City of Fargo v. Roehrich, 963 N.W.2d 248

Fargo charged Dennis Roehrich under Fargo Mun. Code § 10-0322 for harassment after he made hundreds of telephone calls and left over 120 voicemails for three Fargo police officers over ~2 years. Many messages contained profanity, name-calling, and accusations; most did not request return calls or discuss the underlying complaint.
Roehrich initially contacted officers about his son’s accident, traffic ticket, and an alleged officer perjury; officers investigated and told him there was no wrongdoing.
Officers repeatedly told Roehrich to stop calling; the City sent a cease-and-desist letter in October 2018; Roehrich continued calling and at times said he wanted to be charged so he could continue.
Roehrich was tried by jury in district court; he moved orally to dismiss at close of the City’s case arguing the ordinance was vague and his speech was First Amendment protected; the motions were denied and the jury convicted him of harassment; imposition of sentence was deferred.
Roehrich appealed, arguing (1) the ordinance is unconstitutionally vague (facially and as applied) and (2) his calls are protected speech under the First Amendment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness (facial) — does § 10-0322 give fair warning and standards?	City: ordinance includes a specific intent element (intent to frighten or harass) and uses commonly understood terms; intent element supplies sufficient guidance to avoid vagueness.	Roehrich: phrase "no purpose of legitimate communication" is undefined and subjective, so ordinance is void for vagueness.	Court: statute is not facially vague; specific intent plus ordinary meaning of "legitimate" supplies adequate notice and minimum enforcement standards.
Vagueness (as-applied) — does application to Roehrich violate due process?	City: factual record (hundreds of calls, cease-and-desist, repeated warnings, obscene/harassing voicemails) shows prohibited conduct.	Roehrich: some calls were legitimately aimed at complaints about his son; unclear when communication became harassment.	Court: not vague as applied — evidence supports that later calls had no legitimate purpose and were intended to harass.
First Amendment — are the calls protected speech?	City: speech integral to harassment/ongoing wrongdoing is not protected; defendant’s conduct falls into that exception.	Roehrich: calls were attempts to communicate grievances about police conduct and thus protected criticism.	Court: speech unprotected — where speech is integral to criminal conduct (repeated, intentional harassment after warnings and cease-and-desist), First Amendment does not shield defendant.

Screws v. United States, 325 U.S. 91 (1945) (specific intent requirement can cure vagueness concerns)
Grayned v. City of Rockford, 408 U.S. 104 (1972) (due process vagueness doctrine: fair warning and protection against arbitrary enforcement)
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (speech integral to criminal conduct is not protected)
Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (criminal acts using speech are not categorically protected)
United States v. Stevens, 559 U.S. 460 (2010) (recognition of limited, well-established exceptions to First Amendment protection)
State v. Tibor, 373 N.W.2d 877 (N.D. 1985) (definition and test for unconstitutional vagueness)
State v. Ness, 774 N.W.2d 254 (N.D. 2009) (two-part vagueness inquiry: minimum guidelines for enforcers and fair warning for reasonable person)
State v. Bornhoeft, 770 N.W.2d 270 (N.D. 2009) (speech insulting police may be protected absent accompanying threatening or harassing conduct)