially unconstitutional. ²

We begin with the proposition that because of the transcendent value of constitutionally protected expression, statutes regulating expression must be narrowly tailored to further the legitimate state interest involved, Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); McCall v. State, 354 So.2d 869 (Fla.1978); so that the first amendment freedoms are given the breathing room needed to survive. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Brown v. State, 358 So.2d 16 (Fla.1978). Where a statute punishes only spoken words it is facially constitutional under the overbreadth doctrine only if, as construed by the state courts, it is not susceptible of application to constitutionally protected speech. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Spears v. State, 337 So.2d 977 (Fla.1976). We note in passing that the trial court, in ruling that section 365.16(1)(b) was unconstitutionally overbroad because it was not limited to the proscription of fighting words or obscenity, overlooks the fact that the constitutional right of free speech does not absolutely protect libelous or slanderous speech, nor does free speech absolutely insulate a person from tort liability for invasion of privacy or intentional infliction of emotional distress, nor from criminal liability for certain forms of "pure speech." ³ Such expression belongs to "that category of utterances which 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' " Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

We need not, however, pass on whether section 365.16(1)(b) validly proscribes pure speech. Rather, we disagree with the trial court's characterization of the section as a proscription of pure speech. This statutory provision is not directed at the communication of opinions or ideas, but at conduct, that is, the act of making a telephone call or a series of telephone calls, without disclosing identity and whether or not conversation ensues, with the intent to annoy, abuse, threaten or harass the recipient of the call. Accord, Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972). Cf. S. H. B. v. State, 355 So.2d 1176 (Fla.1978). That this conduct may be effected in part by verbal means does not necessarily invalidate the statute on freedom of speech grounds. At most, the use of words as the method with which to harass the recipient of the call involves conduct mixed with speech, to which the controlling constitutional considerations differ somewhat from those applied to pure speech. Specifically, with regard to overbreadth, the applicable test is stated in Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973): "(W)here conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." As construed below, section 365.16(1)(b) is clearly applicable to a whole range of activity which is easily identifiable and which constitutionally may be proscribed. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). We hold, therefore, that the asserted overbreadth of section 365.16(1)(b) is not real and substantial judged in relation to the statute's plainly legitimate sweep.

In construing section 365.16(1)(b), we are mindful of our responsibility to resolve all doubts as to the validity of a statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent. State v. Keaton, 371 So.2d 86 (Fla.1979); White v. State, 330 So.2d 3 (Fla.1976). The Court will not, however, abandon judicial restraint and invade the province of the legislature by rewriting its terms. State v. Keaton; Brown v. State, 358 So.2d 16 (Fla.1978). In dealing with statutory regulation of first amendment activity, this Court has in the past strictly construed a challenged statute to uphold it against vagueness or overbreadth attacks. See, e. g., State v. Saunders, 339 So.2d 641 (Fla.1976); White v. State, supra. After careful consideration we, likewise, here conclude that the language of section 365.16(1)(b) is fairly susceptible to a constitutional construction that is consistent with the legislative intent.

The closely related provisions of subsections (1)(b) through (1)(d) of section 365.16 evince a legislative intent to proscribe an act or a course of conduct that serves little, if any, informative or legitimate communicative function. ⁴ The statute is carefully worded as to the specific conduct proscribed and is carefully limited with preconditions so as not to infringe on legitimate free speech rights. ⁵ First of all, the statutory proscription of subsection 365.16(1)(b) through (1)(d) is applicable only against the person performing the act of telephoning someone. This in itself shows a legislative concern not with the content of what was said but with the act of intruding upon another's privacy. Specifically, under subsection (1)(b), this legislative concern is further highlighted by the lack of any requirement that conversation ensue. Next, for conviction under subsection (1)(b), the caller must make the call without disclosing his identity. We wholly agree with the analysis of the United States District Court in United States v. Dorsey, 342 F.Supp. 311 (E.D.Pa.1972), that the "anonymity of the caller is in itself a circumstance raising discomfort and fear in the receiver of the call." Id. at 313 (construing federal statutory counterpart to Florida subsection 365.16(1) (b)). This anonymity is also a factor militating against any legitimate free speech communicative function. In addition, it must be shown that when the telephone call was made it was the caller's intent to annoy, abuse, threaten or harass. This improper intent must be the motivating factor in the caller's telephoning another person and the call must not serve a legitimate communicative or informative function. ⁶ Thus, the caller may not circumvent the salutary proscription of the statute merely by using words as the means with which to annoy, abuse, threaten or harass. " "(I)t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. " Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1963).

Finally, the statutory language of subsection (1)(b), "to annoy, abuse, threaten or harass" presupposes that the telephone call is uninvited. It is this nonconsensual element of the telephone call which distinguishes the situation here from that in State v. Keaton, 371 So.2d 86 (Fla.1979), where we held that subsection (1)(a) of section...