Thorne v. Bailey

• Decision Date: 19 July 1988
• Docket Number: No. 86-7697,86-7697
• Citation: 846 F.2d 241
• Parties: Hillery C. THORNE, Jr., Petitioner-Appellant, v. Robert BAILEY, Sheriff; Alfred E. Ferguson, Judge; Lawrence Egnor, Judge, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 241

846 F.2d 241

Hillery C. THORNE, Jr., Petitioner-Appellant, v. Robert BAILEY, Sheriff; Alfred E. Ferguson, Judge;

Lawrence Egnor, Judge, Respondents-Appellees.

No. 86-7697.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 6, 1988.

Decided May 5, 1988.

Rehearing and Rehearing En Banc Denied July 19, 1988.

Christopher Lee Varner, New York City, for petitioner-appellant.

Jill Leone Miles, Asst. Atty. Gen., for respondents-appellees.

Before WIDENER and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Hillery C. Thorne, Jr., appeals the district court's order denying his pro se habeas corpus petition. The court rejected, inter alia, Thorne's claims that his misdemeanor conviction under W.Va.Code Sec. 61-8-16(a)(4) (1984) ¹ violated his First Amendment rights. The court held that conduct, not speech, was criminalized by the statute and since his conviction was based on his actions, not his words, the statute is neither unconstitutionally vague nor overbroad. The court also held the statute constitutional as applied to Thorne. We affirm.

I

Thorne was a student at Marshall University ("University") intermittently from 1977 through 1983. Throughout much of this period, Thorne had encountered various difficulties at the University, culminating in a civil rights suit against the University and its officials for denying him access to the campus or library as a result of his protests against apartheid policies in South Africa. That case resulted in a monetary settlement and a consent decree ordering that Thorne be treated fairly by the University in the future. ²

By January 1983, Thorne was in academic trouble and had developed a record of disciplinary violations. Following a disruptive incident in the office of an administrator, a hearing was held to determine if Thorne should be banned from campus. Although Thorne was notified of his suspension hearing by certified mail, he failed to appear. Thorne was subsequently suspended and not allowed to register for classes until January 1984.

Following his suspension, Thorne began telephoning various University administrators. He called these officials during business hours, after hours and at the individuals' homes. Frequently he would allow the telephone to ring for fifteen to twenty minutes. Although Thorne made several telephone calls, the University specifically documented only five.

At trial before ajury in Cabell County, West Virginia, the officials who received calls from Thorne were presented as witnesses. Each explained a similar pattern for the calls. Thorne would begin the conversation under the pretext that he wanted an explanation for why he could not register for classes. Then his language and tone became harassing. Thorne referred to those he called, as well as other officials at the University, as "pigs," "racists pigs," "bigot" and "local trash." Thorne referred to Dr. Robert Hayes, who had resigned shortly before as President of the University, as "the head hog." Thorne also stated on one occasion that "the law has a way of catching up with people and crushing them."

Thorne testified and admitted making the calls and using the aforementioned harassing language. He testified that he did not feel he had been treated fairly and the purpose of his calls was to get the details of his status.

At the conclusion of testimony the court charged the jury, in part:

The court instructs that if you find from the evidence beyond a reasonable doubt that the defendant, [Hillery Thorne], made repeated telephone calls during the time period set forth in the indictment to employees of Marshall University, and that a conversation ensued, and that such telephone calls were made by the defendant with the intent to harrass [sic] persons at the called number, then you may find the defendant guilty as charged in indictment.

The jury found Thorne guilty and the court sentenced him to six months in the Cabell County Jail.

The conviction was upheld by an equally divided vote of the Supreme Court of Appeals of West Virginia. State v. Thorne, 333 S.E.2d 817 (W.Va.), cert. denied, 474 U.S. 996, 106 S.Ct. 413, 88 L.Ed.2d 363 (1985).

II

A.

We agree with the plurality opinion of the Supreme Court of Appeals of West Virginia and with the district court that W.Va. Code Sec. 61-8-16(a)(4) prohibits conduct and not protected speech. The government has a strong and legitimate interest in preventing the harassment of individuals. The telephone, a device used primarily for communication, presents to some people a unique instrument through which to harass and abuse others. Because the telephone is normally used for communication does not preclude its use in a harassing course of conduct. As the West Virginia court stated:

Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech. The statute prohibits only telephone calls made with the intent to harass. Phone calls made with the intent to communicate are not prohibited. Harassment, in this case, thus is not protected merely because it is accomplished using a telephone.

333 S.E.2d at 819.

Unfortunately, we are without legislative history to guide our interpretation of this statute. The requirement of a specific intent to harass, however, clearly indicates what the West Virginia legislature sought to criminalize. The jury was charged appropriately on intent and returned a guilty verdict. We must conclude, therefore, that the jury was likewise convinced that Thorne's calls were intended to harass.

Congress has enacted a federal telephone harassment statute, 47 U.S.C. Sec. 223(a)(1)(D) (1982) ³ which is practically identical to the statute at issue in this case. While the federal statute uses the words "solely to harass" in place of the words found in the West Virginia statute "with intent to harass," the Third Circuit construed this as a narrow intent requirement in reaching the conclusion, as we do here, that the statute does not preclude mere communication. United States v. Lampley, 573 F.2d 783 (3d Cir.1978). We find the Third Circuit's opinion upholding the constitutionality of the federal telephone statute persuasive as to the constitutionality of the remarkably similar West Virginia statute.

B.

Given our construction of Sec. 61-8-16(a)(4), it is clearly constitutional as applied to Thorne. Even if the statute does stand in the shadow of First Amendment protection, however, we hold that Sec. 61-8-16(a)(4) is not overly broad. "Where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973).

The statute is clearly not a censorial statute, directed at any group or viewpoint. It seeks to protect citizens from harassment in an even-handed and neutral fashion. Indeed, the statute requires no inquiry into the content of the telephone conversation. Moreover, as we noted earlier, West Virginia has a broad, legitimate interest in protecting its citizens from harassment, especially when harassment is accomplished by use of the telephone. In light of the limited application of the overbreadth doctrine in the context of criminal laws sought to be applied to constitutionally unprotected conduct, ⁴ we conclude that the statute is not only constitutional as applied to Thorne, but is also not so broadly worded as to be facially overly broad.

III

The Petition Clause of the First Amendment guarantees "the right of the people ... to petition the Government for a redress of grievances." Historically rooted in the 1689 Bill of Rights exacted from William and Mary, the "right to petition is cut from the same cloth as the other guarantees of [the First] Amendment." McDonald v. Smith, 472 U.S. 479, 482, 105 S.Ct. 2787, 2789-90, 86 L.Ed.2d 384 (1985). McDonald clearly states that the Petition Clause does not enjoy a special status among the First Amendment guarantees, since it "was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble." 472 U.S. at 485, 105 S.Ct. at 2791. Since it is plainly contrary to McDonald, we reject Thorne's argument that the Petition Clause enjoys a "preferred place" among First Amendment freedoms.

We also reject Thorne's argument that he cannot be properly convicted of a crime for exercising the right to petition. ⁵ The Petition Clause does not provide blanket immunity for unlawful conduct. See Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). If the West Virginia statute which Thorne complains of were broadly drawn, so as to be general and all-inclusive, this would be a different case. See Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963). Rather, this statute is "narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State." Cantwell v. Connecticut 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). Since Thorne does not argue that the statute burdens his right to petition in a fashion different from his right to free speech, our constitutional analysis is essentially the same as we exposited in Part II B above and we will not repeat it here. ⁶ Therefore, Thorne's Petition Clause argument also fails.

IV

We conclude that W.Va. Code Sec. 61-8-16(a)(4) violates neither the Free Speech Clause nor the Petition Clause, since the statute is narrowly drawn to effect the legitimate interest of government in protecting its citizens from harassing conduct. Accordingly, the judgment of the district court is

AFFIRMED.

BUTZNER, Senior Circuit Judge, dissenting:

An equally divided Supreme Court of Appeals of West Virginia affirmed the conviction and...