State v. Alexander

• Citation: 76 Wn.App. 830,888 P.2d 175
• Decision Date: 06 February 1995
• Docket Number: Nos. 31925-6-,31945-1-I,s. 31925-6-
• Court: Court of Appeals of Washington
• Parties: The STATE of Washington, Respondent, v. Richard ALEXANDER, Appellant. The CITY OF SEATTLE, Respondent, v. Pamela POTTER, Appellant.

Page 830

76 Wn.App. 830

888 P.2d 175

The STATE of Washington, Respondent, v. Richard ALEXANDER, Appellant.

The CITY OF SEATTLE, Respondent, v. Pamela POTTER, Appellant.

Nos. 31925-6-I, 31945-1-I.

Court of Appeals of Washington,

Division 1.

Feb. 6, 1995.

Miriam Schwartz, Seattle, for petitioners.

Margaret Boyle, Roger Rogoff, King County Deputy Prosecutor, for respondents.

COLEMAN, Judge.

Pamela Potter and Richard Alexander appeal their convictions for telephone harassment. They allege that the laws under which they were convicted are unconstitutionally overbroad and vague. We affirm.

On four successive days in April 1990, Pamela Potter made 680 "hang-up" telephone calls to the United Way Crisis Clinic. She was charged by complaint in Seattle Municipal Court with two counts of telephone harassment pursuant to SMC 12A.06.100. That ordinance reads in pertinent part:

A person is guilty of making telephone calls to harass, intimidate, torment or embarrass any other person if, with intent to harass, intimidate, torment or embarrass any other person, he makes a telephone call to such other person:

....

2. Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues[.]

SMC 12A.06.100(A)(2). The jury convicted Potter of both counts after receiving an instruction, which was based on this ordinance, that omitted any reference to the term "embarrass". The King County Superior Court affirmed on RALJ appeal. Potter then sought discretionary review in the Court of Appeals, which was granted.

Richard Alexander called his former girl friend over a period of months, up to 15 times a day, at all hours, and with foul language. He was charged in Shoreline District Court with telephone harassment in violation of RCW 9.61.230. Under that statute, a person commits a crime when he makes a telephone call to another person

with intent to harass, intimidate, torment or embarrass ... such other person:

(1) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or (2) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues[.]

RCW 9.61.230. Prior to trial, Alexander moved to dismiss the charge, challenging the constitutionality of the statute as overbroad and vague. The court denied the motion.

The jury was instructed that, to convict Alexander, it would have to find that he had "either: (a) used profane words or language, or (b) telephone[d] anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensued", with intent to harass, intimidate, torment or embarrass the former girl friend. The jury convicted Alexander as charged. On RALJ appeal the King County Superior Court affirmed his conviction. This court granted discretionary review and consolidated the two appeals.

We first determine whether RCW 9.61.230 and SMC 12A.06.100 are unconstitutionally overbroad. Alexander contends that the language "to embarrass" contained in the statute is unconstitutionally overbroad. Potter and Alexander challenge the breadth of both enactments in their entirety. As an initial matter, we find that Potter and Alexander correctly assert that they have standing to challenge the facial validity of the provisions at issue even though their own conduct falls within the "hard core" of the laws because "third party standing is appropriate when the challenged statute may chill constitutionally protected behavior." ¹ Seattle v. Ivan, 71 Wash.App. 145, 150, 856 P.2d 1116 (1993) (citing Tacoma v. Luvene, 118 Wash.2d 826, 840, 827 P.2d 1374 (1992)).

1. Overbreadth--Alexander. Alexander argues that the term "to embarrass" is overbroad in violation of the First Amendment and Washington Constitution article 1, section 5.

Alexander contends that the Supreme Court in Seattle v. Huff, 111 Wash.2d 923, 767 P.2d 572 (1989) (Huff II) found that the term "embarrass" as used in RCW 9.61.230 was unconstitutionally overbroad. This misstates the court's holding in that the Supreme Court did not address whether that construction is constitutionally mandated. ² Thus, we must consider the constitutional breadth of the term "embarrass".

Overbreadth occurs when a law proscribes constitutionally protected free speech activities. In response to a facial challenge under the First Amendment, the court must first determine whether the overbreadth is both real and substantial in relation to the law's plainly legitimate sweep. State v. Halstien, 122 Wash.2d 109, 122-23, 857 P.2d 270 (1993) (citing Luvene, 118 Wash.2d at 839-40, 827 P.2d 1374 and Seattle v. Eze, 111 Wash.2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988)). If a law covers a substantial amount of protected speech in a nonpublic forum, that speech may be regulated if the law draws distinctions that are reasonable in light of the purpose served by the forum and if the law is viewpoint neutral. Huff II, 111 Wash.2d at 926, 767 P.2d 572. Potter and Alexander do not dispute that the enactments in this case are viewpoint neutral. At issue is whether any overbreadth is real and substantial in relation to the plainly legitimate sweep of the legislation and, if so, whether the term "embarrass" draws distinctions that are reasonable in light of the purpose served by the forum, telephone communication.

Alexander argues under Seattle v. Huff, 51 Wash.App. 12, 751 P.2d 879 (1988) (Huff I), aff'd, 111 Wash.2d 923, 767 P.2d 572 (1989) (without assessing Court of Appeals' analysis of "embarrass") that the proscription of specified calls, those which include certain language or conduct and are intended to embarrass, is too broad to constitute a reasonable restriction on free speech. In that case, the Court of Appeals considered the following subsection of the provision currently before this court.

A person is guilty ... if, with intent to harass, intimidate, torment or embarrass any other person, he makes a telephone call to such other person:

. . . . .

(3) Threatening to inflict injury on the person or property of the person called or any member of his family[.]

Huff I, 51 Wash.App. at 14, 751 P.2d 879 (quoting SMC 12A.06.100(A)(3)). The Court of Appeals found "embarrass" overbroad under a different analytical framework than the one utilized by the Supreme Court in Huff II. The Court of Appeals weighed the City's interests against the infringement on protected speech and found that the City could not demonstrate a compelling interest in criminalizing telephone calls that are merely intended to embarrass the listener. Huff I, at 16, 751 P.2d 879. The test, however, is not whether the State has a compelling interest in regulating the conduct. The correct test is whether a law, which encompasses a substantial amount of constitutionally protected conduct, draws distinctions that are reasonable in light of the purpose served by the forum. Further, the Court of Appeals did not focus on the impact of the specific intent required by the telephone harassment law. Although the court's opinion in Huff I is instructive, we must reevaluate the constitutional sweep of the term "embarrass" as used in RCW 9.61.230 under the standard and framework announced by the Supreme Court in Huff II. We find that the statute survives this constitutional challenge.

In Huff II, the Supreme Court concluded that the portion of Seattle's telephone harassment ordinance proscribing threats "to inflict injury on the person or property of the person called" encompassed a substantial amount of constitutionally protected speech. The court held, however, that such proscriptions were constitutional because they were viewpoint neutral and reasonable in light of the purpose served by the forum. In concluding that the ordinance's restrictions were reasonable, the court specifically noted that the proscribed threats must be made with the requisite intent. Huff II, 111 Wash.2d at 927, 767 P.2d 572. Several other decisions have rejected overbreadth challenges to statutes or ordinances because a specific intent requirement sufficiently narrowed the laws' proscriptions. State v. Billups, 62 Wash.App. 122, 128, 813 P.2d 149 (1991); Seattle v. Webster, 115 Wash.2d 635, 642, 802 P.2d 1333, 7 A.L.R.5th 1100 (1990), cert. denied, 500 U.S. 908, 111 S.Ct. 1690, 114 L.Ed.2d 85 (1991); Seattle v. Slack, 113 Wash.2d 850, 855, 784 P.2d 494 (1989).

Because telephone communication occurs in a nonpublic forum, it receives substantially less protection than expression in a public forum. See Huff II, 111 Wash.2d at 927, 767 P.2d 572. Telephone communication intrudes into normally private preserves such as the home, thereby invoking privacy considerations. In contrast to communication broadcast on the television and radio, which an unwilling recipient can choose to ignore, "[a] ringing telephone is an imperative which ... must be obeyed with a prompt answer." People v. Weeks, 197 Colo. 175, 591 P.2d 91, 96 (1979). See also State v. Koetting, 616 S.W.2d 822, 826-27 (Mo.1981). Typically, the recipient of a telephone call does not know who is calling, and "[o]nce the telephone has been answered, the victim is at the mercy of the caller until the call can be terminated by hanging up." Weeks, 591 P.2d at 96.

The Supreme Court has recognized that substantial privacy interests, which the State may recognize and protect, are involved when communication intrudes into the privacy of the home.

The extent to which a state may regulate such expression is "dependent upon a showing that substantial privacy interests [of others] are being invaded in an essentially intolerable manner" ... [T]he privacy interest of a listener in the privacy of his home will be accorded greater protection, along with the commensurate restrictions on unwanted discourse, than would be permitted in a public forum.

People v. Taravella, 133 Mich.App. 515, 350 N.W.2d 780, 783 (1984) (quoting Cohen v. California, 403 U.S....