Com. v. Hendrickson
| Decision Date | 15 October 1996 |
| Parties | COMMONWEALTH of Pennsylvania v. Ernest HENDRICKSON, Appellant. COMMONWEALTH of Pennsylvania v. Ernest S. HENDRICKSON, Appellant. COMMONWEALTH of Pennsylvania v. Ernest Stuart HENDRICKSON, Appellant. |
| Court | Pennsylvania Superior Court |
Carl M. Janavitz, Pittsburgh, for appellant.
Sally Kaye, Assistant District Attorney, Pittsburgh, for Com., appellee.
Before HUDOCK, FORD ELLIOTT and BROSKY, JJ.
In this appeal, we are asked to decide whether Pennsylvania's harassment by communication or address statute, 18 Pa.C.S.A. § 5504, is unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. 1 We are also asked to decide whether the District Attorney of Allegheny County had jurisdiction to prosecute appellant under 18 Pa.C.S.A. § 5504(a)(2) when the facsimile transmissions (faxes) forming the subject of the crime were sent from appellant's office in Westmoreland County, even though they were received by complainants in Allegheny County. For the reasons that follow, we affirm.
A brief summary of the facts follows. In late 1991 and early 1992, appellant sent a quantity of different faxes to approximately forty people at their offices in Allegheny County. Many of these faxes were sent repeatedly, so that, in total, approximately 400 faxes were received by the forty complainants. (Notes of testimony, 9/12-21/94 at 23.) Among those targeted to receive the fax transmissions were members of the faculty and staff of the University of Pittsburgh, a temporary employment agency staffed only by African Americans at the time of the incidents at issue, the NAACP 2 headquarters, Lynn Swann's 3 business office, and various law firms and other businesses. The faxes contained inflammatory racial and ethnic commentary, as well as derogatory commentary concerning the medical and legal professions. (Id. at 44-592.) The faxes were unsolicited, and were sent anonymously. (Id.) All of the complainants testified that the fax transmissions disrupted their offices to some degree, and caused emotions ranging from consternation to fear. (Id. at, inter alia, 101, 247-48, 268, 282-83, 342-43, 375-76, 412-416, 428-430, 459-62, 475-77, 494, 534-35, 543-44, 559, 576-77.)
Following a police investigation which led to his arrest, appellant was charged with forty-one (41) counts each of harassment by communication or address in violation of 18 Pa.C.S.A. § 5504(a)(1) and (a)(2), thirty-six (36) each of which went to the jury; and five (5) counts of ethnic intimidation, in violation of 18 Pa.C.S.A. § 2710. (Notes of testimony, 9/12- 21/94 at 983.) Appellant was tried by a jury and found guilty of the 36 counts of harassment by communication or address, pursuant to 18 Pa.C.S.A. § 5504(a)(2), and not guilty of the remaining counts. (Id. at 989-96). As noted supra, appellant challenges the constitutionality of the harassment by communication or address statute in its entirety, both on its face and as applied to him. That statute provides:
§ 5504. Harassment by communication or address
(a) Offense defined.--A person commits a misdemeanor of the third degree if, with intent to harass another, he:
(1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly; or
(2) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language.
(b) Venue.--Any offense committed under paragraph (a)(1) of this section may be deemed to have been committed at either the place at which the telephone call or calls were made or at the place where the telephone call or calls were received.
Appellant raises two constitutional challenges; first, that the statute is vague, and second, that the statute is overbroad. No Pennsylvania appellate court has to date addressed the constitutionality of § 5504. We note, however, that, " " Commonwealth v. Walker, 298 Pa.Super. 387, 393, 444 A.2d 1228, 1231 (1982), quoting Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). See also Estate of Cox, 327 Pa.Super. 479, 483-85, 476 A.2d 367, 370 (1984). With that standard before us, we set forth a brief overview of free speech jurisprudence.
Any analysis of First Amendment protections must begin with the following observations made by the Supreme Court in 1942:
[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include 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. It has been well observed that such utterances 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.
Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (footnotes omitted). Accord, Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803 (1976). This analysis was echoed by the Fifth Circuit Court of Appeals in Shackelford v. Shirley, 948 F.2d 935 (5th Cir.1991), in which that court stated:
As speech strays further from the values of persuasion, dialogue and free exchange of ideas the first amendment was designed to protect, and moves toward threats made with specific intent to perform illegal acts, the state has greater latitude to enact statutes that effectively neutralize verbal expression.... Professor Tribe describes the 'public dialogue' values underlying the first amendment as follows:
The notion that some expression may be regulated consistent with the first amendment ... starts with the already familiar proposition that expression has special value only in the context of 'dialogue': communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs ... It is not plausible to uphold the right to use words as projectiles where no exchange of views is involved.
Shackelford, supra at 938 (citations omitted), quoting L. Tribe, American Constitutional Law, § 12-8 at 836-37 (2d ed.1988). It is within this context that we must view the "hate faxes" sent unsolicited by appellant to the offices of individuals who were, because of their race, their religion, or their profession the subjects of the vituperation contained therein.
In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (footnotes omitted). Following this analysis, we turn to appellant's overbreadth issue, and note that appellant was found not guilty as to § 5504(a)(1), but guilty as to § 5504(a)(2). Our first task, then is to determine whether appellant has standing to challenge the overbreadth of the statute. The Supreme Court's analysis in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), provides guidance:
[T]he Court has altered its traditional rules of standing to permit--in the First Amendment area--'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
Id. at 612, 93 S.Ct. at 2916 (citations omitted). We determine that, under the Broadrick rule, appellant has standing to challenge the overbreadth of the Pennsylvania statute.
As to the merits of appellant's claim, Broadrick, supra, is once again instructive:
It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.
Broadrick, supra at 611-12, 93 S.Ct. at 2915. Hence, in the instant case, the compelling needs of society in preventing harassment of its citizens are to be weighed...
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