City of Bellevue v. Lorang

140 Wash. 2d 19
CourtWashington Supreme Court
DecidedFebruary 3, 2000
DocketNo. 67488-4
StatusPublished
Cited by70 cases

This text of 140 Wash. 2d 19 (City of Bellevue v. Lorang) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Bellevue v. Lorang, 140 Wash. 2d 19 (Wash. 2000).

Opinion

Johnson, J.

The question presented is whether the City of Bellevue’s telephone harassment ordinance (Ordinance) is unconstitutional insofar as it forbids speech that is “profane” or “[wjithout purpose of legitimate communication.” Bellevue City Code (BCC) 10A.84.090(A)(1), (4). The Court of Appeals held the Ordinance was constitutional and affirmed Lorang’s conviction. We reverse.

FACTS1

In 1994, City of Bellevue resident Jon Lorang was living [22]*22in an apartment complex managed by the King County Housing Authority (Housing Authority). He was somehow assigned two apartments and was instructed to vacate one of them and move to the other.

On August 5, 1994, Edward Win, a Housing Authority employee and resident manager of Lorang’s apartment building, found four messages on his telephone answering machine from Lorang. Win testified, “I remember I heard [Lorang] referring to Miss Jones as a bitch and a twat. Charles Biggers as Charley boy and him coming over with the sheriff and bringing nine bros.” Clerk’s Papers at 217. He “referred to the Housing Authority as King of Kings . . . .” Clerk’s Papers at 227. Jones and Biggers are both Housing Authority employees. Win also stated Lorang was calling to complain, and not calling with a purpose. Win testified, Lorang “told me several times that the Housing Authority was harassing him and was vindictive toward him.” Clerk’s Papers at 220.

Lorang was convicted of telephone harassment against the Housing Authority under BCC 10A.84.090.2 The Ordinance at issue states:

Telephone harassment shall be as follows:

A. Every person who, with intent to disturb, embarrass, harass, intimidate, threaten or torment any other person, shall make a telephone call to such other person:
1. Using any lewd, lascivious, profane, indecent or obscene words or language, or suggesting any lewd or lascivious act; or
2. Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or
3. Threatening to inflict injury on the person or property of the person called or any member of his family; or
4. Without purpose of legitimate communication.
[23]*23B. The foregoing offense shall be deemed committed either at the place where the telephone call or calls were made or at the place where the telephone call or calls were received.
C. Telephone harassment is a misdemeanor.

BCC 10A.84.090 (emphasis added).

Although the Court of Appeals found the Ordinance potentially unconstitutional, it affirmed Lorang’s conviction in a published decision and ordered future jury instructions to include a secular definition of “profane.” City of Bellevue v. Lorang, 92 Wn. App. 186, 196, 963 P.2d 198 (1998). Lorang sought review of that decision, which we granted.

ISSUES3

(1) Is an ordinance that restricts “profane” speech without defining it secularly constitutionally suspect?
(2) Is an ordinance that restricts “profane” speech without defining it secularly overbroad?
(3) Is an ordinance that restricts telephone calls made “without purpose of legitimate communication” unconstitutional for vagueness?
(4) Was any error harmless?

ANALYSIS

Content Restrictions on Speech

The issue here centers on the Ordinance’s use of the term “profane.” While antiharassment ordinances are constitutional, see, e.g., City of Seattle v. Huff, 111 Wn.2d 923, 767 P.2d 572 (1989), they must be carefully drawn not to burden protected speech. See, e.g., R.A.V. v. City of St. Paul, [24]*24505 U.S. 377, 387, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (“In our view, the First Amendment imposes ... a ‘content discrimination’ hmitation upon a State’s prohibition of proscribable speech.”). “A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991).

Lorang contends that “profane” is not a content neutral term, and the City of Bellevue has, therefore, placed an impermissible content based burden on speech. Determining the meaning of “profane” resolves whether the Ordinance burdens protected speech.

“Profane” is not defined in the Ordinance. Unless contrary legislative intent is indicated, words are given their ordinary, dictionary meaning. See State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992). Webster’s defines “profane” as:

to violate or treat with abuse, irreverence, obloquy, or contempt (something sacred) : treat as not sacred : desecrate, pollute . . . unconcerned with that which is religious or with the purpose of religion : not devoted to the sacred and the holy . . . not holy because unconsecrated, impure, or defiled ....

Webster’s Third New International Dictionary 1810 (1986). Black’s Law Dictionary defines “profane” as: [ijrreverence toward God or holy things. Writing, speaking, or acting, in manifest or implied contempt of sacred things.” Black’s Law Dictionary 1210 (6th ed. 1990). The Oxford English Dictionary defines “profane” as:

1. Not pertaining or devoted to what is sacred or biblical . . . ; unconsecrated, secular, lay, common ; civil, as distinguished from ecclesiastical.
2. Applied to persons or things regarded as unholy or as desecrating what is holy or sacred : unhallowed ; ritually un[25]*25clean or polluted ; esp. said of the rites of an alien religion : heathen, pagan.
3. Characterized by disregard or contempt of sacred things, esp., in later use, by the taking of God’s name in vain ; irreverent, blasphemous, ribald ; impious, irreligious, wicked.

3 The Oxford English Dictionary 1425 (1933).

The word “profane” is also defined as “to indulge in profanity.” Webster’s Third New International Dictionary 1810 (1986). The Court of Appeals found that “profane (meaning vulgar or coarse) language easily occupies a place equivalent to the other . . . categories of speech entitled to minimal protection because of their low value in the exchange of ideas.” Lorang, 92 Wn. App. at 195. The Court of Appeals concluded, “ ‘words are known by the company they keep,’ ”4 and the other words contained in the Ordinance (lewd, lascivious, indecent, and obscene) do not concern themselves with blasphemy. After determining that “profane” was a secular term, the Court of Appeals concluded the Ordinance did not discriminate based on viewpoint. Lorang, 92 Wn. App. at 195. We disagree with this approach.

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Bluebook (online)
140 Wash. 2d 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-bellevue-v-lorang-wash-2000.