On Petition for Writ of Certiorari to the United States Court of
Appeals for the Second Circuit.
The petition for a writ of certiorari is denied.
Justice WHITE, dissenting.
Under Connecticut law, a person is guilty of a misdemeanor when
"with intent to harass, annoy or alarm another person, he makes a
telephone call, whether or not a conversation ensues, in a manner
likely to cause annoyance or alarm." Conn.Gen.Stat. 53a-183(a)(3)
(1975 rev.). Petitioner was convicted of violating this statute
after she made a telephone call to a woman with whom she had some
personal quarrel. Following an unsuccessful direct appeal in the
state courts,1 petitioner brought a federal habeas corpus action
arguing that under the First and Fourteenth Amendments the statute
was unconstitutionally overbroad. The Court of Appeals for the
Second Circuit found no constitutional infirmity. The petition for
certiorari challenges that judgment.
To be sure, a State has a valid interest in protecting its
citizens against unwarranted invasions of privacy. Rowan v. Post
Office Department,
397 U.S. 728 (1970). See
generally, Note, Give Me a Home Where No Salesmen Phone: Telephone
Solicitation and the First Amendment, 7 Hastings Const.L.Q. 129
(1979). This is especially true when unprotected speech, such as
obscenity or threats of physical violence, is involved. But it is
equally clear that a State may not pursue these interests by unduly
infringing on what would
Page 449 U.S.
1023 , 1024
otherwise be protected speech. It is therefore critical to
recall that speech may be "annoying" without losing its First
Amendment protection 2 and that the Connecticut statute on its face
criminalizes any telephone call that annoys and was intended to do
so. It is not difficult to imagine various clearly protected
telephone communications that would fall within the ban of the
Connecticut statute. [
Footnote
3] As such it is fairly arguable that the statute is
substantially overbroad and hence unconstitutional. Lewis v. New
Orleans,
415 U.S.
130 (1974); Gooding v. Wilson,
405 U.S. 518 (1972).4
Beyond the obvious tension between our prior cases and the
judgment below is the difference in opinion among those courts that
have considered constitutional challenges to similar state
statutes. Contrary to the decision reached by the
Page 449 U.S.
1023 , 1025
Court of Appeals in this case, state appellate courts have
invalidated substantially equivalent provisions as being
unconstitutionally overbroad. People v. Klick,
66 Ill. 2d
269, 5 Ill.Dec. 858,
362 N.E.2d
329 (1977) ( invalidating statute making it a crime for anyone
who "[w]ith intent to annoy another, makes a telephone call,
whether or not conversation thereby ensues"); State v. Dronso, 90
Wis.2d 149,
279
N.W.2d 710 (Ct.App.1979) ( same). Another court has invalidated
a like statute on the grounds that it was unconstitutionally vague.
State v. Blair, 287 Or. 519,
601 P.2d
766 (1979) (statute made it a crime to communicate by telephone
"in a manner likely to cause annoyance or alarm" to the receiver).
On the other hand, various state courts, like the Connecticut court
in this case, have rejected overbreadth challenges to telephone
harassment statutes. See, e. g., State v. Elder,
382 So. 2d 687
(Fla.1980) (statute prohibiting a person from making a telephone
call "whether or not conversation ensues, without disclosing his
identity and with intent to annoy, abuse, threaten, or harass any
person at the called number"); Constantino v. State, 243 Ga. 595,
255 S.E.2d 710
(1979) (prohibiting repeated telephoning "for the purpose of
annoying, harassing or molesting another or his family"). See
generally United States v. Lampley,
573 F.2d
783 (CA3 1978); People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d
968 (1977). The above cases demonstrate that the state courts are
not in agreement concerning application of First Amendment
principles in this area of the law.
The foregoing suggests that even if the Court is of the view
that the judgment below is correct, there is sufficient reason to
grant certiorari and issue a judgment to this effect. Accordingly,
I dissent.
Footnotes
Footnote 1 On direct appeal
in the state courts, the First Amendment argument presented here
was raised in and rejected by the Appellate Session of the Superior
Court, State v. Anonymous, 34 Conn.Supp. 689, 389 A.2d 1270, appeal
denied, 174 Conn. 803, 382 A.2d 1332 (1978).
Footnote 2 Norwell v.
Cincinnati,
414 U.S.
14 ( 1973); Coates v. Cincinnati,
402 U.S. 611, 615-616,
1689 (1971). See Terminiello v. Chicago,
337 U.S. 1 (1949).
Footnote 3 For example, the
Supreme Court of Illinois found that a similar statute risked
criminal prosecution for a variety of situations involving
protected speech.
"Conceivably, this section could make
criminal a single telephone call made by a consumer who wishes to
express his dissatisfaction over the performance of a product or
service; a call by a businessman disturbed with another's failure
to perform a contractual obligation; by an irate citizen, perturbed
with the state of public affairs, who desires to express his
opinion to a public official; or by an individual bickering over
family matters." People v. Klick,
66 Ill. 2d
269, 274, 5 Ill.Dec. 858, 860-861,
362
N.E.2d 329, 331-332 (1977).
Footnote 4 Given that the
overbreadth may be substantial, petitioner has standing to raise
the First Amendment claim even if the words she used were
unprotected threats of violence. Broadrick v. Oklahoma,
413 U.S. 601 (1973).
Furthermore, the case was submitted to the jury under an
instruction which would have permitted a conviction if petitioner
was found to have made either an annoying or threatening call with
the requisite intent. The general verdict did not reveal on what
ground the conviction rested. Even assuming that the facts could
have supported a guilty verdict based on petitioner's unprotected
speech, petitioner may have been convicted for making a merely
annoying communication.
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