*1 circumstances, aggra- particular these one and Under conspiracy-to-commit-robbery vated-robbery charges. may reasonably infer that the defense at- if torney, originally suggest he did not the defense But what is clear is offenses, inclusion of the lesser at least much aware of the ad- attorney very was fully supportive was of their submission Not charges. dition of those unrelated actively adding language and assisted them, object including he not did them. The inclusion of these unrelated language he additional helpfully provided lesser offenses was not the result of “mis- concerning By parties them. the time the take, oversight plain sloppiness” as [or] following were back on the record the Almanza,5 envisioned this morning, charge the final had been draft- Court ed, objected to certain prosecutor and the Appellant argues now that the additional by the That language added defense. suggested instructions that he made were language, application added after attorneys because often have to “[t]rial ag- paragraphs conspiracy to commit make judgment calls based on earlier rul- gravated robbery conspiracy to com- ings go way.”6 that did not their True mit robbery, was as follows: enough, if suggests but common sense you beyond If from the find evidence appellant thought that an ruling earlier did reasonable doubt that the Defendant is go way, surely his he have would said guilty either MURDER CON- Quite so. He did not. the reverse. From TO AGGRAVAT- SPIRACY COMMIT record, all that can glean one from the he ROBBERY, ED under the instructions fully supportive was of the notion of sub- given you, you herein but have a reason- mitting conspiracy lesser offenses of able doubt as to which of said offenses aggravated commit robbery conspira- you he then guilty, should resolve cy robbery. to commit doubt the Defendant’s favor and find comments, join majori- I With these guilty him of the lesser offense of CON- ty opinion.
SPIRACY TO COMMIT AGGRAVAT- ED ROBBERY.
If you beyond find from the evidence
reasonable doubt the Defendant is
either guilty of CONSPIRACY TO
COMMIT AGGRAVATED ROBBERY or CONSPIRACY TO COMMIT ROB- SCOTT, Appellant, Samuel BERY, under the instructions herein given you, you but have a reasonable doubt as to which of said offenses he is The STATE of Texas. guilty, you then should resolve the doubt PD-1069-09, Nos. PD-1070-09.
in the Defendant’s favor and find him guilty lesser offense of CON- Appeals Court Criminal of Texas. SPIRACY TO COMMIT ROBBERY. 6,Oct. judge After the trial overruled the State’s objection language, to this the defense said objections it had no charge. P.J., (Onion, concurring Appellant’s
5. See id. at 177 Brief at 15. dissenting). *3 Antonio, III, Flanary, H. San
Donald Appellant. D.A., Yeary,
Kevin Patrick Asst. Crim. Antonio, Horn, Jeffrey L. San State’s Van Austin, for Attorney, State.
HOLCOMB, J., opinion delivered the PRICE, WOMACK, Court, in which KEASLER, HERVEY, JOHNSON, COCHRAN, JJ., joined. appeals that two sub- court held our harassment Texas
sections of 42.07, were Penal unconstitutional- Code ly vague on their face. We reverse. County, April complainant On Bexar repeatedly charged by intoxicated, was information night, Samuel Scott while late at leaving harassment, harassing with one count misde- abusive and voice mail mes- sages.” meanor offense. The information alleged, part, in relevant that: (the Sometime thereafter record December, Day “on or about the 5th date), does not reveal the exact Scott filed Scott, re- Samuel hereinafter quash a motion to the two charging instru defendant, as ferred to with intent motion, Scott, ments. In his citing both alarm, abuse, torment, the First and Fourteenth Amendments Scott, *4 and embarrass Yvette hereinaf- Constitution, the United argued States ter referred to as did complainant, 42.07, § that Texas Penal the Code statute make the repeated communications to under which he charged, was was unconsti complainant, calls, in telephone to wit: tutional on its face1 it both because was harass, reasonably a manner to likely unduly vague and argued overbroad.2 He alarm, abuse, torment, annoy, embar- further vagueness that the statute’s complainant.” rass and offend the overbreadth threatened “to induce individ 11, 2006, July County, in again On Bexar forgo uals to [their] First Amendment charged again by Scott was information rights free speech] for fear of violating [to al- with harassment. The information Scott, law.” unclear our citing decision in leged, part, relevant that: State, Long 285, in v. 931 S.W.2d 288 March, (Tex.Crim.App.1996), “on or about the 12th Day noted that “when [as 2006, Scott, Samuel hereinafter referred vagueness here] a challenge involves First defendant, harass, considerations, to to as with intent Amendment a criminal law alarm, abuse, torment, annoy, may and em- be facially held though invalid even it Scott, barrass Yvette re- may hereinafter not applied be unconstitutional as to complainant, ferred to as make re- Notably, did the defendant’s conduct.” Scott § peated communications to the did not that argue vague 42.07 was as complainant conduct, i.e., in reasonably a manner applied to his that the statute alarm, abuse, likely give failed to him a opportunity reasonable torment, embarrass and offend the com- to know the which that conduct for he was plainant, to wit: the the charged prohibited.3 defendant called was State, may challenged Bynum 1. A statute be as unconstitu for law v. 767 enforcement. 769, applied.” "on face” (Tex.Crim.App.1989). tional its or “as A claim S.W.2d A 773 overbroad, may challenged that a is “on statute unconstitutional its face” statute be as terms, always by Speech a claim that the is its violation the Clause the Free Amendment, if, operates unconstitutionally. proscrib v. First Gillenwaters addition State, 534, (Tex.Crim. ing activity may constitutionally 536 2 be for 205 S.W.3d n. bidden, App.2006). sweeps coverage A claim that a is unconsti within its a sub applied” expressive activity tutional that the “as is claim stat stantial amount of that is operates unconstitutionally respect protected ute the First Amendment. Morehead State, 577, particular (Tex.Crim.App. the his claimant because of circum v. 807 S.W.2d 580 1991). stances. Id. n. 3. unduly challenged 3.Ordinarily, 2. A statute as chal- be criminal defendant who vague, lenges unduly vague in violation of the Due Process Clause a statute as must show Amendment, vague applied Fourteenth if it does not: that it as to the conduct for is (1) give ordinary intelligence Levy, charged. which v. 417 he was Parker 733, 756, opportunity pro what reasonable know U.S. S.Ct. L.Ed.2d 439 (2) State, (1974); guidelines Bynum hibited and establish definite 767 S.W.2d “inher- statutory were held a those subsections the trial court On June (2) statutory neither subsec- ently vague”; Nei- quash. motion to Scott’s hearing on sensibilities clearly indicated “whose tion any presented State ther nor the Scott (8) offended”; statutory neither must be hearing. Just after evidence at that clearly “the standard indicated subsection to the explained Scott hearing, start of [prohibited] [was] by which April that he trial court believed (4) assessed”; specific un- brought had been 2006 information statutory subsec- included in elements 42.07(a)(4), § Texas Penal Code der vagueness. not save them from tions did July that the whereas he believed brought under been information had State, response, did address 42.07(a)(7).4 end Toward Instead, arguments. merits of Scott’s Scott, on the matter queried when hearing, no argued simply “[t]here the State court, appeared to concede the trial jurisdiction has over this any court had been charging instruments that both ruled that court that has specific [trial] 42.07(a)(4). brought under unconstitutionally to be specific statute *5 vague.” to his motion As of for substance arguments
quash, Scott reiterated
hearing,
At
the conclusion
In
motion.
he
made in his written
to quash.
had
motion
trial court denied Scott’s
(1)
42.07(a)(4)
addition,
thereafter,
§
pled
that:
nolo
argued
Shortly
he
Scott
conten-
(a)(7)
unconstitutionally
dere,
to
pursuant
plea bargain,
to a
each
and
were both
The trial court then
charge.
face
on their
because
vague and overbroad
in each
punishment
in
case
assessed Scott’s
“annoy” and “alarm” included
the terms
However,
provides,
§
Penal Code 42.07
in rele-
(Tex.Crim.App.1989).
if the chal-
4. Texas
part:
free-speech
vant
lenged
implicates
i.e., if the
guarantee of the First Amendment —
if,
(a)
an offense
A
commits
construed,
authoritatively
is sus-
as
alarm, abuse,
harass, annoy,
tor-
intent to
guaranteed
ceptible
application
speech
of
another,
ment,
he:
embarrass
or
First
the defendant
Amendment—then
permitted
argue
the statute is over-
(4)
of another
causes
wheth-
on its face because it is unclear
broad
ring
repeated tele-
repeatedly or makes
regulates
pro-
of
er
a substantial amount
anonymously
in
phone
or
communications
Williams, 553
speech.
States v.
tected
United
reasonably likely to
an-
a manner
S.Ct.
170 L.Ed.2d
U.S.
embarrass,
alarm, abuse, torment,
noy,
Wilson,
(2008); Gooding
405 U.S.
another;
offend
(1972).
520-21,
1103, 31
92 S.Ct.
L.Ed.2d 408
rule
deemed
exception
This
to the usual
exis-
justified
continued
since the otherwise
(7)
repeated electronic communi-
sends
form
of the statute
unnarrowed
tence
reasonably likely to
in a manner
cations
harass,
constitutionally pro-
suppress
would tend
abuse, torment,
alarm,
em-
Wilson,
rights. Gooding v.
U.S. at
tected
barrass, or offend another.
us
In the cases before
We turn next to the State’s second (1942). In a liberty, nation of ground review, ordered for in which the State ar however, the guarantee speech of free can gues that the appeals court of erred in 42.07(a)(4) § not be absolute. The concluding may lawfully that State implicated proscribe (i.e., the free-speech guarantee of the communicative First conduct ideas, The question Amendment. of whether communication of opinions, in and formation) statutory subsection implicates the free- pri- invades the substantial alarm, abuse, torment, embarrass, annoy, Appeals by declaring vague Court of err another,” or offend which are both con- acquitting appellant and applying instead of tained within Texas Penal Code a narrow construction to the statute to 42.07(a)(4) (a)(7), § unconstitutionally alleged vagueness? avoid the vague? (6)Has Appeals improperly the Court of (4) allegation appellant Did the State’s (a)(4) determined that because subsections messages” implicate left "voice mail Texas (a)(7) § of Texas Penal Code 42.07 al- 42.07(a)(7) case, § Penal Code in this legedly implicate the First Amendment and phrase necessarily does fall within the might protected speech curtail those sub- definition of "electronic communication” vague, proper ques- sections are when the 42.07(b)(1)? § found (5) Texas Penal Code tion should have been whether the subsec- If some of Texas Penal Code tions are overbroad? § unconstitutionally vague, 42.07 is did the vacy essentially Second, interests of another in an of emotional distress. the text California, intolerable manner. Cohen v. requires that the actor repeated make tele- 403 U.S. 91 S.Ct. 29 L.Ed.2d phone victim; calls to the telephone one (1971).10 Third, call will not suffice.12 the text re- quires that the actor make telephone those Turning meaning calls in a reasonably manner likely to ha- 42.07(a)(4), that, we find given alle rass, alarm, abuse, annoy, torment, embar- instruments, gations in the charging rass, or offend an average person.13 (a)(4) relevant portion of reads as follows: Fourth, the text does not require that the if, “A person commits an offense with in spoken actor use words. harass, alarm, abuse, annoy, tent tor Having examined ment, another, text or embarrass he ... makes 42.07(a)(4), we conclude that it is repeated telephone ... communications susceptible of harass, application to reasonably a manner communicative likely to an alarm, abuse, torment, embarrass, protected noy, by the First words, Amendment. In offend another.” other things We notice several statuto- First, ry about that text.11 subsection does not requires implicate the text the free- speech guarantee that the actor have the specific intent to of the First Amendment. harass, alarm, abuse, torment, subsection, statutory text, its plain who, embarrass the recipient telephone directed at persons with the is, call. That requires specific the text that the distress, intent to inflict emotional actor have the intent to inflict repeatedly harm on the use the telephone to an- invade victim in the types form of one of the listed person’s other personal privacy and do so Royall, Constitutionally Regulating See M. than one enough prox- call in close Telephone imity Harassment: An Exercise in Statu- properly single episode,” be termed a Precision, tory U. Chi. repetition L.Rev. because frequent it is the of harass- (The (1989) ing telephone Cohen v. "intolerabili- calls that makes them intoler- California ty” evaluating justifies standard is "useful prohibition. tele- able and their [for] criminal statutes.”). phone Royall, Constitutionally Regulating See M. Telephone Harassment: An Exercise in Statu- Precision, interpret tory 11. When we our constitu 56 U. Chi. L.Rev. (1989) (“Prudence duty give tional is to determine and may justify pol- effect to a hands-off apparent legislators icy single intent of the who calls made with the intent to determining apparent voted for it. harassing this repeated but as calls are intent, legislative intervening we focus our attention on protect state interest ourselves, recipient the text of the statute and compelling.”). ask how becomes more *8 legislators ordinary would have understood State, "harass,” "alarm,” that text? "annoy,” Whitehead v. 273 S.W.3d 13.The terms 285, "abuse,” "torment,” "embarrass,” Boykin 288 (Tex.Crim.App.2008); v. and "of- State, 782, (Tex.Crim.App. commonly 818 S.W.2d 785 fend” all have understood defini- 1991). presume legislators We also that the tions that are relevant this context. obligations annoy persistently.” were aware of their constitutional "Harass” means "to "Annoy” by intended a constitutional statute. State means "wear on the nerves Edmond, (Tex.Crim.App. persistent unpleasantness.” 933 petty S.W.2d 124 "Alarm” 1996); (2009). § 82 C.J.S. Statutes 381 means "to strike fear.” "Abuse” means "to attack with words.” "Torment” "repeated” 12. commonly The term is under- means “to cause severe distress of the "reiterated,” “recurring,” stood to mean or mind.” "Embarrass” means "to cause to “frequent." Collegiate experience Webster’s Ninth New a state of self-conscious dis- (1988); dislike, Dictionaiy English 998 2 Dic- tress.” "Offend” "to means cause Oxford Here, (1971). tionary anger, 2494 we believe that or vexation.” Webster’s Ninth New 47, 68, 88, 405, 552, Legislature the phrase "repeated Collegiate Dictionary intended the telephone (1988). to mean communications” "more and 1245 670 that communicative conduct is not likely to inflict when reasonably
in a manner
text,
plain
Amendment be-
protected by
distress. Given
the First
emotional
cause,
the conduct to which the
presented,
the
we believe
under
circumstances
susceptible
appli-
is
statutory subsection
the
conduct
invades
that communicative
case,
be,
essentially
in the usual
cation will
privacy interests
of another
substantial
noncommunicative,
in-
even if the conduct
victim)
(the
essentially
in an
intolerable
say,
That is to
spoken words.14
cludes
sustain the State’s second
manner.15 We
case,
whose conduct vio-
persons
the usual
for review.
ground
42.07(a)(4)
will not have an intent
lates
of the State’s sec-
disposition
Given our
legitimate
in the
communication
engage
review,
for
we
grounds
ond and fourth
information;
ideas,
they will
opinions, or
remaining
need not
reach the State’s
only the intent
to inflict emotional
have
for review.
dismiss them.
grounds
We
the extent
for its own sake. To
distress
42.07(a)(4)
im
Because
does not
statutory
susceptible
that the
subsection
conduct,
plicate
free-speech guarantee
the
to communicative
application
Amendment, Scott,
only
making
First
his
susceptible
application
of such
Amendment,
Anchorage,
Municipality
der the First
of a statute that
14. In Jones v.
(Alaska
by
telephone com
App.1988), the court ad-
read: “Whoever means of
P.2d 275
call,
constitutionality,
telephone
the
...
the
under
First
munication
[m]akes
dressed
Amendment,
ensues,
city
of a
ordinance that read:
or not conversation
without
whether
anonymously
any person
identity
“It is unlawful for
disclosing
and with intent to an
his
telephone
person
abuse, threaten,
repeatedly
another
for
any person
or
noy,
at
or harass
annoying, molesting,
purpose of
or abus-
the
guilty
...
of a
the called number
shall be
ing through patently
profane
offensive and
upheld the
misdemeanor.” The court
harassing
language,
or
or his fam-
explaining,
part,
in relevant
that the statute
ordinance,
ily.”
upheld the
ex-
The court
was "not directed at the communication
plaining,
part,
in relevant
that the ordinance
ideas,
conduct,
is,
opinions
but at
only
speech
when it
essen-
[was]
"restrict[ed]
making
telephone
act of
call or a series of
words,
tially
other
noncommunicative —in
calls,
disclosing identity
telephone
without
any
speech
devoid of
[was]
when the
ensues, with
and whether or not conversation
solely and
information and [was]
substantive
abuse,
intent to
threaten or harass
by
speaker
specifically intended
to evoke
recipient
That
call.
this
response
an adverse emotional
from
lis-
effected in
verbal means does
at 279.
tener.” Id.
necessarily
invalidate the statute on free
speech grounds.”
at
Thorne,
dom of
Id.
W.Va.
In State v.
(1985),
S.E.2d 817
the court addressed
Smith,
In State v.
Misc.2d
Amendment,
constitutionality, under the First
(App.Div.1977), the court ad-
N.Y.S.2d 968
that read: "It shall be unlawful
of a statute
constitutionality,
the First
dressed
under
any person to harass or abuse another
Amendment,
per-
"[A
of a statute that read:
repeated
telephone
... [m]ake
means of
[a]
when, with intent to
son commits an offense]
calls, during
which conversation
harass, annoy,
per-
another
threaten or alarm
ensues,
any person
with intent to harass
son,
person,
... with a
he [c]ommunicates
upheld
called
The court
number.”
otherwise,
anonymously
by telephone ...
statute, explaining,
part:
in relevant
“Prohib
*9
likely
annoyance
in a manner
to cause
or
speech,
iting
prohibiting
not
harassment
is
statute,
upheld
ex-
alarm.” The court
the
speech.
is not
Harass
because
part,
that the statute
communication,
plaining,
in relevant
although may
it
ment is not
... communications
"was intended to include
speech.
prohibits
take the form of
The statute
unwilling recipient
are directed to an
which
only telephone
with the intent to
calls made
pri-
wherein substantial
under circumstances
with an intent to
harass. Phone calls made
being
in an
vacy interests are
invaded
essen-
prohibited.” Id. at 819.
communicate are not
Elder,
1980),
(Fla.
tially intolerable manner.”
Id.
In State v.
claim we now person.8 embarrass that terms that contained the idated statutes these reveals comparison passages A implicating as First “annoy” “alarm” in only three the current statute features unduly being freedoms and Amendment stalking provi- in the former that were not today, opinion the Court’s vague.5 In its (1) “repeated” the use of instead sion: cases is distinguish to these attempt (2) occasion,” more one the addi- “on than say they different versions to involved “offend” in the emotional state of tional one the than the harassment statute (3) statute, and the limitation of current currently us.6 that is before communi- current to the statute cations. in issue provision But at “Repeated” B. in present pertinent case is similar provision that we
ways stalking to the introduces an am- “repeated” The term with “on than more biguity present The of the Long. in invalidated language in the former one occasion” provides: harassment statute at issue “repeated” if stalking statute. Is conduct if, with person A commits an offense If the two occurrences it occurs twice? abuse, alarm, harass, annoy, intent to it matter whether year apart? are a Does another, ... torment, he or embarrass multiple show that the the circumstances telephone communica- instances of conduct are connected to repeated makes 9 course of conduct? With same scheme or likely reasonably ... in a manner tions constitutionality to facial of a respect torment, alarm, abuse, ambiguity may acceptable this be embarrass, another.7 or offend are ab- if First Amendment considerations in provision Long cases, in stalking provided The many it would be clear sent. person’s “repeated,” a conduct was so part: relevant case-by-case could on a basis adjudicate we if, person A with commits offense was afforded particular whether alarm, abuse, harass, annoy, if adequate notice under the statute.10 But another, ... torment, he or embarrass stake, at are First Amendment freedoms in engages than one occasion on more ambiguity in we cannot allow protected expression.11 likely to to chill reasonably ... that is conduct vague op. n. 6. analyzed 6. Court's at 667 Long 4. issue as a similar implica ness claim First Amendment 42.07(a)(4). Supreme opinion Hold Court's tions. 7. Tex Penal Code Project, - U.S. -, er v. Humanitarian Law 2705, 2718-19, 177 355 130 L.Ed.2d (quoting S.Ct. Long, at the 1994 931 S.W.2d 288 Williams, (2010) (citing States v. 553 United 42.07(a)(7)). version Penal Code Tex. 285, 304, 170 L.Ed.2d U.S. 128 S.Ct. (2008)), analysis proper 650 indicates that (no requirement 9. See id. at 291 nexus might appropriately as more characterized statute). stalking former awith a First Amendment overbreadth claim analyze vagueness component. I the issue Williams, at 128 S.Ct. 10. See 553 U.S. Project, Law but accord with Humanitarian context, (outside the First Amendment 1830 essentially analysis the same. engages in clear- person "who complain vague- ly proscribed cannot May, at Long, generally; S.W.2d 5. See 765 applied as to the conduct of ness of the law Kramer, (following quoting F.2d others."). reasonably “By provide failing at 178: gives un- guidelines, § clear 42.07 officials 287; Gooding v. Wil Long, 931 S.W.2d apply the discretion to law selective- bounded son, S.Ct. U.S. right ly subjects the exercise (1972) standard."). (referring need L.Ed.2d 408 speech to an unascertainable *11 The Court contends that we can read intense emotional states available under “repeated” to in mean “more than one call the [stalking] statute.”15 enough proximity properly close to be a D. single Telephone termed The Court Communications episode.”12 source, single cite a fails to from a dictio- That leaves the remaining distinctive otherwise, nary or “repeated” limits feature of the current provi- in single episode. to actions a a Although sion: the fact that it is limited to telephone general duty employ court has a “rea- to I agree communications. with the Court narrowing sonable constructions” to avoid that the First Amendment is implicat- not violations, may constitutional “as- ed when the “intent” the “reasonably and legislative prerogative sume the re- likely” person’s effect of a conduct is to
write statute” that “readily is not sub- “harass,” “abuse,” or “torment.” IBut ject” to being narrowly construed.13 would hold that the First Amendment is day once a for a Would month constitute implicated when the “intent” or “reason- single “a episode?” any Under common ably likely” effect of person’s conduct is not, understanding it would but it is hard “alarm,” “annoy,” “embarrass,” or “of- Legislature to believe the did not intend fend.” below, reach such conduct. As discussed Legislature legitimate has a in interest Binding 1. Precedent proscribing conduct over the telephone Long, In we said that the terms “ha- intentionally harassing, abusing, rass,” “abuse,” and “torment” carried In tormenting. my opinion, that inter- greater intensity emotional “annoy” than legitimately est would multiple extend to “embarrass,” they though still implicat- instances of conduct that could not reason- ed First Amendment freedoms under the ably single be considered of a episode.
stalking statute.16
stalking
The former
C. Offend
expansively
“any
covered
in
which a
possibly
could
en-
term
nothing
“offend” does
to obvi-
gage.”
But
context
in which the
ate the
expressed
concerns
We
Long.
harassing conduct
can
impor-
occurs
explained there that a person’s intent to
act,
tant.
Government can
inflict more
consistent
intense emotional state than
Amendment,
the First
“annoy” might
prevent
serve to take the First
“sub-
stantial privacy
“being
Amendment out of the
interests” from
in-
But “of-
picture.14
fend” is no
vaded in an essentially
more intense
man-
emotional
intolerable
“embarrass,”
state
“annoy”
than
ner.”
greatest
which
The State has
leeway
we
“probably
concluded
describe the least
regulating expression
privacy
in favor of
protect persons
“who
well refrain from
relating
emotional
to what emotional
terms—
exercising
rights
their
fear
“reasonably likely”
of criminal
state
victim was
provided by
42.07(a)(4).
sanctions
susceptible
a statute
suffer. See Tex
Penal Code
application
protected expression”).
The statute
a corresponding
does not have
Id.,
requirement
to offend.
op.
12. Court's
at 669 n.
42.07(a).
12.
Long,
13.
14. Id. at 293.
(emphasis
original).
17. Id. at 289
addition,
id. at
ap-
See
California,
“offend”
18. Cohen v.
403 U.S.
pears only
(1971).
in the second
two lists
S.Ct.
674 in Bowker on two ment from that to intru- statute “prohibit when it seeks interests At “all prohibited the statute privacy grounds: state sion into the home.”19 time, Court has Supreme the intent to placed the the calls with telephone same ‘captives’ out- require “we are often annoy stressed that alarm” and it did not or subject sanctuary of the home side the The court found anonymity.25 Telephone objectionable not directed Hampshire statute was New speech.”20 can statute under the current harassment intend- communications toward those home, but the stat- in the sometimes occur victim, instead fear in the but ed instill it that manner. not limit in ute does put,” “Simply swept far more broadly.26 explained, “the First Amendment the court 2. Other Jurisdictions The court of sterner is made stuff.”27 Bowker, the Sixth States v. In United Hampshire statute that the New concluded constitutionality of Circuit addressed a it covered sub- was overbroad because statute, telephone harassment the federal protected of First Amend- stantial amount made a phone calls proscribed which a real likeli- and there was speech, ment disclosing identity his person “without discourage citizens from it might hood that abuse, threaten, or intent to exercising speech.28 fac- The court identified two harass.”21 State,29Maryland’s Galloway court v. upholding constitutionality in tors constitutionali- of last resort addressed the First Amend- against statute a the federal provid- which ty its harassment First, ment overbreadth challenge.22 ed as follows: federal statute explained court tele- simply annoying [on] focuses “not a) of conduct defined.—In this Course prohibits phonic communications” but also a per- means section “course of conduct” “abusive, harassing or commu- threatening conduct, pattern composed sistent said, Second, the court nications.”23 time, period of acts over series in realm operates private a more continuity purpose. evidences with much which the listener has to “deal (b) does not section Applicability.—This the unwant- more inconvenience to avoid” any activity intended apply peaceable nature of speech, ed unidentified in- political provide views express likely instill fear the caller was more to others. formation listener and make more difficult listener to confront (c) person caller.24 Prohibited Conduct.—A another about follow Hampshire Supreme The New Court maliciously engage in a public place or its harass- distinguished state’s 24. Id. 19. Id. (some quotation omit-
20.
Id.
internal
marks
Brobst,
N.H.
857
25. State v.
151
ted).
(2004).
A.2d 1253
365,
Bowker,
F.3d
21.
United
See
States
(6th Cir.2004),
26.
Id.
n. 3
vacated on other
1420,
grounds,
543 U.S.
125 S.Ct.
(2005).
L.Ed.2d 181
A.2d
27.
1253.
Id.
379;
v. Eck
22.
Id. at
see also United States
Id.
Cir.2006)
hardt,
(11th
466 F.3d
943-44
Bowker),
(following
(2001).
Md.
course of
*13
readily susceptible
of a device
to abuse as
annoys
person:
another
ously
trespasser upon
privacy.”35
a constant
our
(1)
harass, alarm,
intent to
or an-
With
noy
person;
the other
Comparison with
3.
Other Statutes
(2)
warning
request
After reasonable
or
provision
The harassment
before us
the other
by or on behalf of
to desist
lacks most of the restrictions found in the
person; and
analyzed
that were
in Bowlcer and
statutes
(3)
legal purpose.30
a
Without
Galloway.
portion
The
of the statute at
require
not
the calls be
issue does
Galloway
initially
court
stressed
anonymous.36 Although the Texas statute
“seriously”
of the adverb
significance
communications,
“repeated”
it
proscribes
not-
“annoy,”31but the court also
preceded
require
showing
that these com-
does not
of other restrictions that
ed a number
pursuant
munications were
to a course of
the statute
acceptable:
made the statute
exception
No
is made for the
conduct.
desist,”
warning to
required “a reasonable
or the dissem-
expression
political views
“any
activity
apply
peaceable
it did not
information,
and no reasonable
ination
pro-
express political
intended to
views
fur-
warning
required
desist is
before
others,”
it
vide information to
and mandat-
Fur-
triggers prosecution.
ther conduct
for the
“legal purpose”
ed that there be no
thermore, the Texas statute does not con-
the court em-
activity.32 Additionally,
person”
tain a “reasonable
standard.37
by
construction
read-
ployed
narrowing
by
though specific
required
And
intent is
into
ing
person”
a “reasonable
standard
provision,
specific
the Texas
intent
Further,
the statute.33
the court found
intensity
can attach to low
emotional states
re-
presence
specific
that the
of a
embarrass).
alarm,
(annoy,
though might
not be able
quirement,
Intensity
High
to save a statute from constitutional
itself
4. Low
versus
Intensity
that an accused
Emotional
infirmity, helped to ensure
States
violating
fair
that he was
had
notice
quoted
criminal statute.34 The court also
Long,
“The First Amend-
As we said
proposi-
case for the
from a Connecticut
outlawing
permit
ment
not
does
harassment statute did not
tion that
its
in-
merely
speaker
because the
concerns under the
implicate
annoy
overbreadth
and a reason-
tends to
the listener
annoyed.”38
in fact be
“prohibition
able
would
First Amendment because
689, 696,
608-09,
mous,
Id.,
Conn.Supp.
A.2d
34
389
Md. at
Ellis,
(Tex.Crim.App.
309 S.W.3d
89-90
(Tex.Crim.App.2007) (overturning
tamper-
Williams,
2010)
(quoting
553 U.S. at
because,
ing
prosecution
with evidence
even
1830).
Long,
recognized
S.Ct.
we
if the defendant knew that his action would
alarm,
even if "intent
etc.” was
availability
impair
marijuana
as evi-
clear, a statute could still "run
into
serious
dence,
prosecution
had not shown that he
problem.” Long,
overbreadth
931 S.W.2d at
impair
availability).
iniended to
its
290 n. 4.
39.This observation was made
the court of
op.
Court's
Scott,
appeals below. See
employ narrowing reasonable construc- in some circumstances but not if others violations, tions to avoid constitutional but there is no basis whatever in the text for legislative preroga- not assume the doing so.44 The Supreme Court stated tive and rewrite statute that is not readi- that, though it “will often strain to con- subject ly being narrowly construed.42 legislation strue so as against to save it The Legislature legitimately punish can attack, constitutional it must not and will harasses, abuses, intentionally who not carry point this to the perverting telephone or torments someone over the the purpose of a statute.”45 if person’s even that is not the sole intent. easily One can imagine ex-boyfriend Spoken F. Words hounding someone over the says Court also the text of harass, abuse, torment, the intent require statute “does not having particular grievance, but also real the actor spoken use por- words.”46 The *15 imagined, communicate. Such actors tion of the statute at proscribes issue here punished legiti- still deserve to be and are “telephone communications.”47 Although mately by the in- covered statute. When someone use a “telephone communica- tentionally harassing, abusing, and tor- something tion” for other than words (e.g. menting occurring over the heavy silence or breathing), portion telephone, the not have authorities should the statute at issue overwhelmingly here to refrain from acting because the caller implicates the might spoken has or have another reason for the word. For example, Moreover, call. at trial the State ringing phone would be repeatedly proscribed saddled with proving “sole intent.” A by part of the statute not at issue here.48 “sole intent” narrowing construction would Moreover, although words are not re- do more to undermine the statute than quired, that fact would not distinguish this (with simply severing respect to the part case Long, from in which First Amend- issue) problematic statute ment were implicat- freedoms found to be “alarm,” “embarrass,” “annoy,” terms ed the stalking statute.49 “offend.”43 finally, And there is no basis reasons, For the above I respectfully applying the statute for a “sole intent” dissent. only construction to the emotional states “alarm,” “annoy,” and “embarrass.” Supreme explained Court has that a party “give[s] the game away” when he
argues that an requirement applies intent Long, §
42. 931 S.W.2d at provisions 295. 2339B read the same in that requiring statute as intent in some circum- Indeed, one can wonder whether a "sole others.”). stances but not narrowing destroy intent” construction would attempt statute to save it because Id., virtually every defendant would claim to have some other intent in addition to an intent to op. 46. Court’s at 669. inflict emotional distress. 42.07(a)(4), quoted 47. See Tex. Penal Code Project,
44. Holder v. Humanitarian Law opinion, in this ante. ("Finally, plaintiffs give S.Ct. at 2718. game away they argue specific when that a 42.07(a)(4). 48. See Tex. Penal Code requirement apply when should material-support applies speech. There opinion, is no basis whatever in the text of 49. See this ante.