Galloway v. State

ELDRIDGE, Judge,

dissenting.

The majority interprets “course of conduct” proscribed by Maryland Code (1957, 1996 Repl Vol., 2000 Supp.), Art. 27, § 123, as encompassing the repeated sending of communications, i.e., first class mail containing religious views, expressions of feelings, and apologies for past conduct. The majority also interprets § 123 to authorize criminal punishment for that course of conduct where the sender of the communications had been requested to stop sending them, and where the recipient of the communications was seriously annoyed or alarmed by them. The majority further holds, without any explanations, that such conduct is “[wjithout a legal purpose” within the meaning of § 123(c)(3) and is not encompassed by the “providing] of information” exception in § 123(b).

In my view, Art. 27, § 123, as interpreted by the Court today, is unconstitutionally overbroad and vague in violation of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and Articles 24, 36, and 40 of the Maryland Declaration of Rights. 1 Although the majority purports *653 to place a “judicial gloss” on § 123 (opinion at 610) and to “employ a limiting construction to the statute” (id. at 619), the *654 result of the majority’s efforts, in my opinion, is that the statute now suffers more from overbreadth and vagueness than the literal language crafted by the General Assembly.

I.

Before discussing in detail the unconstitutional overbreadth and vagueness of § 123 as interpreted by the majority, it would be useful to discuss some of the general principles applicable to this case and to clarify what is before the Court.

A.

In its initial discussion of § 123’s constitutionality, the majority relies upon the principles that a statute is presumed valid and that the “party attacking the statute has the burden of establishing its unconstitutionality.” (Opinion at 610-611). While these principles are generally applicable in resolving constitutional challenges, nevertheless, when a statute or other government action interferes with speech or other freedoms protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights, the statute or other government action is subject to scrutiny and must be justified by a showing of sufficient governmental interest. Although the level of scrutiny and the type of governmental interest may vary depending upon the nature of the interference with speech or other protected activity, “the burden is on the government to show the existence of such interest.” Elrod v. Burns, 427 U.S. 347, 362 , 96 S.Ct. 2673, 2684 , 49 L.Ed.2d 547, 559 (1976), and cases there cited.

Even in Eanes v. State, 318 Md. 436, 446 , 569 A.2d 604, 609 , cert. denied, 496 U.S. 938 , 110 S.Ct. 3218 , 110 L.Ed.2d 665 (1990), an aberrant decision relied upon by the majority today, this Court acknowledged:

“The fundamental importance of free speech in our constitutional scheme requires, however, that restrictions on its exercise be subjected to searching scrutiny.”

See, e.g., Denver Area Educ. Telecom. Consortium, v. F.C.C., 518 U.S. 727, 766 , 116 S.Ct. 2374, 2397 , 135 L.Ed.2d 888, 917 *655 (1996) (“the Government cannot sustain its burden of showing that § 10(c) [authorizing cable television operators to prevent the transmission of ‘patently offensive’ programming on public access channels] is necessary to protect children or that it is appropriately tailored to secure that end”); Rubin v. Coors Brewing Co., 514 U.S. 476, 487 , 115 S.Ct. 1585, 1592 , 131 L.Ed.2d 532, 541 (1995) (“the Government carries the burden of showing that the challenged regulation [of speech] advances the Government’s interest ‘in a direct and material way’ ”); U.S. v. National Treasury Employees Union, 513 U.S. 454, 468 , 115 S.Ct. 1003, 1014 , 130 L.Ed.2d 964, 980 (1995) (the Court discussed the different degrees of “the Government’s burden” depending on the nature of the statutory restriction upon speech); Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 661-662, 664 , 114 S.Ct. 2445, 2469, 2470 , 129 L.Ed.2d 497, 530 (1994) (content-based regulations of speech require “application of the most exacting level of First Amendment scrutiny” whereas “the intermediate level of scrutiny [is] applicable to content-neutral restrictions that impose an incidental burden on speech,” although even with respect to the latter restrictions the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way”); Widmar v. Vincent, 454 U.S. 263, 269-270 , 102 S.Ct. 269, 274 , 70 L.Ed.2d 440, 447-448 (1981) (“In order to justify discriminatory exclusion from a public forum based on the religious content of’ speech, the state “must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 71 , 101 S.Ct. 2176, 2184 , 68 L.Ed.2d 671, 682 (1981) (“Because the ordinance challenged in this case significantly limits communicative activity ..., we must scrutinize both the interests advanced by the [governmental entity] to justify this limitation on protected expression and the means chosen to further those interests”); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786 , 98 S.Ct. 1407, 1421 , 55 L.Ed.2d 707, 724 (1978) (the challenged statute must “survive the exacting scrutiny necessitated by a *656 state-imposed restriction of freedom of speech---- ‘[T]he State may prevail only upon showing a subordinating interest which is compelling ... and the burden is on the Government to show the existence of such an interest’ ”); Jakanna v. Montgomery County, 344 Md. 584, 608 , 689 A.2d 65, 76 (1997) (“the burden of proof rests on the County to prove that [the ordinance restricting speech] directly advances a substantial government interest and is not any more extensive than necessary to achieve that interest”).

Consequently, the majority errs in placing the entire burden of establishing unconstitutionality upon the petitioner Galloway. Furthermore, the majority’s reliance on its conclusion, that “ § 123 regulates unprotected conduct” (opinion at 611 n. 9), to justify placing the burden on the petitioner, is somewhat circular.

B.

Although the majority purports to treat separately the issues of overbreadth under the First Amendment and vagueness under due process requirements, the majority does seem to acknowledge the interaction between the two constitutional principles when a statute is challenged on both overbreadth and vagueness grounds. The Supreme Court thus explained in Smith v. Goguen, 415 U.S. 566, 572-573 , 94 S.Ct. 1242, 1246-1247 , 39 L.Ed.2d 605, 611-612 (1974) (emphasis added, footnotes omitted):

“We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doc *657 trine demands a greater degree of specificity than in other contexts.”

See also, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 , 111 S.Ct. 2720, 2732 , 115 L.Ed.2d 888, 908 (1991) (“The prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatory enforcement.... The question is not whether discriminatory enforcement occurred here, and we assume it did not, but whether the [enactment] is so imprecise that discriminatory enforcement is a real possibility”); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 682 , 88 S.Ct. 1298, 1302 , 20 L.Ed.2d 225, 231 (1968) (where statutory standards, challenged “as unconstitutionally vague,” are applied to activity “protected by the First Amendment, ... we start with the premise that ‘[precision of regulation must be the touchstone’ ”); NAACP v. Button, 371 U.S. 415, 432, 433 , 83 S.Ct. 328, 337, 338 , 9 L.Ed.2d 405, 417-418 (1963) (“[Standards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity”).

Moreover, the majority correctly states that when a “challenged statute ... encroaches upon fundamental constitutional rights, particularly First Amendment guarantees of free speech and assembly, then the statute should be scrutinized for vagueness on its face” (opinion at 616), and that “[b]ecause of the potential ‘chilling effect’ that vagueness can have on First Amendment liberties,” a defendant is permitted “ ‘to challenge the validity of a statute even though the statute as applied to the defendant is constitutional.’ ” (Id. at 616-617, quoting Ayers v. State, 335 Md. 602, 625 , 645 A.2d 22, 33 (1994), cert. denied, 513 U.S. 1130 , 115 S.Ct. 942 , 130 L.Ed.2d 886 (1995)). See also, e.g., Los Angeles Police Dept. v. United Rep. Pub., 528 U.S. 32, 38 , 120 S.Ct. 483, 488 , 145 L.Ed.2d 451, 459 (1999) (“‘At least when statutes regulate or proscribe speech ... the transcendent value to all society of constitutionally protected expression is deemed to justify “allowing attacks on overly broad statutes with no requirement that the *658 person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,” ’ ” quoting Gooding v. Wilson, 405 U.S. 518, 520-521 , 92 S.Ct. 1103, 1105 , 31 L.Ed.2d 408, 413 (1972), quoting Dombrowski v. Pfister, 380 U.S. 479, 486 , 85 S.Ct. 1116, 1121 , 14 L.Ed.2d 22, 28 (1965)); Schad v. Borough of Mount Ephraim, supra, 452 U.S. at 66 , 101 S.Ct. at 2181 , 68 L.Ed.2d at 679 (“Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. ‘Because overbroad laws, like vague ones, deter privileged activities], our cases firmly establish appellant’s standing to raise an overbreadth challenge.’ Grayned v. City of Rockford, 408 U.S. 104, 114 , 92 S.Ct. 2294, 2302 , 33 L.Ed.2d 222 (1972)”); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 966-967 , 104 S.Ct. 2839, 2852 , 81 L.Ed.2d 786, 802 (1984), affirming Joseph H. Munson Co. v. Sec. of State, 294 Md. 160 , 448 A.2d 935 (1982).

C.

It is important to clarify just what is and what is not before the Court in the present case. George Galloway and Kimberly Javin had formerly lived together, and later Javin terminated the relationship. Thereafter, in 1995 Galloway was convicted of stalking and kidnapping Javin and was sentenced to prison for 12 years with all but seven years suspended. He was to be on probation for the suspended portion and was directed, as a condition of probation, to have no contact with Javin. Nevertheless, the case at bar is not a prosecution based on Galloway’s 1994 and 1995 conduct and is not a proceeding based upon an alleged violation of probation. Although the majority indicates that the trial judge’s “conclusions” in the present case properly took “into account ... Petitioner’s prior convictions” and “the pre-existing circumstances” (opinion at 651, 652), the majority does not suggest that Art. 27, § 123, is limited to circumstances where there was prior criminal involvement with the victim. Furthermore, nothing in the statutory language would support such a limita *659 tion. Persons who have never previously been convicted of any criminal offense are equally subject to § 123. In addition, the majority appears to rely on the 1995 convictions only as evidence that Galloway in 1997 and 1998 had the “intent to harass, alarm, or annoy” Javin. While this inference may be debatable, it clearly has no bearing upon the vagueness or overbreadth of the statutory language or whether other statutory requirements were met. 2

This case is also not concerned with the restrictions upon First Amendment or other constitutional rights which may legitimately be imposed upon inmates of a correctional institution because of security or other “needs and exigencies of the institutional environment,” Wolff v. McDonnell, 418 U.S. 539, 555 , 94 S.Ct. 2963, 2974 , 41 L.Ed.2d 935, 950 (1974). Thus, regulations placing certain types of restrictions upon mail which an inmate may send from the institution to someone on the outside, or upon mail which an inmate may receive from someone on the outside, may be valid. See, e.g., Bell v. Wolfish, 441 U.S. 520, 548-555 , 99 S.Ct. 1861, 1879-1882 , 60 L.Ed.2d 447, 474-479 (1979); Secretary v. Allen, 286 Md. 133, 137-141 , 406 A.2d 104, 106-109 (1979); Thomas v. State, 285 Md. 458, 462-469 , 404 A.2d 257, 260-263 (1979). Again, § 123 is not limited to inmates of an institution, and the majority does not suggest otherwise. Section 123 applies to persons who are not, and have never been, in a correctional institution or place of detention. The only relevance of Galloway’s inmate status may be to the statutory requirement in § 123(c)(3) that the proscribed conduct be “[wjithout a legal purpose.” Maryland correctional institutions, pursuant to regulations, can censor mail sent by inmates to persons outside of the institutions. See COMAR 12.02.20.02 et seq. See also *660 Thomas v. State, supra, 285 Md. 458 , 404 A.2d 257 . The letters sent by Galloway to Javin were permitted by the institutional authorities.

Furthermore, unlike Rowan v. United States Post Office Department, 397 U.S. 728 , 90 S.Ct. 1484 , 25 L.Ed.2d 736 (1970), relied on by the majority, the case at bar does not involve a clearly and narrowly written statute authorizing a carrier (e.g., the Post Office Department) to refrain from delivering advertisements to recipients who have notified the carrier that they do not wish to receive them, and which is enforceable by a civil remedy. Instead, this is a criminal prosecution, under a vague statute, of one who has repeatedly sent first class mail, expressing feelings, religious views, and apologies, to a person who did not wish to receive such mail. 3

Finally, while the majority refers to the principle that the trial judge’s findings of fact “ ‘will not be disturbed on appeal unless clearly erroneous’ ” (opinion at 650), it should be emphasized that there was no dispute about the basic or historical facts in this case. The case was tried entirely on a written agreed statement of facts which the prosecuting attorney read into the record, plus one additional fact agreed to by the prosecuting attorney and defense counsel, and 13 of the letters which were submitted to the trial court as “sample[s].”

In addition, contrary to the statement in the majority opinion, the trial judge made no finding that the letters “were not intended as the dissemination of mere religious instruction.” (Opinion at 650). In rendering his verdict, the trial judge expressly made only one finding of fact, namely that “the intent of the defendant’s letters was clearly to annoy or to harass.” 4 No finding was made concerning the exception *661 in § 123(b) for “peaceable activity intended to ... provide information to others.” At the time the verdict was rendered, no finding was made relating to the element of the offense in § 123(c)(3) that the conduct be “[wjithout a legal purpose.” No finding was made that the letters themselves contained threats. And, in this connection, Ms. Javin’s statement to the trial court indicated that the grounds for her fears were primarily the events in 1994 and 1995 rather than the letters. She stated:

*662 “MS. JAVIN: Going in the car down that dirt road he told me that he was going to kill me and bury my body with a piece of machinery that was on the side of the road. All during that time he threatened to kill me.

“So I have real fear and reason to believe that when he gets out, he will follow through with what he had said he was going to do. He is clever enough not to write it down in his letters so that he can follow through with his plan for sure.”

* * *

“I have spoken to people at the prison to try to get them to stop him from writing letters. But even if he stopped writing the letters, I still am fearful for when he gets out what he is going to do. I just don’t know how I am going to be protected.”

Furthermore, in assessing the facts in a case such as this, we must heed the Supreme Court’s admonition that “in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 , 104 S.Ct. 1949, 1958 , 80 L.Ed.2d 502, 515 (1984), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286 , 84 S.Ct. 710, 728-729 , 11 L.Ed.2d 686 (1964). See also, e.g., Gentile v. State Bar of Nevada, supra, 501 U.S. at 1038 , 111 S.Ct. at 2726 , 115 L.Ed.2d at 900 (“Full deference to these factual findings does not justify abdication of our responsibility to determine whether petitioner’s statements can be punished consistent with First Amendment standards”); Bachellar v. Maryland, 397 U.S. 564, 566 , 90 S.Ct. 1312, 1313 , 25 L.Ed.2d 570, 573 (1970) (“Since petitioners argue that their conduct was constitutionally protected, we have examined the record for ourselves. When ‘a claim of constitutionally protected right is involved, it “remains our duty * * * to make an independent examination of the whole record.” ’ Cox v. Louisi *663 ana (I), 379 U.S. 536 , 545 n. 8, 85 S.Ct. 453 , 13 L.Ed.2d 471 (1965)”). 5

D.

The majority relies upon the recitation in § 123(b) that the statute “does not apply to any peaceable activity intended to express political views or provide information to others.” The majority states that this exception, which “ ‘expressly excludes constitutionally protected speech from its reach,’ ” 6 distinguishes § 123 from other harassment statutes which have been held unconstitutional. (Opinion at 644).

As this Court has pointed out, however, a recitation in a statute that the statute does not apply so as to impair constitutional rights does not affect the resolution of the underlying constitutional issues; it simply equates the constitutional issues with the statutory interpretation issues. For example, in Washington Nat’l Arena v. Pr. Geo’s Co., 287 Md. 38, 44 , 410 A.2d 1060, 1064 , cert. denied, 449 U.S. 834 , 101 S.Ct. 106 , 66 L.Ed.2d 40 (1980), involving the constitutionality of a retroactive statute which contained a similar disclaimer that the statute did not apply so as to impair constitutional rights, this Court stated:

“The issue in this case could be viewed either as one of statutory interpretation or as a matter of constitutionality. It makes no practical difference whichever way it is viewed. The Legislature, in Ch. 129 of the Acts of 1976, expressly stated its intention that the statute should not apply ‘whenever constitutionally protected rights would be impaired.’ Consequently, from a technical viewpoint, if the retroactive application of the 1976 tax statute to the recordation of written instruments at various times between September 1968 and 1976 would impair taxpayers’ constitutional rights, *664 then, as a matter of legislative intent, the statute does not apply. However, in order to determine the application of Ch. 129 on this statutory interpretation ground, it is obviously necessary to resolve the constitutional question.”

See also Turner Broadcasting System, Inc. v. F.C.C., supra, 512 U.S. at 642-648 , 114 S.Ct. at 2459 , 129 L.Ed.2d at 518 (“Nor will the mere assertion of a content-neutral purpose be enough to save a law which” is not content-neutral).

E.

The “[pjrohibited conduct” under Art. 27, § 123(c), requires for a violation, inter alia, that the defendant’s course of conduct be “[w]ith intent to harass, alarm, or annoy the other person.... ” § 123(c)(1). The majority states that, instead of an intent to harass, alarm, or annoy “the other person,” a “reasonable person standard should be read into the language of subsection (c)(1) of § 123, and with that judicial gloss, § 123 survives constitutional scrutiny.” (Opinion at 610-611). Thus, in lieu of “the other person,” the object of the intent set forth in subsection (c)(1) becomes “a reasonable person.”

This Court, however, has generally declined to re-write or insert words into statutory language in order to save the constitutionality of statutes. Just this year, in Montrose Christian School v. Walsh, 363 Md. 565, 594-596 , 770 A.2d 111, 128-129 (2001), we refused to construe the word “purely” in a statute as “primarily” or “some” in order to uphold the statute under the First Amendment and Article 36 of the Maryland Declaration of Rights. Instead, we held the statute unconstitutional, pointing out that a substitution of saving language “ ‘would be to re-draft the statute under the guise of construction,’ ” Montrose Christian School v. Walsh, supra, 363 Md. at 595 , 770 A.2d at 129 , quoting Davis v. State, 294 Md. 370, 378 , 451 A.2d 107, 111 (1982). See Interstate Circuit, Inc. v. City of Dallas, supra, 390 U.S. at 690 , 88 S.Ct. at 1306 , 20 L.Ed.2d at 235 (“It is not our province to draft legislation”).

In Wheeler v. State, 281 Md. 593, 598 , 380 A.2d 1052, 1056 (1977), cert. denied, 435 U.S. 997 , 98 S.Ct. 1650 , 56 L.Ed.2d 86 *665 (1978), this Court held a state statute invalid on equal protection grounds, with Judge Orth stating for the Court:

“We are not at liberty to bring about a different result by inserting or omitting words to make the statute express an intention not evidenced in its original form.”

See also Birmingham v. Board, 249 Md. 443, 449 , 239 A.2d 923, 926 (1968) (“Nor have we the power to correct an omission in the language of a statute, even though the omission was the obvious result of inadvertence”).

The majority, in concluding that “§ 123 is salvageable because we shall employ a limiting construction to the statute” (opinion at 619), goes on to rely on the statement in Schochet v. State, 320 Md. 714, 729 , 580 A.2d 176, 183 (1990), that “ ‘[gjeneral statutes ..., which, if given their broadest and most encompassing meaning, give rise to constitutional questions, have regularly been the subject of narrowing constructions so as to avoid the constitutional issues.’ ” (Opinion at 619). As pointed out in the Schochet opinion, however, there was statutory “silence” on the coverage issue there involved, and there was a long line of decisions in this Court confirming that the statute did not apply under the circumstances of that case. Schochet, 320 Md. at 731-734 , 580 A.2d at 184-185 . The statute involved in the case at bar, however, is not “silent” with regard to the object of the intent set forth in subsection (c)(1). Under the plain language of subsection (c)(1), the defendant must have the intent to “harass, alarm, or annoy the other person” and not to “harass, alarm or annoy” an objective “reasonable person” (emphasis added). Moreover, there is no long line of decisions by this Court applying Art. 27, § 123.

Furthermore, in the Schochet case the narrowing interpretation of the statute was employed to reverse the defendant’s criminal conviction; thus, no issue concerning unfair retroactivity was involved. In the present case, however, the defendant allegedly committed the offense and was convicted prior to this Court’s placing a “judicial gloss” on the statute. See, e.g., Marks v. United States, 430 U.S. 188, 191-192 , 97 S.Ct. 990, 992-993 , 51 L.Ed.2d 260, 265 (1977) (While “[t]he Ex Post *666 Facto Clause ... does not of its own force apply to the Judicial Branch of government ... [,] the principle on which the Clause is based ... is fundamental to our concept of constitutional liberty. * * * As such, that right is protected against judicial action by the Due Process Clause ...”); Bouie v. Columbia, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964). See also the recent opinion in Rogers v. Tennessee, 532 U.S. 451 , —, 121 S.Ct. 1693, 1697, 1703 , 149 L.Ed.2d 697, 704, 711 (2001) (“[Limitations on ex post facto judicial decisionmaking are inherent in the notion of due process. * * * [Fundamental due process prohibits the punishment of conduct that cannot fairly be said to have been criminal at the time the conduct occurred ...”).

Nonetheless, for reasons later set forth in Part II of this dissent, I do not believe that inserting “a reasonable person standard” in subsection (c)(1) cures the overbreadth and vagueness defects in Art. 27, § 123, as interpreted by the majority.

II.

I shall now turn specifically to the language of Art. 27, § 123, and the majority’s interpretation of that language.

A.

Section 123 reads as follows:

“ § 123. Harassment.

“(a) Course of conduct defined. — In this section ‘course of conduct’ means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.

(b) Applicability. — This section does not apply to any peaceable activity intended to express political views or provide information to others.

(c) Prohibited conduct. — A person may not follow another person in or about a public place or maliciously engage in a *667 course of conduct that alarms or seriously annoys another person:

(1) With intent to harass, alarm, or annoy the other person;

(2) After reasonable warning or request to desist by or on behalf of the other person; and

(3) Without a legal purpose.

(d) Penalty. — A person who violates this section is guilty of a misdemeanor and, upon conviction, is subject to a fine not exceeding $500 or imprisonment for not more than 90 days or both.”

The conduct proscribed by the statute is set forth in subsection (c), and the State must prove four distinct elements to bring the conduct within the prohibition of subsection (c).

First, the State must prove either that the defendant followed another person in or about a public place or, alternatively, that the defendant maliciously engaged in “conduct that alarms or seriously annoys” the other person. The alternative “engaged in conduct” element was allegedly involved in the present case.

Second, under subsection (c)(1), the State must prove that the defendant acted with one of the alternative requisite intents, namely to harass or to alarm or to annoy the other person. Interestingly, with respect to “annoy,” under the initial language of subsection (c) the conduct must in fact “seriously” annoy the other person, whereas the accompanying intent under subsection (c)(1) does not require “serious” annoyance. Also, the prohibited course of conduct under the initial part of subsection (c) is limited to that which alarms or seriously annoys, but the accompanying intent under subsection (c)(1) adds “harass” to “alarm, or annoy.”

Third, under subsection (c)(2), it must be shown that the defendant had, prior to the charged conduct, been given a reasonable warning or request to desist. This may be the only element of the offense which is set forth with reasonable clarity and is not muddled by the majority.

*668 Fourth, under subsection (c)(3), the prosecution must prove that the defendant acted “[without a legal purpose.”

In a case where the State establishes the various elements of the offense set forth in subsection (c), the defendant nevertheless cannot be convicted under § 123 if his conduct fell within either of the exceptions delineated in subsection (b). Subsection (b) excepts from the coverage of the statute peaceable activity which is intended either “to express political views” or to “provide information to others.”

Subsection (a) of the statute is the definitional subsection, although it contains a partial definition of only one of the phrases in the statute, namely “course of conduct.” The statute contains no definitions of “harass, alarm, or annoy.” It contains no definitions of the element “[w]ithout a legal purpose” or of the exception for “providing] information to others.”

Where the conduct prohibited by § 123 consists of sending communications, the majority indicates that the prohibition relates to “ ‘the manner and means employed to’ ” send the communications “ ‘rather than their content’ ” and that “ ‘the statute proscribes conduct, rather than the content of the mailings’ ” (opinion at 642, quoting from a Connecticut case). The majority shortly thereafter again indicates that “ ‘[t]he statute is not directed at the content of speech’ ” (opinion at 643, n. 35, quoting from a Pennsylvania case). The majority goes on to note that “content must be examined” but states that where there is an intent to harass, alarm, or annoy, the content “no longer falls under protected speech” (opinion at 644, n. 36). Later in the opinion, the majority reiterates that content is irrelevant because “[t]he mere sending and receipt of that volume of letters, coming after the warnings to Galloway, even had Javin not opened them, supported a reasonable inference of Galloway’s unlawful intent and adverse effects on the victim.” (opinion at 651-652). The majority’s position seems to be that, where the State establishes the intent, effect, and warning elements of subsections (c)(1) and (c)(2), the content of the speech is utterly irrelevant. The majority’s *669 view of the statute is puzzling in light of the distinct requirement in subsection (c)(3) that the State prove that the conduct is “[w]ithout a legal purpose” and the exceptions in subsection (b) for the “express[ion] of political views” and “provid[ing] information to others.” How does a court conclude that the sending of letters is without a legal purpose, or is not the expression of political views, or is not the providing of information, without looking at the content of the letters? Somewhat inconsistently, the majority opinion later relies upon the religious content of the letters as evidence supporting a finding which “the trial judge could” make with regard to Galloway’s intent, (opinion at 651, emphasis added).

When the prohibited conduct involves speech or the sending of communications, it seems clear that § 123 is concerned with the content of the speech or communications. This is shown by the exceptions in subsection (b) and the “legal purpose” element in subsection (c)(3). Accordingly, § 123, when applied to oral or written speech or communications, requires the “application of the most exacting level of First Amendment scrutiny,” rather than “the intermediate level of scrutiny,” Turner Broadcasting System, Inc. v. F.C. C., supra, 512 U.S. at 661-662 , 114 S.Ct. at 2469 , 129 L.Ed.2d at 530 . Under either level of scrutiny, however, the statute suffers from overbreadth. Moreover, the inconsistency in the majority’s interpretation of the statute, with respect to content, helps make a vague statute even vaguer.

B.

Throughout much of the majority opinion, the Court relies upon the “[without a legal purpose” element in subsection (e)(3) and the exceptions in subsection (b) as “limiting language” and “inherent restrictions” having “a definite and clear meaning that helps in setting the boundaries for the enforcement of § 123” (opinion at 620-622, 627, 630-631, 637). The majority further points to subsections (c)(3) and (b) as “restrictive language [which] helps to abate any overbreadth” (opinion at 644). The Court also relies on these provisions in distinguishing the Maryland statute from statutes in other *670 jurisdictions which have been held unconstitutional on over-breadth and/or vagueness grounds (e.g., opinion at 620, 648-649).

After placing so much reliance upon subsections (c)(3) and (b) as “inherent restrictions,” however, the majority goes on in the later part of its opinion to construe and apply these provisions in a way that renders them largely nugatory. At the very least, the majority’s construction and application of subsections (c)(3) and (b) leave a reader in total bewilderment as to the meaning of the provisions. Instead of helping to cure the overbreadth and vagueness associated with § 123’s prohibition against annoying or alarming conduct, the majority’s construction and application of subsections (c)(3) and (b) exacerbate the statute’s overbreadth and vagueness.

As previously discussed, subsection (c)(3) requires the State to prove, as an element of the § 123 offense, that the defendant’s conduct was “[wjithout a legal purpose.” If this provision were given its plain, broad, ordinary meaning, it would materially help to overcome the overbreadth and vagueness inherent in a prohibition against annoying or alarming conduct. Under the plain language of subsection (c)(3), as applied to letters, an illegal purpose would be if the letters solicited someone to commit a crime, or were involved in a criminal conspiracy, or contained threats in violation of another statute, or contained matter in violation of federal law or postal regulations, or were smuggled out of a correctional institution in violation of prison regulations, or discussed plans for an escape from prison. Many other examples of illegal purposes could be set forth. But what is illegal about a series of letters, presumably permitted by prison and postal regulations, from an obsessive former boyfriend containing expressions of religious beliefs, emotional feelings, and apologies for past conduct? In this connection, the trial judge’s remarks to Galloway when he was first sentenced to prison in 1995 are pertinent. Judge Thieme, the sentencing judge, then stated:

“[Y]ou can write her every day. There is nothing I can do about it. ' You can call her on the phone; there is nothing I can do about it.”

*671 The trial judge in the case at bar, in his opinion denying the defendant’s pre-verdict motions, seemed to hold that Galloway’s letters were without a legal purpose because they were “personal.” He did not explain why a “personal” communication is without a legal purpose, whereas a non-personal communication would have a legal purpose. If the meaning of subsection (c)(3) is that all “personal” conduct is “[wjithout a legal purpose,” the subsection would do very little to cure the overbreadth and vagueness inherent in a statute punishing annoying or alarming conduct.

The majority indicates, and I agree, that “legal purpose” has a clearer and more definite meaning than the phrase “legitimate purpose” found in some statutes which have been invalidated in other jurisdictions, and that “ ‘[l]egal’ derives from or is found in law,” whereas “ ‘legitimate’ ... encompasses that which is legal and beyond.” (Opinion at 636-638). The majority fails to tell us, however, what is not “legal” with respect to sending letters of the type here involved.

Finally, the majority simply concludes its opinion by stating: “It also is evident from the record that Petitioner acted without a legal purpose.” (Opinion at 652). We are not informed as to what in the record makes this evident. The Court today gives utterly no meaning to subsection (c)(3) and proceeds as if the element were not in the statute. Under these circumstances, the majority’s repeated reliance upon subsection (c)(3), as restrictive language helping to cure § 123’s overbreadth and vagueness, leaves one dumbfounded.

The same is true of the majority’s treatment of the exception in subsection (b) for “peaceable activity intended to ... provide information to others.” Again, if this exception were given its plain, broad, ordinary meaning, it would also help in curing the overbreadth and vagueness in the statutory prohibition against annoying or alarming conduct. And the majority initially indicates that the exception is broad, exempting from the statute’s coverage “ ‘constitutionally protected activity.’ ” (opinion at 638). Nevertheless, the majority goes on to hold that Galloway’s letters expressing religious views, feel *672 ings, and apologies do not constitute the expression of constitutionally protected activity. Under the majority’s opinion, it would appear that the conduct of a minister of a religious sect, who repeatedly sends unwanted letters or pamphlets setting forth religious views similar to Galloway’s, to persons who are seriously annoyed by them, would not fall within the exception in subsection (b) and could be criminally punished. On the other hand, according to the majority, repeated “commercial solicitations” and the sending of “leaflets” concerning “store openings” (opinion at 638), are protected by the exception in subsection (b). The distinctions suggested by the majority concerning subsection (b) are, to say the least, puzzling.

With regard to both the “legal purpose” element in subsection (c)(3) and the exceptions in subsection (b), the majority’s ultimate position is set forth towards the end of the opinion where the Court states (Opinion at 650, emphasis supplied):

“After the initial few letters, however, Galloway was warned multiple times that Javin did not wish to receive communications from him. Those instructions notwithstanding, he continued his course by sending a large.number of additional letters. From this, a reasonable fact-finder reasonably could conclude that Galloway’s intent was, in fact, to harass Javin, rather than merely to engage in a peaceable activity, with a legal purpose.”

The majority seems to be saying that, if the intent element of subsection (c)(1) is established, then the “peaceable activity” exceptions in subsection (b) are inapplicable and the “[wjithout legal purpose” element in subsection (c)(3) is proven. This approach renders subsections (b) and (c)(3) entirely nugatory.

Obviously, under the structure and wording of the statute, one can send a communication with more than a single intent. One can intend “to harass, alarm, or annoy,” and also intend to furnish information. If conduct is not accompanied by an “intent to harass, alarm, or annoy,” the conduct is not prohibited, and there is no occasion to consider the statutory exemptions in subsection (b) for political views or the providing of information. The exception in § 123(b) for the expression of *673 political views or the communicating of information only becomes pertinent and meaningful when the expression or communication is with the intent to harass, alarm, or annoy. Under the majority’s reasoning, if a candidate for public office repeatedly mails a “plethora” 7 of campaign literature to a particular person, after having been informed that the recipient does not wish to receive such political literature, a fact-finder could determine that the candidate had an intent to annoy and that the candidate violated this criminal statute despite the exception for the expression of political views. I do not believe that either the language of § 123 or the First Amendment or Article 40 of the Maryland Declaration of Rights would permit this result.

Similarly, the “[wjithout legal purpose” element in subsection (c)(3) is totally distinct from the “intent” element in subsection (c)(1). Under Art. 27, § 123, the State must prove both that the defendant had the “intent to harass, alarm, or annoy the other person” and that the defendant’s conduct was “[wjithout a legal purpose.” The majority, by contrasting the intent to harass with legal purpose, and suggesting that the intent to harass negates any legal purpose, has merged two distinct elements into one. Furthermore, under the majority’s view of the Maryland statute, neither subsection (b) nor subsection (c)(3) can serve as language limiting the over-breadth and vagueness inherent in subsections (c) and (c)(1). If proof of the intent element in (c)(1) means that (b) and (c)(3) are inapplicable, they are obviously not restrictions upon the statute’s broad punishment of intentional annoying or alarming conduct.

C.

The majority opinion acknowledges that courts in other jurisdictions have held that harassment statutes, prohibiting conduct intended “to alarm, annoy, or harass” another person, are unconstitutionally overbroad and/or vague. In fact, the *674 majority of cases over the past 30 years, dealing with the constitutionality under the First and Fourteenth Amendments of harassment statutes similar to Maryland’s Art. 27, § 123, have held that such statutes are unconstitutional. The Court today, however, purports to distinguish some of those cases on the grounds that the Maryland statute has “inherent limitations” such as the requirement of no “legal purpose” in subsection (c)(3) or the exception for “providing] information to others” in subsection (b), and that the Maryland statute “is salvageable because we shall employ a limiting construction” by inserting the words “reasonable person” in subsection (c)(1). (Opinion at 619). The majority also announces that “we shall not follow those jurisdictions that have found harassment statutes to be unconstitutionally vague.” (Ibid.).

For the reasons set forth above in Part II B of this dissenting opinion, the “[wjithout legal purpose” element in subsection (c)(1), and the exceptions in subsection (b), as construed and applied by the majority today, are not “inherent limitations.” Instead, the majority’s interpretation and application of those provisions enhance the statute’s overbreadth and vagueness. Furthermore, as discussed below, the insertion of “reasonable person” language in subsection (c)(1) does not cure the inherent vagueness and overbreadth of a statute which criminally punishes one who intentionally “annoys” or “alarms” someone else, regardless of whether the latter is a “reasonable person.”

In rendering his verdict, the trial judge specifically found that Galloway intended “to annoy or to harass” within the meaning of subsection (c)(1) (emphasis supplied). The judge, however, did not explain the difference between “annoy” and “harass,” if any, and did not say which intent Galloway had.

The Supreme Court in Coates v. Cincinnati, 402 U.S. 611, 611-614 , 91 S.Ct. 1686, 1687-1688 , 29 L.Ed.2d 214, 217 (1971), held that an ordinance which criminally punished persons who assembled on a sidewalk and engaged in “conduct” which was “annoying to persons passing by” was “unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad *675 because it authorizes the punishment of constitutionally protected conduct.” As to vagueness, the Supreme Court continued ( 402 U.S. at 614 , 91 S.Ct. at 1688 , 29 L.Ed.2d at 217-218 ):

“Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, ‘men of common intelligence must necessarily guess at its meaning.’ Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322, 328 .

“It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city’s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. Gregory v. Chicago, 394 U.S. 111, 118, 124-125 , 89 S.Ct. 946, 950, 953-954 , 22 L.Ed.2d 134, 139-140, 143-144 (Black, J., concurring). It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.”

The same may be said of the “conduct” prohibited by § 123. Except for the statement in subsection (a) that the conduct must be a pattern consisting of a series of acts, neither the words of the statute nor the majority opinion in this case tell us what type of “conduct” is prohibited. The word “conduct” itself covers virtually the entire range of human activity, and the only statutory limitation as to the type of conduct is that it be repeated and seriously annoying or alarming.

The majority’s insertion of a “reasonable person” standard does little or nothing to cure the vagueness. The Supreme Court’s language in Coates is still applicable even with the insertion of a reasonable person standard, i.e., “[cjonduct that annoys some [reasonable] people does not annoy others.” 402 *676 U.S. at 614 , 91 S.Ct. at 1688 , 29 L.Ed.2d at 217 . Repeated letters from an obsessive former boyfriend, setting forth his feelings, apologizing for past conduct, and expressing his religious views, might annoy some reasonable recipients but not annoy other reasonable recipients. While some reasonable persons might be annoyed, other reasonable persons might simply ignore such letters, or suggest that the sender “get a life,” or suggest that he seek professional help, or view him as immature and foolish, or merely feel sorry for him. Although almost anyone who had previously been a victim of the type of criminal activity that Galloway had committed in 1994 and 1995 would be annoyed and alarmed by the repeated letters, neither the statute nor the majority’s interpretation of it is confined to this situation. As earlier discussed, § 123 is not limited to circumstances where there was prior criminal involvement with the victim, or prior threats of harm, or a prior domestic violence protective order. Such a limited statute might well pass constitutional muster. Such a statute, in the language of Coates v. Cincinnati, would appear to be “directed with reasonable specificity toward the conduct to be prohibited.” 402 U.S. at 614 , 91 S.Ct. at 1688 , 29 L.Ed.2d at 217 . 8 The prohibition of annoying conduct in § 123, however, particularly as interpreted by the majority, is as vague as the prohibition in the statute involved in Coates . 9

The Supreme Court in Coates also found that the statute involved was overbroad in violation of the First Amendment, *677 saying ( 402 U.S. at 615-616 , 91 S.Ct. at 1688-1689 , 29 L.Ed.2d at 218 , footnotes and citations omitted):

“But the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates the constitutional right of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms.... The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is ‘annoying’ because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.”

Similarly, the First and Fourteenth Amendments, as well as Articles 36 and 40 of the Maryland Declaration of Rights, would ordinarily preclude a state from criminally punishing one who writes letters expressing feelings, religious views, and apologies, to someone with whom the writer had previously cohabited. Again, while these constitutional provisions might allow such punishment under the particular facts of the present case, neither the statutory language nor the majority’s interpretation of the statute is so limited. As the Supreme Court emphasized in Coates v. Cincinnati, and numerous other cases, conduct otherwise protected by the First Amend *678 ment cannot be prohibited or punished merely because it annoys, or angers, or offends, or induces unrest, or is objectionable to, or is obnoxious to others. See, e.g., Texas v. Johnson, 491 U.S. 397, 408-409 , 109 S.Ct. 2533, 2542 , 105 L.Ed.2d 342, 356 (1989) (relying, inter alia, on Coates v. Cincinnati); City of Houston v. Hill, 482 U.S. 451, 459-467 , 107 S.Ct. 2502, 2508-2512, 2512 , 96 L.Ed.2d 398, 410-415 (1987) (same); Gooding v. Wilson, 405 U.S. 518, 521-528 , 92 S.Ct. 1103, 1105-1109 , 31 L.Ed.2d 408, 413-418 (1972); Cohen v. California, 403 U.S. 15, 21-25 , 91 S.Ct. 1780, 1786-1788 , 29 L.Ed.2d 284, 291-294 (1971); Bachellar v. Maryland, supra, 397 U.S. at 567, 90 S.Ct. at 1314 , 25 L.Ed.2d at 573-574 . Moreover, the “other persons” referred to in these and similar cases have often been large segments of the general public; consequently, they would seem to include “reasonable persons.”

The majority distinguishes the Supreme Court’s holdings in Coates v. Cincinnati, saying: “The Maryland statute is distinguishable because it proscribes a course of conduct and requires specific intent on the part of the defendant ...” (opinion at 622, n. 16). The ordinance involved in Coates, like § 123, prohibited “conduct” which was “annoying.” While the Coates ordinance may not have required repeated activity, this difference has little or no relevance to the vagueness or overbreadth inherent in punishing “annoying” conduct. The factor of repetition does not clarify the vagueness or over-breadth associated with the words “annoy” or “alarm.” The same is true of the adjective “serious” which modifies “annoy.” While the requirements of repetition or seriousness may slightly reduce the number of prosecutions under the statute, they shed no light on what constitutes the prohibited “annoying'conduct.” Moreover, where activity is protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights, the protection applies to repeated activity as well as a single episode. 10

*679 Likewise, the requirement of a specific intent to annoy or alarm in subsection (c)(1) of the Maryland statute does not cast any light on what type of conduct is criminally “annoying” or “alarming.” The same vague and broad language used in the initial part of subsection (c) is also used in subsection (c)(1) containing the intent requirement. Prohibiting intentional unknown conduct is just as vague as prohibiting unintentional unknown conduct.

Furthermore, activity protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights remains protected when it is intentional. In fact, most conduct protected by the rights to freedom of speech and freedom of religion is intentional. With a few exceptions not applicable here, neither the element of intent nor the element of malice removes from oral or written speech the protections of the First Amendment and Articles 36 and 40 of the Declaration of Rights. As the Supreme Court pointed out in Hustler Magazine v. Falwell, 485 U.S. 46, 53 , 108 S.Ct. 876, 880 , 99 L.Ed.2d 41, 50 (1988),

“many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64 , 85 S.Ct. 209 , 13 L.Ed.2d 125 (1964), we held that even when a speaker or writer is motivated by hatred or illwill his expression was protected by the First Amendment.... ”

Coates v. Cincinnati, as well as many other cases invalidating statutory provisions which attempt to punish annoying conduct, are not distinguishable from the present case on any principled or logical basis. 11 A case involving a prosecution, *680 under a harassment statute similar to Maryland’s, for mailing a large number of “annoying” written documents, is Bolles v. People of Colorado, 189 Colo. 394 , 541 P.2d 80 (1975). The facts in Bolles were that the defendant mailed to various homes 2400 pieces of mail. Each piece of mail contained, in a plain envelope, “twelve points of information regarding abortion and its practice.... It also included a color brochure portraying numerous aborted fetuses and one live baby.” Bolles , 189 Colo, at 396, 541 P.2d at 81 . The defendant was prosecuted under a Colorado statute which was more limited than Maryland’s, and which provided for the punishment of one who “communicates with a person, anonymously or otherwise by telephone, telegraph, mail, or any other form of communication, in a manner likely to harass or cause alarm,” and with the “intent to harass, annoy, or alarm another person.” In holding that the statute was overbroad and unconstitutional under the First and Fourteenth Amendments, *681 the Supreme Court of Colorado stated (189 Colo, at 397-398, 541 P.2d at 82 ):

“However, a statute intended to proscribe unprotected activity must not also proscribe activity protected under the First Amendment.

“In short, in the First Amendment area, a statute must be narrowly drawn to implement legitimate and constitutional legislative purposes.

“The statute before us in this case is anything but narrowly drawn. It could, of course, be relied upon to punish for obscene, libelous, riotous communication which is probably constitutionally permissible. Yet the crucial factor is that this statute could also be used to prosecute for communications that cannot be constitutionally proscribed.

“To illustrate the overbreadth of this statute, it is useful to first define some of the significant terms used in the statute. According to Webster’s New International Dictionary of the English Language, (3d ed. Unabridged, 1961), ‘annoy’ means ‘to irritate with a nettling or exasperating effect.’ ‘Nettling’ means ‘to arouse displeasure, impatience, or anger in: provoke, vex.’ ‘Alarm’ means ‘to arouse to a sense of danger; to put on the alert; to strike with fear; fill with anxiety as to threaten danger or harm.’

“If we substitute these definitions in place of the terms used in the statute, we find that one is guilty of the crime of harassment if he intends to ‘alarm’ another person-arouse to a sense of danger-and communicates to that other person in a manner likely to cause alarm. It would therefore be criminal in Colorado to forecast a storm, predict political trends, warn against illnesses, or discuss anything that is of any significance.

“So, also, if one has the intent to annoy — to irritate with a nettling or exasperating effect — and he communicates with another in a manner that is likely to cause alarm — to put on the alert — he too is guilty of harassment. The absurdity of this is patently obvious to anyone who envisions our society *682 in anything but a state of languid repose. The First Amendment is made of sterner stuff.”

The lower court in the Bolles case had “attempted to save the statute from successful constitutional attack by engrafting onto it a statement that it applied only to conduct engaged in for ‘no legitimate purpose.’ ” Bolles, 189 Colo. at 398 , 541 P.2d at 83 . The Colorado Supreme Court, however, pointed out that the inserted language itself “injects a vagueness into the statute which cannot withstand First Amendment scrutiny.” Ibid. The same is true of the “[wjithout legal purpose” element of the Maryland statute as construed and applied by the majority today.

With respect to the prosecution’s argument in Bolles that a recipient’s “right of privacy in the home justifies the broad wording of the subsection in question” (189 Colo, at 399, 541 P.2d at 83 ), the Supreme Court of Colorado responded (ibid.):

“Use of the mail to convey one’s message no doubt encroaches on the sanctity of the home; however, the intrusion into the recipient’s privacy is only minimal since he is not only free to discard at once any mail that he does not wish to receive, but can also ensure that he will not receive any more like it from the sender. See Rowan v. United States Post Office Department, supra.”

Factually similar to the present case is Kramer v. Price, 712 F.2d 174 (5th Cir.1983), in which the United States Court of Appeals for the Fifth Circuit, in an opinion by Judge John Minor Wisdom, held that the Texas harassment statute was unconstitutionally vague. The Texas statute was also more specific than Maryland’s harassment statute, as the proscribed conduct under the Texas statute was limited to certain types of telephone and written communications. It provided for the punishment of one who intentionally “communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner” and, by such “action intentionally, knowingly, or recklessly annoys or alarms the recipient,” 712 F.2d at 176 . The defendant in the Kramer case was a former girlfriend of John Keiser, who had *683 cohabited with Reiser, and who, after Reiser’s marriage to another woman, had mailed to him letters and postcards that “were so voluminous that they filled two to three grocery sacks.” Id. at 175 n. 1. Also, one of the letters was clearly threatening to Reiser’s and his wife’s new baby. The United States Court of Appeals for the Fifth Circuit, relying on and quoting from Coates v. Cincinnati, supra, and pointing to the “inherent vagueness” in “the terms ‘annoy’ and ‘alarm,’ ” held that “the statute falls on vagueness grounds.” Id. at 178. 12

Other cases holding similar statutory language unconstitutional, on overbreadth and/or vagueness grounds, include, e.g., People v. Hickman, 988 P.2d 628, 641-642 (Colo.1999) (“ ‘act of harassment’ as used in [the statute] encompasses a substantial amount of constitutionally protected communications”); People v. Norman, 703 P.2d 1261, 1266-1267 (Colo.1985) (“the terms ‘annoy’ and ‘alarm,’ when given their conventional meanings, [are] so broad that the most innocuous comment about a debatable or unpleasant topic might subject a person to criminal prosecution under” the harassment statute); Thelen v. State, 272 Ga. 81, 82 , 526 S.E.2d 60 (2000) (relying on Coates v. Cincinnati, the court invalidated on vagueness grounds the proscription of specified conduct which “annoys” others); People v. Klick, 66 Ill.2d 269 , 5 Ill.Dec. 858 , 362 *684 N.E.2d 329 (1977) (invalidating on overbreadth grounds, based on Coates v. Cincinnati and similar cases, a statute proscribing telephone calls with intent to annoy); State v. Bryan, 259 Kan. 143, 147-148 , 910 P.2d 212, 216-217 (1996) (pointing out that, since Coates v. Cincinnati, “[o]ther courts have followed the holding in Coates in determining that statutes prohibiting annoying conduct are impermissibly vague”); State v. Jamgochian, 109 R.I. 17, 24 , 279 A.2d 923, 927 (1971) (holding unconstitutional, under Coates v. Cincinnati, that portion of an ordinance making it unlawful for a person to stand on a sidewalk and, inter alia, “annoy passers-by”); May v. State, 765 S.W.2d 438, 440 (Tex.Crim.App.1989) (“the inherent vagueness of the statute ..., in attempting to define what annoys and alarms people, ... causes it to be unconstitutionally vague”); City of Everett v. Moore, 37 Wash.App. 862, 866 , 683 P.2d 617, 619 (1984) (In holding that provisions of an harassment statute are invalid under Coates v. Cincinnati and similar cases, the court stated that the statute “does not draw a reasonably clear line between the kind of annoying conduct which is criminal and that which is not”); State v. Dronso, 90 Wis.2d 110, 116-117 , 279 N.W.2d 710, 714 (1979) (“A statute which subjects a telephone caller to criminal sanctions ... for calling with intent to annoy ... is overbroad as it may reasonably be interpreted to prohibit free speech which is constitutionally protected by both the United States and Wisconsin Constitutions”). 13

*685 D.

As previously discussed, a narrowly drawn statute targeting conduct like Galloway’s, under the circumstances here, might well be constitutional. Moreover, § 123 itself might well be constitutional if the majority were willing to give effect to the plain language of subsection (b) which broadly exempts the providing of information and of subsection (c)(3) which requires the State to prove illegality of purpose. Giving effect to the plain language of subsections (b) and (c)(3) would substantially limit and clarify the broad and vague words in (c) and (c)(1). Of course, giving effect to the words of subsections (b) and (c)(3) would require a reversal of Galloway’s conviction in the present case. With all due respect, it is anomalous that the majority is willing to re-write subsection (c)(1) in order to sustain the conviction, but it is not willing to apply the literal language enacted by the General Assembly in subsections (b) and (c)(3) which would result in a reversal.

This case is a classic example of the saying that hard cases make bad law. No reasonable person would condone Galloway’s atrocious conduct. Nevertheless, sustaining his conviction and 90 day additional sentence is not worth obfuscating the language of statutory provisions or failing to apply important constitutional safeguards.

I would reverse.

Chief Judge BELL and Judge RAKER have authorized me to state that they concur with the views expressed herein and join this dissenting opinion.

. The majority states (opinion at 609, n. 5) that the petitioner "makes no arguments under the Maryland Constitution or Declaration of Rights.” The single question presented in the petition for a writ of certiorari, and repeated verbatim in the petitioner's brief, was not limited to the First and Fourteenth Amendments to the United States *653 Constitution. Instead, the question presented was broadly worded as follows:

"Did the trial court err in denying Petitioner’s motion to dismiss and in convicting him of harassment under Md. Ann.Code, Art. 27, § 121A, now codified with minimal changes as § 123, specifically in the face of a challenge that the statute is unconstitutionally vague and overbroad on its face and as applied to Petitioner and in the face of a challenge that the facts did not support such a conviction?”

The question encompasses vagueness and overbreadth under the Maryland Declaration of Rights as well as under the First and Fourteenth Amendments. The majority seems to assert that the petitioner’s over-breadth and vagueness arguments in his brief and reply brief are based solely on federal constitutional grounds and not on state constitutional grounds. Except for a few references on two different pages to "First Amendment guarantees,” or "liberties” or "expression,” the petitioner's overbreadth and vagueness arguments in his briefs are general and equally applicable under the Fourteenth Amendment or the Maryland Declaration of Rights. Moreover, in cases decided by the Court of Special Appeals, or by a circuit court in the exercise of its appellate jurisdiction, the issues before this Court are determined by the certiorari petition, any cross-petition, and any order of this Court limiting or expanding the issues. Maryland Rule 8-131(b). See, e.g., Wynn v. State, 351 Md. 307, 319-324 , 718 A.2d 588, 594-597 (1998); Professional Nurses v. Dimensions, 346 Md. 132, 138-139 , 695 A.2d 158, 161 (1997); Am. Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 568-569 , 659 A.2d 1295, 1299 (1995); Maryland State Police v. Zeigler, 330 Md. 540, 562-563 , 625 A.2d 914, 925 (1993), and cases there cited.

Articles 24, 36, and 40 of the Declaration of Rights provide as follows:

“Article 24. Due process.

"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

“Article 36. Religious freedom.

"That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought fay any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights....”

"Article 40. Freedom of press and speech.

"That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.”

. It may well be that a clearly drafted and narrowly tailored statute, prohibiting the repeated sending of unwanted communications to a person, where the sender had previously been convicted of a violent crime against the recipient or had been the subject of a domestic violence protective order involving the recipient, or had threatened the victim’s life, would be constitutional. As pointed out above, however, § 123 is not such a statute.

. Furthermore, the overbreadth doctrine would not be applicable in the Rowan situation because "the overbreadth doctrine does not apply to commercial speech.” Village of Hoffman Estates v. Flipside, 455 U.S. 489, 497 , 102 S.Ct. 1186, 1192 , 71 L.Ed.2d 362, 370 (1982).

. The entire transcript relating to the trial court's rendition of the verdict is as follows:

*661 "THE COURT: I think the underlying question here is whether a defendant who is incarcerated can commit the crime of harassment as it relates to someone who is not incarcerated.

"The statute that the Court has for consideration is Article 27, Section 121A. It provides in pertinent part that a person who maliciously engages in a course of conduct that either alarms or seriously annoys another person, with the intent to harm, annoy or to alarm, after reasonable warning to stop it, has committed the crime of harassment.

“The facts of this case are that the defendant sent over 130 letters over a period of 11 months. In reading the letters, and taking into consideration the relationship between these two people, this Court is satisfied that the intent of the defendant’s letters was clearly to annoy or to harass. I am satisfied to that beyond a reasonable doubt.

“Accordingly, I am satisfied that the elements of the statute have been satisfied. I am satisfied further that they have been met or proven beyond a reasonable doubt and the Court enters a verdict of guilty to the crime of harassment.

“Even though Judge Thieme may have made some comment about he couldn’t stop the defendant from writing, I can’t stop him from writing. I will tell you that. I cannot stop him from writing. Even if I cut your hands off, you would probably find some way to write.

"But what I am telling you is that when you do this in the manner in which you did it, where there is clear inference to be drawn from it and intent to annoy or to harass, it is harassment. If you keep doing it, you are going to probably keep getting charged and keep getting convicted. You will end up serving a life sentence 90 days at a time. Anything else?’’

The majority quotes (opinion at 609-610) a paragraph from the trial judge stating certain "conclufsions]” based on the evidence, including a statement that the letters were “personal” and that, therefore, “the Court can find that they served no legal purpose.” (Emphasis added). This paragraph was from the trial judge’s written opinion of October 28, 1998, denying the defendant’s motion to dismiss and motion for judgment of acquittal. The trial judge rendered his verdict at a proceeding on November 4, 1998, after hearing arguments on "guilt or innocence as to the harassment charge.” Thereafter on November 4th, the trial court went on to conduct a sentencing hearing.

. The Supreme Court’s Bachellar decision invalidated, on First Amendment grounds, a criminal conviction under a former § 123 of Art. 27 of the Maryland Code.

. Quoting from People v. Shack, 86 N.Y.2d 529, 535 , 634 N.Y.S.2d 660 , 658 N.E.2d 706, 710 (1995).

. Opinion at 650.

. Cf. Monhollen v. Commonwealth of Kentucky, 947 S.W.2d 61 (Ky.App.1997) (upholding a stalking statute where, under the statutory language, there had been a prior protective order or criminal conviction involving the same victim). The majority opinion in the present case relies on Monhollen (opinion at 629-631), although the statute involved in Monhollen was obviously more restrictive, clear, and specific than Maryland’s Art. 27, § 123.

. In a much more limited statute than Art. 27, § 123, the insertion of a "reasonable person” standard might help to cure some of the vagueness. This was the situation in the Indiana case relied on by the majority (opinion at 628, n. 25), where the statute was restricted to harassing telephone calls. Kinney v. Indiana, 404 N.E.2d 49 (1980). Furthermore, the Kinney case involved only a challenge under the Indiana constitution. This was also the situation in the California case *677 relied on by the majority (opinion at 628) where the stalking statute there involved was more limited than § 123, as it required inter alia, a "credible threat ... with the intent to place that person in reasonable fear of death or great bodily injury." The People v. Ewing, 76 Cal.App.4th 199, 210 , 90 Cal.Rptr.2d 177, 184 (1999). In addition, the conviction in Ewing was reversed for insufficient evidence.

. The majority (opinion at 631-632) relies on two cases for the assertion that a requirement of repeated conduct mitigates against *679 vagueness, namely United States v. Smith, 685 A.2d 380 (D.C.1996), cert. denied, 522 U.S. 856 , 118 S.Ct. 152 , 139 L.Ed.2d 98 (1997), and Johnson v. Indiana, 648 N.E.2d 666 (Ind.App.1995). Both of these cases involved stalking statutes which were much more restrictive than Maryland's broad harassment prohibition in Art. 27, § 123. In fact, the Maryland prohibition against stalking is in an entirely different statute, Code (1957, 1996 Repl.Vol., 2000 Supp.). Art. 27, § 124.

. The majority opinion in the case at bar also suggests (opinion at 622, n. 16) that the holdings of Coates v. Cincinnati were "put in doubt” by *680 the opinion in Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972). An examination of the subsequent Supreme Court cases reveals utterly no basis for the majority’s suggestion. Colten v. Kentucky involved a disorderly conduct statute which was entirely different from either the statute involved in Coates or the Maryland statute involved in the present case. The statute involved in Colten specifically prohibited the refusal "to comply with a lawful order of the police to disperse,” and the defendant there did refuse to comply with such lawful crder of the police. The statute in Colten was so different from the statute in Coates that the Supreme Court’s Colten opinion does not even cite Coates. Nevertheless, the Supreme Court has cited Coates with approval and relied on Coates in numerous cases decided after Colten. See, e.g., Texas v. Johnson, 491 U.S. 397, 409 , 109 S.Ct. 2533, 2542 , 105 L.Ed.2d 342, 356 (1989); City of Houston v. Hill, 482 U.S. 451 , 465 n. 15, 107 S.Ct. 2502 , 2511-2512 n. 15, 96 L.Ed.2d 398 , 414 n. 15 (1987); Village of Hoffman Estates v. Flipside, supra, 455 U.S. at 495 n. 7, 102 S.Ct. at 1191 n. 7, 71 L.Ed.2d at 369 n. 7; Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 622 , 96 S.Ct. 1755, 1761 , 48 L.Ed.2d 243, 254 (1976); Erznoznik v. City of Jacksonville, 422 U.S. 205, 216-217 , 95 S.Ct. 2268, 2276 , 45 L.Ed.2d 125, 135 (1975); O'Connor v. Donaldson, 422 U.S. 563, 575-576 , 95 S.Ct. 2486, 2494 , 45 L.Ed.2d 396, 407 (1975); Bigelow v. Virginia, 421 U.S. 809, 816 , 95 S.Ct. 2222, 2229 , 44 L.Ed.2d 600, 608 (1975); Smith v. Goguen, 415 U.S. 566, 578 , 94 S.Ct. 1242, 1249 , 39 L.Ed.2d 605, 615 (1974); Grayned v. City of Rockford, 408 U.S. 104 , 108 n. 4, 110 n. 11, 113, 92 S.Ct. 2294 , 2299 n. 4, 2300 n. 11, 2301, 33 L.Ed.2d 222 , 227 n. 4, 228 n. 11, 230 (1972).

. The majority opinion correctly points out (opinion at 624-625) that the United States Court of Appeals in Kramer , with regard to vagueness, relied upon the failure of the Texas Courts to interpret the statute as incorporating a "reasonable person standard.” What the majority opinion overlooks or blurs, is that the court in Kramer found two “infirmities” in the Texas statute which could have been cured by state court interpretations but were not. The first was that the "Texas Courts have made no attempt to construe the terms 'annoy’ and 'alarm' in a manner which lessens their inherent vagueness.” 712 F.2d at 178 . The second was that "the Texas courts have refused to construe the statute to indicate whose sensibilities must be offended.” Ibid. While the Kramer court may have emphasized the second infirmity, the opinion clearly indicates that either would require the invalidation of the statute on vagueness grounds. In the context of the Maryland statute, for the reasons previously set forth, I do not believe that the insertion of a "reasonable person” standard cures either the vagueness or the overbreadth. In this connection, it should be noted that the Kramer opinion was limited to the ground of vagueness; it did not discuss overbreadth.

. At times the majority opinion in the case at bar makes flat statements about what is and what is not covered by Art. 27, § 123, without setting forth any satisfactory basis for the statements. For example, as to whether the prohibition of "a course of conduct that alarms or seriously annoys another person” covers "[tele]phone calls from creditors,” the majority states that the statute "was in no way intended to cover such situations,” and cites its discussion of the legislative history. (Opinion at 635-637). Nothing in the legislative history set forth in the majority opinion (id. at 612-613) lends the slightest support to the majority’s assertion. While the report of the Senate Judicial Proceedings Committee, quoted by the majority, refers to "disputes between neighbors, [and] former boyfriends and girlfriends,” the report goes on to refer to harassment generally. What might be covered beyond neighbor disputes and boyfriend-girlfriend disputes is not disclosed by either the legislative history or the statutory language. The history and *685 statutory language set forth in subsection (c) and (c)(1) are certainly broad enough to cover unwanted repeated telephone calls from creditors and tele-marketers, particularly at dinner time.