City of Bellevue v. Lorang

Decision Date03 February 2000
Docket NumberNo. 67488-4.,67488-4.
Citation992 P.2d 496,140 Wash.2d 19
CourtWashington Supreme Court
PartiesCITY OF BELLEVUE, Respondent, v. Jon M. LORANG, Petitioner.

Derek William Loeser, Seattle, for Amicus Curiae on behalf of American Civil Liberities Union.

Michael Lawrence Mittlestat, Richard Robert Tassano, Seattle, for Petitioner.

Jerome Roache, Bellevue City Attorney, Bellevue, for Respondent.

JOHNSON, J.

The question presented is whether the City of Bellevue's telephone harassment ordinance (Ordinance) is unconstitutional insofar as it forbids speech that is "profane" or "[w]ithout purpose of legitimate communication." Bellevue City Code (BCC) 10A.84.090(A)(1), (4). The Court of Appeals held the Ordinance was constitutional and affirmed Lorang's conviction. We reverse.

FACTS1

In 1994, City of Bellevue resident Jon Lorang was living in an apartment complex managed by the King County Housing Authority (Housing Authority). He was somehow assigned two apartments and was instructed to vacate one of them and move to the other.

On August 5, 1994, Edward Win, a Housing Authority employee and resident manager of Lorang's apartment building, found four messages on his telephone answering machine from Lorang. Win testified, "I remember I heard [Lorang] referring to Miss Jones as a bitch and a twat. Charles Biggers as Charley boy and him coming over with the sheriff and bringing nine bros." Clerk's Papers at 217. He "referred to the Housing Authority as King of Kings...." Clerk's Papers at 227. Jones and Biggers are both Housing Authority employees. Win also stated Lorang was calling to complain, and not calling with a purpose. Win testified, Lorang "told me several times that the Housing Authority was harassing him and was vindictive toward him." Clerk's Papers at 220.

Lorang was convicted of telephone harassment against the Housing Authority under BCC 10A.84.090.2 The Ordinance at issue states:

Telephone harassment shall be as follows:

A. Every person who, with intent to disturb, embarrass, harass, intimidate, threaten or torment any other person, shall make a telephone call to such other person:
1. Using any lewd, lascivious, profane, indecent or obscene words or language, or suggesting any lewd or lascivious act; or
2. Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or
3. Threatening to inflict injury on the person or property of the person called or any member of his family; or
4. Without purpose of legitimate communication.
B. The foregoing offense shall be deemed committed either at the place where the telephone call or calls were made or at the place where the telephone call or calls were received.
C. Telephone harassment is a misdemeanor.

BCC 10A.84.090 (emphasis added).

Although the Court of Appeals found the Ordinance potentially unconstitutional, it affirmed Lorang's conviction in a published decision and ordered future jury instructions to include a secular definition of "profane." City of Bellevue v. Lorang, 92 Wash.App. 186,196, 963 P.2d 198 (1998). Lorang sought review of that decision, which we granted.

ISSUES3
(1) Is an ordinance that restricts "profane" speech without defining it secularly constitutionally suspect?
(2) Is an ordinance that restricts "profane" speech without defining it secularly overbroad?
(3) Is an ordinance that restricts telephone calls made "without purpose of legitimate communication" unconstitutional for vagueness?
(4) Was any error harmless?
ANALYSIS
Content Restrictions on Speech

The issue here centers on the Ordinance's use of the term "profane." While antiharassment ordinances are constitutional, see, e.g., City of Seattle v. Huff, 111 Wash.2d 923, 767 P.2d 572 (1989), they must be carefully drawn not to burden protected speech. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 387, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("In our view, the First Amendment imposes ... a `content discrimination' limitation upon a State's prohibition of proscribable speech."). "A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 115, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991).

Lorang contends that "profane" is not a content neutral term, and the City of Bellevue has, therefore, placed an impermissible content based burden on speech. Determining the meaning of "profane" resolves whether the Ordinance burdens protected speech.

"Profane" is not defined in the Ordinance. Unless contrary legislative intent is indicated, words are given their ordinary, dictionary meaning. See State v. McDougal, 120 Wash.2d 334, 350, 841 P.2d 1232 (1992). Webster's defines "profane" as:

to violate or treat with abuse, irreverence, obloquy, or contempt (something sacred) : treat as not sacred : DESECRATE, POLLUTE... unconcerned with that which is religious or with the purpose of religion : not devoted to the sacred and the holy ... not holy because unconsecrated, impure, or defiled....

Webster's Third New International Dictionary 1810 (1986). Black's Law Dictionary defines "profane" as: [i]rreverence toward God or holy things. Writing, speaking, or acting, in manifest or implied contempt of sacred things." Black's Law Dictionary 1210 (6th ed.1990). The Oxford English Dictionary defines "profane" as:

1. Not pertaining or devoted to what is sacred or biblical ...; unconsecrated, secular, lay, common; civil, as distinguished from ecclesiastical.
....
2. Applied to persons or things regarded as unholy or as desecrating what is holy or sacred: unhallowed; ritually unclean or polluted; esp. said of the rites of an alien religion: heathen, pagan.
....
3. Characterized by disregard or contempt of sacred things, esp., in later use, by the taking of God's name in vain; irreverent, blasphemous, ribald; impious, irreligious, wicked.

The Oxford English Dictionary vol. VIII, at 1425 (1933).

The word "profane" is also defined as "to indulge in profanity." Webster's Third New International Dictionary 1810 (1986). The Court of Appeals found that "profane (meaning vulgar or coarse) language easily occupies a place equivalent to the other ... categories of speech entitled to minimal protection because of their low value in the exchange of ideas." Lorang, 92 Wash.App. at 195,963 P.2d 198. The Court of Appeals concluded, "`words are known by the company they keep,'"4 and the other words contained in the Ordinance (lewd, lascivious, indecent, and obscene) do not concern themselves with blasphemy. After determining that "profane" was a secular term, the Court of Appeals concluded the Ordinance did not discriminate based on viewpoint. Lorang, 92 Wash.App. at 195,963 P.2d 198. We disagree with this approach. A reading of "profane" in this way renders it redundant with "indecent" and "obscene," triggering another principle of statutory construction: "statutes should be construed so that all of the language used is given effect, and no part is rendered meaningless or superfluous." State v. Bash, 130 Wash.2d 594, 602, 925 P.2d 978 (1996) (citing Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996)).

We find the general dictionary definition of "profane" has a religious denotation and, thus, generally refers to speech that is accorded strong protection under the United States Constitution. See also State v. Alexander, 76 Wash.App. 830, 843, 888 P.2d 175 (1995) ("`Profane' has another, common connotation, however. It is frequently used to describe language `[m]anifesting irreverence or disrespect toward the Deity or sacred things.'") (Baker, A.C.J., concurring) (quoting Funk & Wagnall's Standard Desk Dictionary (1966)). We find that forbidding "profane" speech implicates the First Amendment to the United States Constitution and, therefore, analyze the Ordinance to test whether it serves a compelling state interest and is not overbroad, and whether the City of Bellevue can "achieve its ends in a less restrictive manner...." State v. Oyen, 78 Wash.2d 909, 919, 480 P.2d 766 (1971), vacated on other grounds, 408 U.S. 933, 92 S.Ct. 2846, 33 L.Ed.2d 745 (1972).

The fact this Ordinance burdens protected speech does not end the analysis. We must next determine whether the burden is constitutionally permissible. The First Amendment does not bar the State from outlawing speech based harassment. See Huff, 111 Wash.2d at 929, 767 P.2d 572. The question is whether this Ordinance does so in a way that is unconstitutionally overbroad.

Overbreadth

"A statute is overbroad if its prohibitions extend beyond proper bounds and violate the First Amendment's protection of free speech." City of Seattle v. Eze, 111 Wash.2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988) (citing Federal Way Family Physicians, Inc. v. Tacoma Stands Up For Life, 106 Wash.2d 261, 267-68, 721 P.2d 946 (1986)). An overbreadth challenge is facial, and will prevail even if the statute could constitutionally be applied to a litigant. State v. Motherwell, 114 Wash.2d 353, 370-71, 788 P.2d 1066 (1990).

In Huff, this court outlined the rule to be applied in overbreadth challenges:

A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. The First Amendment overbreadth doctrine may invalidate a law on its face only if the law is "substantially overbroad." In determining overbreadth, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Criminal statutes require particular scrutiny and may be facially invalid if they "make unlawful a substantial amount of constitutionally protected conduct...." This standard is very high and speech will be protected "`... unless shown likely to produce a clear and present danger of a serious substantive evil that rises far
...

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