State v. Northwest Passage, Inc.

• Decision Date: 26 October 1978
• Docket Number: No. 45099,45099
• Citation: 90 Wn.2d 741,585 P.2d 794
• Parties: , 4 Media L. Rep. 1894 The STATE of Washington, Petitioner, v. NORTHWEST PASSAGE, INC., Respondent.
• Court: Washington Supreme Court

Page 741

90 Wn.2d 741

585 P.2d 794, 4 Media L. Rep. 1894

The STATE of Washington, Petitioner, v. NORTHWEST PASSAGE, INC., Respondent.

No. 45099.

Supreme Court of Washington, En Banc.

Oct. 26, 1978.

David S. McEachran, Pros. Atty., Whatcom County Superior Court, Bellingham, for petitioner.

American Civil Liberties Union of Washington, Thomas Beierle, Seattle, John H. Anderson, Bellingham, for respondent.

DOLLIVER, Justice.

Defendant Northwest Passage, Inc., publisher of the newspaper Northwest Passage, was convicted of violating RCW 9.26A.090 which proscribes publication of information regarding coding of telephone company credit card charge numbers. Defendant was fined $1,000 with the fine suspended on condition it publish an inventory of community resources in Whatcom County to be distributed throughout the county and pay costs. Defendant appealed and the conviction was reversed by the Court of Appeals which found the statute unconstitutional. See State v. Northwest Passage, Inc., 17 Wash.App. 685, 564 P.2d 1188 (1977). We granted petition for review.

In the March 17-30, 1975, issue of its newspaper, defendant published an article divulging information which educated the reader in the method used by the telephone company to establish credit card numbers for its subscribers. The article further advised readers of techniques to employ so as to escape detection when placing a call with a falsely created number. A fair reading of the article is that its sole purpose was to tell readers how to defraud the telephone company and how to avoid being caught.

RCW 9.26A.090 provides, in pertinent part:

Every person who publishes . . . the numbering or coding which is employed in the issuance of telephone company credit cards, with the intent that it be used or with knowledge or reason to believe that it will be used to avoid the payment of any lawful charge, shall be guilty of a gross misdemeanor.

The Court of Appeals concluded persons interested in systems of secret writing may be deterred from publishing their knowledge due to fear of violating RCW 9.26A.090, and thus the statute is overbroad and so proscribed by the First Amendment. We disagree and reverse.

In interpreting the First Amendment, the United States Supreme Court has employed a balancing test in freedom of speech and freedom of the press cases. See United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Similarly, a balancing test has been used by this court. As we stated in State v. Oyen, 78 Wash.2d 909, 919, 480 P.2d 766, 772 (1971), Vacated on other grounds, 408 U.S. 933, 92 S.Ct. 2846, 33 L.Ed.2d 745 (1972):

(I)t is incumbent upon the court to weigh the purported impairment of speech engendered by the statutory provision against the importance of the societal interest sought to be vindicated by the statute, as well as the nature and extent of the threat which the statutorily forbidden conduct poses to that interest. And, too, the alternatives available to the state and the claimant must be evaluated, I. e., whether the state may achieve its ends in a less restrictive manner and/or the claimant effect his communication in a way less detrimental to the societal interest.

We reaffirm that approach and apply it to this case. Following Oyen, we consider four questions: First, how broad is the purported impairment of speech? Only the publication of individual credit card numbers and the secret code by which they are derived is forbidden by RCW 9.26A.090. The narrow restrictions on speech imposed by the statute are de minimus and only coincidental to the limited purpose of the statute. No political speech such as criticism, comment and public discussion regarding operations and practices of the telephone company falls within the statute's ambit. Nor does the statute bar the kind of "frequently unpleasant" free speech of "little or no value" which the First Amendment protects as it "enter(s) the marketplace of ideas, threatening the quality of our social discourse and, more generally, the serenity of our lives." Young v. American Mini Theatres, Inc., 427 U.S. 50, 88, 96 S.Ct. 2440, 2461, 49 L.Ed.2d 310 (1976), per Stewart, J., dissenting. See also Brandenburg v. Ohio, 395 U.S. 444, 23 L.Ed.2d 430, 89 S.Ct. 1827 (1969).

Second, what is the societal interest sought to be protected? The purpose of the statute is to prevent persons from defrauding the telephone company through use of false credit card numbers. Testimony adduced at trial indicated such calls resulted in a $70,000 revenue loss to the company during a 9-month period in 1975, a loss which must be made up by the ratepayer. Prevention of this fraud is a sufficient societal interest to support the legislation in question.

Third, what threat to the societal interest is posed by the proscribed conduct? Defendant asserts no threat to the societal interest is posed by publication of the codes because the evidence shows no increase in the number of fraudulent credit calls after publication of the code in its paper. However, we must look beyond the individual publication prosecuted herein to determine the nexus between the proscribed conduct and the societal interest. That widespread publication of the secret code would threaten an increase in the abuse of the telephone credit system is well-founded in logic and hardly requires...