City of Bellevue v. Lorang

• Decision Date: 31 August 1998
• Docket Number: No. 38975-1-I,38975-1-I
• Citation: 92 Wn.App. 186,963 P.2d 198
• Court: Washington Court of Appeals
• Parties: 186CITY OF BELLEVUE, Respondent, v. Jon M. LORANG, Petitioner.

Page 186

92 Wn.App. 186

963 P.2d 198

186CITY OF BELLEVUE, Respondent, v. Jon M. LORANG, Petitioner.

No. 38975-1-I.

Court of Appeals of Washington Division 1.

Aug. 31, 1998.

Michael L. Mittlestat, Washington Appellate Project, Seattle, for Petitioner.

Jerome Y. Roache, Bellevue City Atty. Ofc., Bellevue, for Respondent.

ELLINGTON, Judge.

Jon Marc Lorang was convicted of telephone harassment under Bellevue City Code ("BCC") 10A.84.090. ¹ We granted his petition for discretionary review to consider whether the ordinance violates the free speech provisions of the federal or state constitutions by seeking to prohibit the use of "profane" language. Mr. Lorang contends that the term "profane" has anti-religious connotations and that the ordinance's ban is therefore viewpoint-based. We construe the word "profane" in its secular sense and conclude the Bellevue ordinance is facially constitutional. To ensure that the anti-religious meaning of "profane" is not applied in future cases involving the same or similar statutes, juries should be provided an instruction including the secular definition of the term. Although no such instruction was given in this case, we decline Mr. Lorang's request for remand and a new trial because, excluding the one arguably anti-religious statement at issue, we find the evidence of guilt overwhelming. We therefore affirm.

Facts

During the period leading to the telephone calls at issue, Mr. Lorang was involved in a dispute with the King County Housing Authority over his housing status. The Housing Authority required Mr. Lorang to move from one complex to another, an action which he apparently felt constituted harassment and retaliation. On August 5, 1994, Mr. Lorang left four messages on the answering machine at his apartment complex office. In the messages, Mr. Lorang used offensive language of a sexual nature and racial slurs. ² In addition, he referred to the Housing Authority (or the County) as "King of kings." This last statement is the focus of this appeal.

The City of Bellevue charged Mr. Lorang with one count of telephone harassment for these four calls. The trial court instructed the jury that, to convict Mr. Lorang of harassment, it must find that he telephoned "any other person with intent to disturb, embarrass, harass, intimidate, threaten or torment such other person" and that he called "[u]sing any lewd, lascivious, profane, indecent or obscene words or language, or suggesting any lewd or lascivious act" or "[w]ithout purpose of legitimate communication." (Emphasis added.) The court defined intent, but did not define any other terms.

The jury found Mr. Lorang guilty. He filed an appeal pursuant to RALJ 2.2(a), challenging the sufficiency of the evidence and, for the first time, challenging the constitutionality of the telephone harassment ordinance as applied to him. On review, the King County Superior Court affirmed, finding the evidence sufficient and holding that the ordinance was not overbroad as applied to Mr. Lorang. He then sought discretionary review pursuant to RAP 2.3(d), reasserting his insufficiency of the evidence claim and raising a new challenge to the facial validity of the ordinance. We granted review solely on the constitutional issue.

Regulating Speech

We are for the first time faced squarely with the issue whether defining telephone harassment as telephoning (with the requisite intent) using "profane" language violates the First Amendment of the United States Constitution ³ or article I, section 5 of the Washington Constitu tion. ⁴ Our courts have thus far rejected first amendment challenges to laws criminalizing telephone harassment. See City of Seattle v. Huff, 111 Wash.2d 923, 767 P.2d 572 (1989); State v. Alexander, 76 Wash.App. 830, 888 P.2d 175 (1995); State v. Dyson, 74 Wash.App. 237, 872 P.2d 1115 (1994). In Huff and Dyson, however, the courts were not confronted with the issue whether the prohibition of "profane" speech in the context of telephone harassment is facially constitutional. Likewise, although the court in Alexander rejected the defendant's challenge that "profane" as used within the telephone harassment statute was unconstitutionally overbroad, the majority ⁵ did not address the issue whether, in light of the anti-religious connotations of "profane," the statute impermissibly regulated speech on the basis of viewpoint. Thus, we must analyze anew the issue presented here.

We begin our analysis by examining the holding in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). In R.A.V., the Supreme Court struck down a "hate crimes" statute that criminalized the placing on public or private property of symbols or objects that are known to arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. 505 U.S. at 380, 112 S.Ct. 2538. In reaching its holding, the R.A.V. Court began with the proposition that content-based regulations on speech are presumptively invalid. Id. at 382, 112 S.Ct. 2538. Certain categories of speech, however may be restricted on the basis of content because they 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.' " Id. at 383, 112 S.Ct. 2538 (quoting Chaplinsky v. New Hampshire 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). These proscribable categories of speech have evolved from those first enunciated in Chaplinsky, namely:

the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

315 U.S. at 572, 62 S.Ct. 766. Although the scope of these exceptions to the prohibition against content-based regulation has narrowed over time, the "categorical approach has remained an important part of [the Supreme Court's] First Amendment jurisprudence." R.A.V., 505 U.S. at 383, 112 S.Ct. 2538.

In R.A.V., however, the Supreme Court took what some view as a step back from the categorical approach, ⁶ stating that, although certain areas of speech may be regulated because of their content, they are not entirely invisible to the Constitution and cannot "be made the vehicles for content discrimination unrelated to their distinctively proscribable content." Id. at 383-84, 112 S.Ct. 2538. We do not, however, interpret R.A.V. as retreating from the categorical approach. Instead, we read R.A.V. as confirming that viewpoint neutrality is required in speech regulation, even when the area of speech being affected falls within a category traditionally afforded minimal or no protection. ⁷ See id. at 384, 112 S.Ct. 2538 (providing as an example that "the govern- ment may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government"); see also id. at 391-92, 112 S.Ct. 2538 (observing that the hate crimes statute at issue in R.A.V. went beyond content discrimination and actually discriminated on the basis of viewpoint: "St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.").

Defining "Profane"

We are faced here with a challenge to the viewpoint neutrality of the term "profane" within the meaning of the Bellevue telephone harassment ordinance. Construction of the term is our first task.

Ordinances are presumed constitutional, and Mr. Lorang bears the burden of demonstrating otherwise in this case beyond a reasonable doubt. City of Spokane v. Fischer, 110 Wash.2d 541, 542, 754 P.2d 1241 (1988). When possible, we will construe an ordinance to uphold its constitutionality. State v. Reyes, 104 Wash.2d 35, 41, 700 P.2d 1155 (1985). We narrowly construe criminal ordinances affecting speech so that they prohibit only unprotected speech. Id. at 40, 700 P.2d 1155 (citing Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)). Ultimately, we seek to effectuate the legislative intent, although within constitutional constraints. See State v. Standifer, 110 Wash.2d 90, 92, 750 P.2d 258 (1988) (citing State v. Bernhard, 108 Wash.2d 527, 533, 741 P.2d 1 (1987)).

When a term is not specifically defined, we apply its ordinary meaning. 110 Wash.2d at 92, 750 P.2d 258; see also State v. McDougal, 120 Wash.2d 334, 350, 841 P.2d 1232 (1992). Webster's dictionary defines profane as 1 : unconcerned with that which is religious or with the purposes of religion : not devoted to the sacred and the holy ... 2 : not holy because unconsecrated, impure, or defiled ... 3 a : serving to debase or defile that which is holy or worthy of reverence : contemptuous of beautiful or sacred things ... b(1) : characterized by abusive language directed esp. against the name of God (2) : indulging in cursing or vituperation : marked by insulting or perverted utterance....

WEBSTER'S THIRD NEW INT'L DICTIONARY 1810 (1976) [hereinafter WEBSTER'S]. Another dictionary defines profane as:

1. Showing contempt or irreverence toward God or sacred things; blasphemous.... 4. Vulgar; coarse.

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, NEW COLLEGE ED. 1044 (1981). Thus, the term "profane" apparently has both anti-religious and secular meanings.

In addition, both usages are common. Courts construing the term "profane" have often given it its meaning of irreverence toward God or holy things. See, e.g., Duncan v. United States, 48 F.2d 128, 133-34 (9th Cir.1931) (discussing cases); State v. Authelet, 120 R.I. 42, 385 A.2d 642, 644 (1978) (courts "have invariably held the word to mean any words importing an imprecation of divine vengeance or implying divine condemnation or irreverence toward God or holy things"). On the other hand, courts confronting a constitutional challenge tend to give the term its secular meaning, as referring to crude, vulgar, or grossly...