Lead Opinion
Undеr Penal Law § 240.25 (2), the use of "abusive” language with the intent to "harass” or "annoy” another person is a violation punishable by a 15-day imprisonment. Because the statute, on its face, prohibits a substantial amount of constitutionally protected expression, and because its continued existence presents a significant risk of prosecution for the mere exercise of free speech, we hold section 240.25 (2) to be invalid for overbreadth, under both the State (art I, §8) аnd Federal (1st & 14th Amends) Constitutions.
The relevant facts are few and undisputed. Complainant and her son, both mentally retarded, were walking down a public street in the Town of Norfolk. Defendаnt came to her doorway with a friend and, while facing the street, referred to complainant as a "bitch” and to her son as a "dog”, and said that she would "beat the crap out of [the complainant] some day or night on the street”. With that, complainant fled in tears and reported the incident to authorities. Defendant had been aware of the complainant’s mental limitations and had, on a prior occasion, been warned by a police officer about arguing with her again.
Town Court found defendant guilty of harassment in violation of subdivisions (1) and (2) of Penal Law § 240.25
To be sure, calling another a "bitch” or a "dog” — the conduct allegedly constituting the violation of section 240.25 (2) here — is "abusive” in the ordinary sense of that term. The common dictionary definition of "abusive”, as "coarse”, "insulting” and "harsh”,
Defendant’s words do not, however, fall within the scope of constitutionally prescribable expression, which is considerably narrower than that of the statute. Speech is often "abusive”— even vulgar, derisive, and provocative — and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that (see, Lewis v City of New Orleans,
At the least, any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace (see, Lewis v City of New Orleans, supra, at 133; Gooding v Wilson,
Moreover, we decline to incorporate such limitations into the statute by judicial construction. While it is argued that the statute’s unconstitutional overbreadth might be cured by restricting its reach to "fighting words” or other words which, by themselves, inflict substantial personal injury, such a "cure” would, indeed, be fraught with significant problems of its own. First, although, to be sure, a statute ought normally to be saved by construing it in accord with constitutional requirements (see, e.g., People v Liberta,
Second, and equally critical to our decision, construing the statute as limited to certain constitutionally proscribable speech would likely result in transforming an otherwise over-broad statute into an impermissibly vague one; the statutory language would signify one thing but, as a matter of judicial decision, would stand for something entirely different. Under those circumstances, persons of ordinary intelligence reading section 240.25 (2) could not know what it actually meant (see, People v Bright,
Indeed, this court’s past decisions under section 240.25 (2), overturning convictions for mere vulgar speech on the ground that such expression did not come within the meaning of the statute (see, e.g., People v Carvelas,
Defendant’s conviction under section 240.25 (1) must also be reversed. There is nothing in the record demonstrating that defendant’s statement that she would "beat the crap out of-[complainant] some day or night in the street” was either serious, should reasonably have been taken to be serious, or
Accordingly, the order of County Court should be reversed, and the information dismissed.
Notes
. The New York Constitution provides an independent basis for our holding; we have little doubt, however, that Penal Law § 240.25 (2) runs afoul of the Federal Constitution as well.
. Penal Law § 240.25 provides in pertinent part:
"A person is guilty of harassment when, with intent to harass, annoy or alarm another person:
"2. In a public place, he uses abusive or obscene language, or makes an obscene gesture” (emphasis added).
. See, e.g., Webster’s New Twentieth Cеntury Dictionary of the English Language Unabridged, Second Edition.
Concurrence Opinion
(concurring). I agree with the majority that the evidence was insufficient to sustain defendant’s conviction under Penal Law § 240.25 (1), (see, majority opn, at 53-54). The same must be said, however, with respect to the charge that defendant committed harassment by using abusive or obscene language (Penal Law § 240.25 [2]). In case after case arising under Penal Law § 240.25 (2), we have held that the statute, despite its broad language, did not apply to language and gestures that can only be described as "abusive or obscene”, but which are nonetheless constitutionally protected (see, e.g., People v Bacon,
Ignoring these precedents, however, the majority holds that defendаnt’s words "clearly fall within the facial scope of the statute” (majority opn, at 51) and finds the statute not amenable to a limiting construction. Thus, the majority declares the statute invalid. Because I believe that we can and should save the statute, as we have done in the past, with an interpretation that would avoid the constitutional problems, I concur in result only.
It is an elementary maxim of constitutional decision making that "[n]o statute should be declared unconstitutional if by аny reasonable construction it can be given a meaning in harmony with the fundamental law.” (People ex rel. Simpson v Wells,
The strong presumption of constitutionality enjoyed by an act of the Legislature rests in part on an appropriate measure of respect for a coordinate branch of government, including recognition that the judicial branch does not have a monopoly on constitutional values. Thus, "[i]t must be assumed that the Legislature intended to enact a statute which was in harmony with the United States Constitution and the Constitution of the State of New York” (People v Epton, supra, at 505). In addition, separation of powers principles and democratic ideals caution against wholesale nullification of the expressed will of the most representative branch. To the extent that such an expression does not transgress constitutional boundaries, it should be given effect (see, People v Liberta, supra, at 171).
From these principles springs our obligation to construe a statute, if possible, to save it from constitutional infirmities. The majority asserts, however, that no such construction is permissible unless the saving limitation is "one which the court 'may reasonably find implicit’ in the words used by the Legislature” (majority opn, at 52 [citing People ex rel. Morriale v Branham,
Thus, the proper approach is not, as the majority suggests, to adоpt á saving construction only if the constitutional limitations are suggested by the statutory language. Instead, those limitations are deemed to be implicit in the statute unless the statutory language expressly negates such an implication. The latter, proper approach gives meaning to the presumption of
Here, for example, if we assume, as we must, that the Legislature intended to enact a constitutional provision, and acknowledge the expressed will of the Legislature to proscribe "abusive or obscene language” intended to "harass, annoy or alarm”, then an interpretation of the statute that would proscribe such language within constitutional limits would be most consistent with the legislative purpose. Certainly, such an interpretation is more consistent with the legislative purpose than is a decision to nullify the statute altogether.
Furthermore, it would require no "wholesale revision of the Legislature’s enactment” (majority opn, at 53) to accommodate the constitutional limitations. The statute’s requirement of an "intent to harass, annoy, or alarm” need only be equated with an intent to "inflict injury or tend naturally to evoke immediate violence or other breach of the peace”, to use the majority’s test for unprotected speech (majority opn, at 52). This is no great stretch. If we are to take seriously our obligation to construe a statute to avoid constitutional infirmities, then we must be willing to incorporate constitutional limitations into language that might have a broader scope if we were to rely only on "dictionary definitions” (cf., majority opn, at 51).
Indeed, in the past we have gone to greater lengths to defend a statute against a constitutional challenge. In People v Epton (supra, at 505-506), for example, despite definitive precedent from this court to the contrary (see, People v Gitlow,
Thus, it cannot be a barrier to a limiting construction in this case that "the language of section 240.25 (2) [does not] suggest a limitation to violence-provoking or substantial injury-inflicting utterances.” (Majority opn, at 52-53.) The very purpose of construing a statute in accord with constitutional requirements is to supply limitations not overtly provided by the Legislature. Obviously, in Epton and Dollar, neither the statutory language nor the legislative history suggested the limitations imposed by the Constitution; the earlier cases established as much, but we nonetheless incorporated those limitations as they evolved. According to the majority’s formula, however, a limiting construction would only be available when the Legislature has already provided the limitations — i.e., when there is no need for it. Such reasoning creates much more than a limited exception to our duty to construe statutes in accord with constitutional limitations; it abrogates that duty entirely.
Nor would our incorporation of such limitations create a vagueness problem. The suggestion that it would, because "the statutory language would signify one thing but, as a matter of judicial decision, would stand for something entirely different” (majority opn, at 53) is no less than a suggestion that a limiting construction can never save a criminal statute in the First Amendment overbreadth context.
The majority’s concern appears to be that judicial decisions do not provide adequate notice to persons of ordinary intelligence and presumably that those persons would continue to be guided by the overbroad statute.
Assuming this to be true, it would not create a problem with the kind of notice that the vagueness doctrine addresses, that is, "fair warning that * * * contemplated conduct constitutes a crime.” (Bouie v City of Columbia,
Furthermore, our citizens are chargeable with knowledge of our limiting constructions of statutes, even those occurring subsequent to the acts in question (Winters v New York, supra, at 514; People v Epton, supra, at 506; but cf., Bouie v City of Columbia, supra [defendants not chargeable with knowledge of subsequent expansion of statute]). Thus, the United States Supreme Court routinely addresses claims of statutory vagueness and overbreadth in terms of the statute as definitively glossed by the State courts (see, Wainwright v Stone, supra, at 22-23; Chaplinsky v New Hampshire,
Indeed, the Chaplinsky case by itself thoroughly answers the majority’s concerns. The New Hampshire statute at issue in that case was remarkably similar to Penal Law § 240.25 (2). It provided that " 'No person shall address any offensive, derisive or annoying word to any other person * * * with intent to deride, offend or annoy him’ ” (see, Chaplinsky v New Hampshire, supra, at 569). As the case cаme to the Supreme Court, however, the statute had been given a limiting construction by the New Hampshire Supreme Court so that it proscribed no words " 'except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.’ ” (Id., at 573.) Evaluating the statute in light of this construction, the United States Supreme Court found it neither overbroad nor unconstitutionally vague (id., at 573-574). Thus, what the majority claims is impossible to do in this case was aсcomplished by the New Hampshire Supreme Court and was given the approval of the United States Supreme Court in Chaplinsky.
While there may be some doubt as to whether the compara
In theory, of course, the effort to cure overbreadth problems may create vagueness problems (Tribe, American Constitutional Law § 12-29 [2d ed]). If, for example, a court were to limit the reach of an overbroad statute by declaring that it is inapplicable to constitutionally protected conduct, without providing any standard for determining what is protected, the statute as construed would suffer from vagueness (id.). But such a failure reflects badly on the technician, not the technique. Engrafting a carefully defined "fighting words” limitation on Penal Law § 240.25 (2), as the New Hampshire court did with the statute in Chaplinsky, presents no such problems.
Nor does the successful invocation of the First Amendment overbreadth doctrine require nullification of the statute. True, that doctrine is uniquely associated with facial invalidation of statutes (see generally, Note, The First Amendment Over-breadth Doctrine, 83 Harv L Rev 844, 845-846, 852-858 [1970]), but that circumstance is largely attributable to principles of Federalism that have no application to State courts.
Because the Federal courts, including the Supreme Court, have no power to authoritatively construe State statutes, where a State statute comes before the Supreme Court broadly construed by the State courts, the Supreme Court is bound by that interpretation of State law and cannot substitute a saving construction (Schad v Mount Ephraim,
Even when a State statute is involved in Federal court, facial invalidation (that is, suspension of enforcement pending proper limitation) is improper if the parties challenging the statute are ones who have engaged in, or desire to engage in, protected activity that the statute purports to punish (Brockett v Spokane Arcades, supra, at 504). In such a case, there is "no want of a proper party to challenge the statute, no concern that an attack on the statute will be unduly delayed or protected speech discouraged. The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact.” (Id.)
Thus, facial invalidation is only compelled by the over-brеadth doctrine when the statute is successfully challenged by one whose own activity is unprotected (and who would not therefore benefit from a limiting construction) and when the reviewing court lacks authority to narrow the scope of the statute to constitutional limits. Neither circumstance is present here.
Accordingly, neither the overbreadth doctrine itself nor the majority’s concerns about vagueness foreclose us from trimming the statute to its constitutional limits. Whether the statute should be voided in its entirety or saved by a limiting construction is thus governed by ordinary principles of severance (see, Brockett v Spokane Arcades, supra, at 506). The answer does not depend on whether the valid and invalid
For all of these reasons, the proper course for us to follow in this case is to give section 240.25 (2) a clear and definitive construction limiting its reach to constitutionally prescribable fighting words.
I cannot agree that it is necessary to declare section 240.25 (2) unconstitutional. Accordingly, I concur in result only.
Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Chief Judge Wachtler concurs in result only in a separate opinion in which Judge Bellacosa concurs.
Order reversed, etc.