State v. Thorne

333 S.E.2d 817, 175 W. Va. 452

• Court: West Virginia Supreme Court
• Decided: August 7, 1985
• Docket: 16465
• Status: Published

Opinions

BROTHERTON, Justice:

Hillary Thorne, the appellant, is a civil rights activist and former Marshall University student. He appeals a judgment of the Circuit Court of Cabell County, which found him guilty of making phone calls with the intent to harass, in violation of West Virginia Code § 61-8-16(a)(4) (1984).

The problems between Mr. Thorne and Marshall University are not of recent origin. In 1979, Mr. Thorne, an activist against apartheid in South Africa, sued Marshall University for not allowing him access to its library because of his activities. An out-of-court settlement gave Mr. Thorne damages and access to the library.

After the law suit, Mr. Thorne enrolled in Marshall as a student. His academic performance was poor. He received a “C” in one course and flunked the remainder of his classes. His discipline record was equally poor, with several reports of disrupting classes and a report of a scuffle with another student over the viewing of a television program. In light of his performance, Marshall suspended Mr. Thorne, and when he tried to enroll in classes the next semester, he was denied admission. He tried again the following semester, again without success. Eventually, the suspension was the impetus for the series of phone calls to Marshall that gave rise to this ease.

Each phone call started out in a civil manner. However, at some point each turned unpleasant. One of Mr. Thorne’s favorite subjects was Dr. Robert Hayes, former President of Marshall University, who had just resigned. He referred to Dr. Hayes as “the head hog,” and stated that the “rest of the little piggies would get it.” Dr. Nell Bailey, Dean of Student Affairs, testified that she was called “a bigot, a racist pig.” Her secretary, Phyllis Caldwell, testified that the defendant “referred to Dr. Hayes, who has been barbecued, and for the drippings, they’re going to fry the little piggies who have been left behind.” Although these and other witnesses explained the text of only four calls, they testified to receiving numerous calls of a similar nature from Mr. Thorne.

Mr. Thorne was indicted by a Cabell County grand jury in September, 1983, for unlawfully making repeated phone calls to persons at Marshall University with the intent to harass. At a one-day jury trial on December 1, 1983, the State called five witnesses who testified to the above facts. Mr. Thorne testified in his own defense. At the trial’s conclusion, the jury found Mr. Thorne guilty. He now appeals to this Court, citing three principal errors: (1) that W.Va.Code § 61-8-16(a)(4) (1984), dealing with harassing phone calls, is overbroad and unconstitutional; (2) that the court should have directed the jury’s verdict at the conclusion of the State evidence; and (3) that the trial judge should have recused himself.

I.

Freedom of speech is one of our most cherished liberties, and in a free society it must be strongly defended. Nevertheless, in an orderly society there must be some limits to free speech. To achieve order, the legislature may properly limit certain activities such as falsely shouting fire in a crowded theater,¹ announcing the sailing date of military transports or the number and location of troops,² and, of greater relevance, harassing others over a telephone.³

Mr. Thorne does not challenge the legislature’s power to regulate this area. Instead, he suggests that W.Va.Code § 61-8-16(a)(4) (1984) is overbroad and prohibits conduct beyond the legitimate governmental interest in preventing harassment.⁴ It is true that because of the great importance of free speech, the State’s power to regulate “must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218 (1940). We do not, however, find undue infringement in this case.

Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech. The statute prohibits only telephone calls made with the intent to harass. Phone calls made with the intent to communicate are not prohibited. Harassment, in this case, thus is not protected merely because it is accomplished using a telephone. “ ‘[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ ” Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491-92 (1965), quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843 (1949). Because the statute does not prohibit communicative speech, we find that its proscription is not overbroad. This conclusion is in agreement with other courts that have addressed this issue.⁵

This case is of greater concern to us because Marshall University is a State agency. The first amendment right to petition the government for redress extends, of course, to petitioning government agencies. This right, as all first amendment rights, is very jealously protected by the courts. A citizen must have the right to petition his government and to petition it forcefully and repeatedly without any danger of being found guilty of a crime. Because of the importance of this right, it would be very easy to martyr, on the altar of the first amendment, those government employees who have to answer the phone, and say that harassing phone calls to a government agency cannot be prohibited. In so doing, however, we would be doing the State of West Virginia a disservice. A great deal of legitimate government business is done over the phone. If people were allowed to make repeated calls for the sole purpose of harassing government employees, this would tie up the phone for those who wish to reach their government on legitimate business. It would also tie up valuable government staff from doing their jobs. The first amendment does not protect someone interrupting a legitimate government function. See, e.g., Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, , 17 L.Ed.2d 149, 155-56 (1966) (state may prohibit demonstrations on county jail premises).

Again, it must be stressed that the statute requires intent to harass. If a citizen intends legitimate communication, he may call and call repeatedly without fear of prosecution. Under this statute he may even call one time totally for the purpose of harassment. Nevertheless, there is a point where legitimate inquiry ends and harassment begins. There comes a point where one cannot repeatedly call a public servant and threaten to fry him in oil.

II.

The appellant also contends that the trial court should have directed a verdict in his favor at the end of the State’s case. We disagree. State witnesses Phyllis Caldwell and Steve Hensley each testified to receiving one call. Tina Harness testified to receiving two calls. Dr. Nell Bailey received numerous calls. The State’s witnesses testified to being threatened and insulted. Even Mr. Thorne admitted that he may have made references to barbecuing hogs and frying the little pigs in the fat left behind. Viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence to allow the case to go to a jury.

III.

The appellant’s final assignment of error is that the trial judge should have recused himself from the case. We disagree. While it is true that the presiding judge, Alfred E. Ferguson, was a part-time employee at Marshall University at the time of the trial, when this was brought to his attention Judge Ferguson offered to recuse himself. Instead of accepting the judge’s offer, the appellant withdrew his motion that the judge recuse himself and, therefore, waived any error. See syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

There being no error on the part of the trial court which mandates a reversal, the judgment of the trial court is hereby affirmed.

Affirmed.

1 . Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).

2 . See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, 1367 (1931).

3 . See cases cited in n. 6 infra.

4 . West Virginia Code § 61-8-16(a)(4) (1984) provides: “It shall be unlawful for any person with intent to harass or abuse another by means of telephone to: ... [M]ake repeated telephone calls, during which conversation ensues, with intent to harass any person at the called num-ber_”

5 . Several other states have upheld statutes which proscribed phone calls made with the "intent to harass.” See Donley v. City of Mountain Brook, 429 So.2d 603, 613 (Ala.Crim.App. 1982); State v. Hagen, 27 Ariz.App. 722, 725, 558 P.2d 750, 753 (1976); State v. Elder, 382 So.2d 687, 691-93 (Fla.1980); Constantino v. State, 243 Ga. 595, 598, 255 S.E.2d 710, 713, cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979); State v. Meunier, 354 So.2d 535, 537-38 (La.1978); Caldwell v. State, 26 Md.App. 94, 105, 337 A.2d 476, 483 (1975); People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968, 970, cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977); State v. Zeit, 22 Or.App. 480, 539 P.2d 1130, 1131 (1975); State v. Crelly, 313 N.W.2d 455, 457 (S.D.1981). Similar statutes have been struck down in some states because of the unacceptability of the wording of the statute. See Bolles v. People, 189 Colo. 394, 398-99, 541 P.2d 80, 83 (1975) (“annoy or alarm” overbroad); People v. Klick, 66 Ill.2d 269, 275, 5 Ill.Dec. 858, 860-61, 362 N.E.2d 329, 331-32 (1977) ("intent to annoy" overbroad); City of Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617, 618-20 (1984) (“alarms or seriously annoys” overbroad); State v. Dronso, 90 Wis.2d 110, 114-16, 279 N.W.2d 710, 713-14 (1979) ("intent to annoy” overbroad). The wording of each of these statutes, however, is distinguishable from W.Va.Code § 61-8-16(a)(4) (1984).