State v. Alexander

888 P.2d 175, 76 Wash. App. 830
CourtCourt of Appeals of Washington
DecidedFebruary 6, 1995
Docket31925-6-I; 31945-1-I
StatusPublished
Cited by25 cases

This text of 888 P.2d 175 (State v. Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alexander, 888 P.2d 175, 76 Wash. App. 830 (Wash. Ct. App. 1995).

Opinions

Coleman, J.

Pamela Potter and Richard Alexander appeal their convictions for telephone harassment. They allege that the laws under which they were convicted are unconstitutionally overbroad and vague. We affirm.

On four successive days in April 1990, Pamela Potter made 680 "hang-up” telephone calls to the United Way Crisis Clinic. She was charged by complaint in Seattle Municipal Court with two counts of telephone harassment pursuant to Seattle Municipal Code (SMC) 12A.06.100. That ordinance reads in pertinent part:

A person is guilty of making telephone calls to harass, intimidate, torment or embarrass any other person if, with intent to harass, intimidate, torment or embarrass any other person, he makes a telephone call to such other person:
[833]*8332. Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues[.]

SMC 12A.06.100(A)(2). The jury convicted Potter of both counts after receiving an instruction, which was based on this ordinance, that omitted any reference to the term "embarrass”. The King County Superior Court affirmed on RALJ appeal. Potter then sought discretionary review in the Court of Appeals, which was granted.

Richard Alexander called his former girlfriend over a period of months, up to 15 times a day, at all hours, and with foul language. He was charged in Shoreline District Court with telephone harassment in violation of RCW 9.61.230. Under that statute, a person commits a crime when he makes a telephone call to another person

with intent to harass, intimidate, torment or embarrass . . . such other person:
(1) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or
(2) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues[.]

RCW 9.61.230. Prior to trial, Alexander moved to dismiss the charge, challenging the constitutionality of the statute as overbroad and vague. The court denied the motion.

The jury was instructed that, to convict Alexander, it would have to find that he had "either: (a) used profane words or language, or (b) telephoned] anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensued”, with intent to harass, intimidate, torment or embarrass the former girlfriend. The jury convicted Alexander as charged. On RALJ appeal the King County Superior Court affirmed his conviction. This court granted discretionary review and consolidated the two appeals.

We first determine whether RCW 9.61.230 and SMC 12A.06.100 are unconstitutionally overbroad. Alexander contends that the language "to embarrass” contained in the statute is unconstitutionally overbroad. Potter and Alexder challenge the breadth of both enactments in their entirety. As an initial matter, we find that Potter and Alex[834]*834ander correctly assert that they have standing to challenge the facial validity of the provisions at issue even though their own conduct falls within the "hard core” of the laws because "third party standing is appropriate when the challenged statute may chill constitutionally protected behavior.”1 Seattle v. Ivan, 71 Wn. App. 145, 150, 856 P.2d 1116 (1993) (citing Tacoma v. Luvene, 118 Wn.2d 826, 840, 827 P.2d 1374 (1992)).

1. Overbreadth — Alexander. Alexander argues that the term "to embarrass” is overbroad in violation of the First Amendment and Washington Constitution article 1, section 5.

Alexander contends that the Supreme Court in Seattle v. Huff, 111 Wn.2d 923, 767 P.2d 572 (1989) (Huff II) found that the term "embarrass” as used in RCW 9.61.230 was unconstitutionally overbroad. This misstates the court’s holding in that the Supreme Court did not address whether that construction is constitutionally mandated.2 Thus, we must consider the constitutional breadth of the term "embarrass”.

Overbreadth occurs when a law proscribes constitutionally protected free speech activities. In response to a facial challenge under the First Amendment, the court must first determine whether the overbreadth is both real and substantial in relation to the law’s plainly legitimate sweep. State v. Halstien, 122 Wn.2d 109, 122-23, 857 P.2d 270 (1993) (citing Luvene, at 839-40 and Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988)). If a law covers a [835]*835substantial amount of protected speech in a nonpublic forum, that speech may be regulated if the law draws distinctions that are reasonable in light of the purpose served by the forum and if the law is viewpoint neutral. Huff II, at 926. Potter and Alexander do not dispute that the enactments in this case are viewpoint neutral. At issue is whether any overbreadth is real and substantial in relation to the plainly legitimate sweep of the legislation and, if so, whether the term "embarrass” draws distinctions that are reasonable in light of the purpose served by the forum, telephone communication.

Alexander argues under Seattle v. Huff, 51 Wn. App. 12, 751 P.2d 879 (1988) (Huff I) (without assessing Court of Appeals’ analysis of "embarrass”), aff’d, 111 Wn.2d 923, 767 P.2d 572 (1989) that the proscription of specified calls, those which include certain language or conduct and are intended to embarrass, is too broad to constitute a reasonable restriction on free speech. In that case, the Court of Appeals considered the following subsection of the provision currently before this court.

A. A person is guilty ... if, with intent to harass, intimidate, torment or embarrass any other person, he makes a telephone call to such other person:
(3) Threatening to inflict injury on the person or property of the person called or any member of his family[.]

Huff I, at 14 (quoting SMC 12A.06.100(A)(3)). The Court of Appeals found "embarrass” overbroad under a different analytical framework than the one utilized by the Supreme Court in Huff II. The Court of Appeals weighed the City’s interests against the infringement on protected speech and found that the City could not demonstrate a compelling interest in criminalizing telephone calls that are merely intended to embarrass the listener. Huff I, at 16. The test, however, is not whether the State has a compelling interest in regulating the conduct.

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Bluebook (online)
888 P.2d 175, 76 Wash. App. 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alexander-washctapp-1995.