Walker v. Dillard, No. 73-1108

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and THOMSEN; HAYNSWORTH
Citation523 F.2d 3
PartiesMary WALKER, Appellant, v. The Hon. George B. DILLARD, Judge, Municipal Court of Roanoke, Appellee.
Decision Date10 July 1975
Docket NumberNo. 73-1108

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523 F.2d 3
Mary WALKER, Appellant,
v.
The Hon. George B. DILLARD, Judge, Municipal Court of
Roanoke, Appellee.
No. 73-1108.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 5, 1974.
Decided July 10, 1975.

David G. Karro, Roanoke, Va. (Court-appointed counsel) (Henry L. Woodward, Legal Aid Society of Roanoke Valley, Roanoke, Va., on brief), for appellant.

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Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and THOMSEN, District Judge.

HAYNSWORTH, Chief Judge.

This case arises out of a telephone argument between the appellant, Mary Walker, and one of her neighbors over the behavior of Mrs. Walker's children. After the conversation Mrs. Walker was convicted in the Municipal Court for the City of Roanoke, Va., of violating Virginia Code § 18.1-238. 1 Mrs. Walker subsequently sought habeas relief in the district court 2 claiming that the statute is void for vagueness and overbreadth and that her right to a jury trial was violated by the inability of the Municipal Court to afford a trial by jury. 3 The district court dismissed the petition, 4 363 F.Supp. 921, and this appeal ensued. We conclude that Mrs. Walker could not constitutionally be convicted under Section 18.1-238 because the statute is facially overbroad. Accordingly, we reverse the decision below and order that a writ of habeas corpus issue.

We start from the proposition that the state has a legitimate interest in prohibiting obscene, threatening, and harassing phone calls, none of which are generally thought of as protected by the First Amendment. Cf. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). Nevertheless, while such activity may permissibly be punished, the proscription must not be one that unduly impinges on protected expression. E. g. Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).

One in the position of Mrs. Walker may raise the overbreadth issue even though the language she used might have been constitutionally prohibited under a narrowly and precisely drawn statute.

At least when statutes regulate or proscribe speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," * * * the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "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" * * *. This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.

Lewis v. City of New Orleans, 415 U.S. 130, 133-34, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). See also Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).

That the statute challenged here presents such a case is apparent. The

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Supreme Court of Virginia has thus far declined to place a narrowing construction on the sweeping language of Section 18.1-238, which regulates only speech. 5 On its face the statute prohibits abusive comment about third parties, curses or abuses directed at unsolicited callers, and "vulgar" or "profane" discussion of virtually everything and everyone. The statute does not reach the anonymous midnight caller who only breathes into the mouthpiece, unless repeated calls might be said to be abusive, but it makes punishable an indiscreet response from the outraged recipient of that call. An intemperate expression of understandable and wholesome indignation would be within the statute's apparent reach, but the words of many an anonymous, harassing caller would not.

Nearly every operative word of the statute is susceptible of an overbroad construction, and several have been stricken at one time or another for indefiniteness. 6 Thus, in Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), the Supreme Court acknowledged that the word "threat" must be narrowly defined in order to...

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42 practice notes
  • Staley v. Jones, No. 00-1809
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 26, 2000
    ...of the ordinance to protect 'the transcendent value to all society of constitutionally protected expression'"); see also Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975). But see Walters v. Clement, 544 F.2d 1340, 1341 (5th Cir. 1977) (per curiam) (stating that "habeas corpus is a peculiarly u......
  • Hill v. City of Houston, Tex., No. 84-2181
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 11, 1985
    ...of Probation, 632 F.2d 938, 942 n. 5 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 (1980); Walker v. Dillard, 523 F.2d 3, 6 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975). See generally M. Nimmer, supra at Sec. 45 764 F.2d at 1170 (Higgin......
  • M.S. News Co. v. Casado, No. 80-2093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 16, 1983
    ...Manns v. Commonwealth, 213 Va. 322, 191 S.E.2d 810, (1972); Walker v. Dillard, 363 F.Supp. 921 (W.D.Va.1973), rev'd on other grounds, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975). In the de novo jury trial the accused has a clean slate. Colten v. Ke......
  • Com. v. A Juvenile
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 11, 1975
    ...v. Seaver, 504 F.2d 303 (5th Cir. 1974), cert. den. app. dism. 421 U.S. 924, 95 S.Ct. 1650, 44 L.Ed.2d 83 (1975). Cf. Walker v. Dillard, 523 F.2d 3 (4th Cir While the circumstances of the cases collected above may have differed, to a large extent the epithets spoken in these cases were of t......
  • Request a trial to view additional results
42 cases
  • Staley v. Jones, No. 00-1809
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 26, 2000
    ...of the ordinance to protect 'the transcendent value to all society of constitutionally protected expression'"); see also Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975). But see Walters v. Clement, 544 F.2d 1340, 1341 (5th Cir. 1977) (per curiam) (stating that "habeas corpus is a peculiarly u......
  • Hill v. City of Houston, Tex., No. 84-2181
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 11, 1985
    ...of Probation, 632 F.2d 938, 942 n. 5 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 (1980); Walker v. Dillard, 523 F.2d 3, 6 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975). See generally M. Nimmer, supra at Sec. 45 764 F.2d at 1170 (Higgin......
  • M.S. News Co. v. Casado, No. 80-2093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 16, 1983
    ...Manns v. Commonwealth, 213 Va. 322, 191 S.E.2d 810, (1972); Walker v. Dillard, 363 F.Supp. 921 (W.D.Va.1973), rev'd on other grounds, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975). In the de novo jury trial the accused has a clean slate. Colten v. Ke......
  • Com. v. A Juvenile
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 11, 1975
    ...v. Seaver, 504 F.2d 303 (5th Cir. 1974), cert. den. app. dism. 421 U.S. 924, 95 S.Ct. 1650, 44 L.Ed.2d 83 (1975). Cf. Walker v. Dillard, 523 F.2d 3 (4th Cir While the circumstances of the cases collected above may have differed, to a large extent the epithets spoken in these cases were of t......
  • Request a trial to view additional results

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