Walker v. State

1982 OK CR 5, 639 P.2d 1255, 1982 Okla. Crim. App. LEXIS 209

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 19, 1982
• Docket: No. C-81-400
• Status: Published

Opinions

MEMORANDUM OPINION

BUSSEY, Judge:

The petitioner, Billy Walker, was charged by information with the crime of Indecent Telephone Conversation in violation of Laws 1978, ch. 121, § 1, now 21 O.S.Supp. 1980, § 1021(4). He entered a plea of nolo contendere in the District Court of Comanche County, Case No. CRF-79-616. The trial judge found the petitioner guilty and set punishment at one (1) year imprisonment. From this judgment and sentence the petitioner has perfected his petition for writ of certiorari.

The petitioner does not dispute the findings of the trial court that he was guilty of making phone calls to an unwilling listener at which time he used words that were offensive to decency and calculated to excite lewd thoughts. Rather, he argues that the statute, 21 O.S.Supp.1980, § 1021(4),¹ is void because it is unconstitutionally over-broad and therefore the district court did not have the requisite jurisdiction when it proceeded against him. It is alleged that Section 1021(4) is overbroad because its scope is not limited to cases where the listener does not consent to the use of the proscribed language. A citizen reading the provision might reasonably believe that it criminalizes telling an off-color joke to a willing listener or forbids a sexually oriented conversation between lovers. It is further argued that even assuming the statute is construed to encompass only language defined as obscene under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), it nevertheless violates the First Amendment right to freedom of speech because it does not contain the essential qualifying element, an unwilling listener. See, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

We disagree that the statute is over-broad. “Time, place and manner” limitations upon the exercise of speech have been recognized by the U. S. Supreme Court where they are in furtherance of legitimate state interests. Erzonznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). The State has a legitimate concern in protecting the substantial privacy interests of its citizens from being invaded in an essentially intolerable manner. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Implicit in our statute is the limitation that the prohibited language be spoken to an unwilling listener. A prosecution for an obscene telephone call to which the listener does not object would not occur, for without an offended party to report the incident, it would not come to the attention of law enforcement officials. We find that the means chosen by the Legislature were both appropriate and sufficiently narrowed to achieve the legitimate goal sought to be attained. The statute is constitutional; therefore the Court had proper jurisdiction to find the appellant guilty.

For the above and foregoing reasons, the petition for writ of certiorari is DENIED.

CORNISH, J., concurs. BRETT, P. J., dissents.

1 . Every person who wilfully either:

... speaks any words by means of a telephone to any person which would be offensive to decency or is calculated to excite vicious or lewd thoughts or acts, or any other communicable words, such as is offensive to decency, or is adapted to excite vicious or lewd thoughts or acts, is guilty of a felony....