We are asked to determine whether the Michigan statute proscribing the malicious use of telephone and telegraph services, MCL 750.540e; MSA 28.808(5), is unconstitutionally overbroad and vague. The question presented is of first impression and comes to us on the following fаcts.
On September 8, 1980, defendant was charged in the 37th District Court with unlawfully making obscene or harassing telephone calls, contrary to MCL 750.540e; MSA 28.808(5). Prior to trial, defendant brought a motion to quash, challenging the statute as unconstitutionally vague and overbroad. On February 19, 1981, the motion was denied. Following a bench trial, defendant was convicted and sentenced. He appealed to the circuit court, raising as the sole issue the constitutionality of the statute under which he was convicted. By order dated May 19, 1982, defendant’s conviсtion was affirmed, the circuit court finding the statute constitutionally sound. Defendant’s application for leave to appeal to this Court was denied on August 6, 1982. However, on June 30, 1983, in lieu of granting leave to appeal, the Supreme Court remanded to this Court fоr consideration as on leave granted.
The statute under which defendant was prosecuted
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added a new section (540e) to laws regulating the use of communication systems.
"(1) Any person is guilty of a misdemeanor who maliciously uses any service provided by a communications common carrier with intent to terrоrize, frighten, intimidate, threaten, harass, molest or annoy any other person, or to disturb the peace and quiet of any other person by any of the following:
"(a) Threatening physical harm or damage to any person or property in the course of a telephone conversation.
"Ob) Falsely and deliberately reporting by telephone or telegraph message that any person has been injured, has suddenly taken ill, has suffered death, or has been the victim of a crime, or of an accident.
"(c) Dеliberately refusing or failing to disengage a connection between a telephone and another telephone or between a telephone and other equipment provided for the transmission of messages by telephone, thereby interfering with any communications service.
"(d) Using any vulgar, indecent, obscene or offensive language or suggesting any lewd or lascivious act in the course of a telephone conversation.
"(2) Any person violating this section may be imprisoned for not more than 6 months, or fined not more than $500.00, or by both. An offense shall be committed under this section if the message either originates or terminates or both originates and terminates in this state and may be prosecuted at the place of origination or termination.”
Defendant аrgues that the statute violates the state and federal constitutions in two respects: first, that the statute is overbroad in that it en *519 compasses constitutionally protected speech and conduct within its scope and, second, that the statutory language utilized to describe the proscribed speech is vague and therefore fails to give fair notice of the proscribed activity. This challenge to the statute proscribing the malicious use of services provided by a communications common cаrrier represents a question of first impression in this state.
Constitutional guarantees of free speech set limits upon the extent to which states may punish or criminalize the use of words or language.
Chaplinsky v New Hampshire,
Does the statute impermissibly include constitutionally protected speech and conduct within its proscriptions? When faced with an overbreadth challenge to a statute which regulates in the area
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of the First Amendment, it is important for the reviewing court to look to the statute to determine whether it regulates only spoken words, rights of association or communicative conduct.
Broadrick v Oklahoma,
"But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an еxception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech’ toward conduct and thаt conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that eifect — at best a prediction— cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute аgainst conduct that is admittedly within its power to proscribe. Cf. Alderman v United States,394 US 165 , 174-175; [89 S Ct 961 , 966-967;22 L Ed 2d 176 ] (1969). To put the matter another way, particularly 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.”
While Michigan’s misuse of communications service statute does involve a speech component, we believe that the statute clearly establishes sanctions for conduct, as opposed to рure speech. The terms of the statute are not directed at the restric *521 tion of the communciation of thoughts or ideas but are aimed at the regulation of specific conduct: the malicious use of communicative services. Thus, we will not invalidatе this conduct-oriented criminal statute unless the overbreadth is not only real, but substantial as well.
Do telephone calls by an angry parent to a student with failing grades, by a dissatisfied consumer or by a disgruntled constituent, if accompanied by language thought to be "offensive” by the recipient of the call, subject the caller to criminal sanctions under the statute? In each case, defendant claims, the caller’s exercise of his constitutional right of free speech might "annoy”, "frighten” or be considered "obscene” or "harassing” by the listener. Thus, under defendant’s interpretation of the statute, it is the listener’s perception or characterization of the nature of the call which would control. We disagree. The statute clearly provides that the focus is on the caller; it is the malicious intent with which the transmission is made that establishes the criminality of the conduct. See,
e.g., Constantino v State,
243 Ga 595;
Given the substantial interest of the state in protecting the privacy of its citizens from unwanted intrusions and the limiting requirements of the statute that the caller must maliciously use a communications service with the requisite intent, we perceive no real and substantial over-breadth problem. The statute is not substantially overbroad and to the extent that an overbreadth problem should arise, the appropriate remedy is to *522 handle such cases on an individual basis to prevent any restriction on constitutionally protected speech rather than striking down in toto a statute prohibiting constitutionally unprotected conduct. Broadrick, supra.
In conjunction with his claim that the intent requirement cannot "save” the overbroad statute, defendant relies on
Miller v California,
We find that the words employed in the statute are sufficient to provide an individual with fair notice of the conduct which is proscribed. Precision is not rеquired; due process is satisfied if the statutory language conveys a sufficiently detailed warning when measured by common understanding and practice.
United States v Petrillo,
Notwithstanding defendant’s claims to the contrary, we find that the intent requirement of the statute applies to the conduct with which he was charged. Defendant asserts that the use of the *523 disjunctive "or” prior to the last clause in section (1) indicates that the Legislature created two separate and distinct offenses: one requiring the specific intent to terrorize or annoy and the other based on the use of a communication service which disturbs another’s peace and quiet through the use of offensive language. We will not read the statutory language in such a tortured manner to subvert the clear import of the language utilizеd.
General rules of statutory construction require that each word, phrase and clause be construed in a manner which will give effect to each and render none nugatory.
People v Malachi White,
Finally, we find defendant’s reliance on
State v Keaton,
371 So 2d 86 (Fla, 1979);
Walker v Dillard,
523 F2d 3 (CA 4, 1975);
Radford v Webb,
We note, however, that other jurisdictions which have statutes which include an intent requirement similar to that included in Michigan’s malicious use of service statute have uniformly rejеcted constitutional attacks such as those launched by defendant. For further discussion on this issue see the annotations at 95 ALR3d 411 and 50 ALR Fed 541. The common theme of the statutes in those jurisdictions is that the statutes were aimed at the regulation of conduct, the use of tеlephone services, and not the suppression of speech, expression or ideas. The Court in
Baker v State,
16 Ariz App 463;
In conclusion, Michigan’s malicious use of ser *525 vice statute, MCL 750.540e; MSA 28.808(5), is not unconstitutionally vague or overbroad. The state has a substantial interest in protecting the privacy interests of its citizens from the unwanted intrusion of verbal abuse. This interest is afforded greater constitutional protection within the private, as opposed to public, sector. Cohen, supra. The statute at issue is geared toward specific conduct and includes a requirement that the caller act with specific intent. Thus, we hold that MCL 750.540e; MSA 28.808(5) is constitutionally sound and affirm the decision below.
Affirmed.
Notes
Specifically, defendant’s conduct in repeatedly calling a female salesperson at a furniture store and offering her $500 if he could "eat [her] pussy” falls within the purview of MCL 750.540e(1)(d); MSA 28.808(5)(1)(d).