Motion to Dismiss or Affirm — Parkins v. Illinois

Supreme Court brief1980

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 79-5946

ROBERT and LINDA PARKINS, Appellants,

PEOPLE OF THE STATE OF ILLINOIS, Appellee.

ON APPEAL FROM THE ILLINOIS SUPREME COURT

MOTION TO DISMISS OR AFFIRM

William J. Scott

Attorney General

Donald B. MacKay

Melbourne Noel

Assistant Attorneys General

188 W. Randolph

Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Daniel D. Doyle

State's Attorney

Winnebago County

Rockford, Illinois 61105

(815) 987-3160

Phyllis J. Perko

Deputy Director

Barbara A. Preiner

Staff Attorney

State's Attorneys Appellate

Service Commission

35 Fountain Square Plaza

Elgin, Illinois 60120

(312) 697-0020

COUNSEL FOR APPELLEE

March 28, 1980

INDEX

Page

DR ee ae eS Se aw ee ae ee ee Re ee

The Sta tute Involved . . . . . . . . .* * . 7 . o . J a . . a

a ee ae ee Oe ee fs’ 6s ee ee wee eo 8

Question Presented . ... ++ +++ 22 © e © © © © © © 3

IS THE SUBSECTION OF THE ILLINOIS STATUTE DEFINING AND

PROHIBITING TELEPHONE HARASSMENT OVERBROAD IN PRO-

SCRIBING TELEPHONE CALLS MADE WITH THE INTENT TO ABUSE,

THREATEN OR HARASS?

The Question is not Substantial. . . ... +2. 2+ 6 © 2 ee + 3

NE ret EGS EEE Dyes tee 2 Re A a ee ee a ae |

CITATIONS

CASES

People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 869 (1977), cert. den.

434 U.S. 920 (1977)

Collection Consultants, Inc. v. State, 556 SW.2d 787 (Tex.Ct.Crim.App.

1977), appeal dismissed 436 U.S. 901 (1978)

Walker v. Dillard, 363 F.Supp. 921 (W.D.Va. 1973), 523 F.2d 3 (4th Cir.

1975), cert. den. 423 U.S. 906 (1975)

Constantino v. State, 243 Fa. 595, 255 SE.2d 710 (1979), cert. den.

__ U.S. __, 100 S.Ct. 293 (1979)

Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)

People v. Parkins, 77 I11.2d 253, 396 N.E.24 22, 32 111.Dec. 909 (1979)

People v. Klick, 66 I11.2d 269, 362 N.E.2d 329, 5 I11.Dec. 329 (1977)

Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975), cert. den. 423 U.S. 906

(1975)

Radford v. Webb, 446 F.Supp. 608 (W.D.N.C. 1978)

State v. Anonymous, 34 Conn.Sup. 689, 389 A.2d 1270 (Sup.Ct. of Conn.,

App. Sess. 1978)

von Lusch v. State, 39 Md.App. 517, 387 A.2d 306 (Ct. of Sp.App. of

Md. 1978)

STATUTES

I11.Rev.Stat.1977, Ch. 134, Sec. 16.4-1(2)

La.Rev.Stat.Ann. (1974) Sec. 14:285

I11.Rev.Stat.1977, Ch. 38, Sec. 15-1

I1l.Rev.Stat.1973, Ch. 38, Sec. 26-1(a) (2)

Va. Code, (1950) Sec. 18.1-238

N.C. Gen. Stat., (1969) Sec. 14-196

Conn.Gen.Stat.Ann., (1972) Sec. 53a-183

Mdad.Crim.Law Code Ann., (1957) Art. 27, Sec.

555A

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 79-5946

ROBERT and LINDA PARKINS, Appellants,

Vv.

PEOPLE OF THE STATE OF ILLINOIS, Appellee.

MOTION TO DISMISS OR AFFIRM

INTRODUCTION

The People of the State of Illinois, Appellee, move this

Honorable Court to dismiss the appeal herein, or, in the alterna-

tive, to affirm the judgment of the Supreme Court of the State of

Illinois, on the ground that it is manifest that the question pre-

sented by this appeal is so unsubstantial as not to require further

argument.

THE STATUTE INVOLVED

This appeal raises the question of the constitutionality of

a subsection of the Illinois Statute prohibiting telephone harass-

ment (I11.Rev.Stat.1977, Ch. 134, Sec. 16.4-1(2)). That statute is

as follows:

Harassment by telephone is use of telephone

communication for any of the following pur-

poses:

(1) Making any comment, request, suggestion

or proposal which is obscene, lewd, lascivious,

filthy or indecent with an intent to offend;

(2) Making a telephone call, whether or not

conversation ensues, with intent to abuse,

threaten or harass any person at the calied

number; or

(3) Making or causing the telephone of another

repeatedly to ring, with intent to harass any

person at the called number; or

(4) Making repeated telephone calls, during

which conversation ensues, solely to harass

any person at the called number; or

(5) Knowingly permitting any telephone under

one's control to be used for any of the pur-

poses mentioned herein.

Every telephone directory published for distri-

bution to members of the general public shall

contain a notice setting forth a summary of the

provisions of this Section. Such notice shall

be printed in type which is no smaller than any

other type on the same page and shall be pre-

ceded by the word "WARNING". All telephone com-

panies in this State shall cooperate with law

enforcement agencies in using their facilities

and personnel to detect and prevent violations

of this Act.

THE NATURE OF THE CASE

The Appellants, Robert and Linda Parkins were charged in a

criminal complaint filed on August 21, 1978, with the offense of

harassment by telephone in that they made a telephone call"...

with t intent to abuse, threaten or harass Richard E. Bonavia

and membe of his family at the called number." (Robert Parkins,

c® 2, tint Parkins, C 3). The Appellants filed a motion to dis-

miss the complaint charging that the statute under which the charge

was brought was facially overbroad and vague, and therefore uncon-

stitutional (Robert Parkins C 7, Linda Parkins, C 8).

The Appellant's motion to dismiss was granted by the Honorable

Bradner C. Riggs, an associate judge of the Seventeenth Judicial

Circuit, Winnebago County, in an opinion filed October 4, 1978.**

Judge Riggs found the subsection of the statute under which the

Appellants had been charged to be overbroad.

*"C" refers to the common law record on appeal

**This opinion is attached to the Jurisdictional Statement as

Appendix B

The State took a direct appeal from this finding to the Illinois

Supreme Court. In an opinion issued October 19, 1979, the Illinois

Supreme Court found the statute constitutional.* That Court found

that the statute was not overbroad because the words "abuse" and

"harass" acquire a more restricted meaning because they were used

in conjunction with the word "threaten".

The Appellants appeal directly to this Honorable Court under

28 U.S.C. 1257(2), as a case in which the highest court of the state

has upheld the constitutionality of a state statute in the face of

a challenge to the statute's constitutionality.

QUESTION PRESENTED

Is the subsection of the Illinois Statute defining and pro-

hibiting telephone harassment overbroad in proscribing telephone

calls made with the intent to abuse, threaten and harass?

THE QUESTION IS NOT SUBSTANTIAL

The Appellants argue that the wide spread practice of penalizing

persons who make harassing telephone calls infringes upon the First

Amendment, and presents a substantial question for review. The

Appellants note that this question has not been addressed by this

Honorable Court.

This Court has had the opportunity to address the issue of the

constitutionality of telephone harassment statutes and has in the

past declined to do so.! The People maintain that the instant case

does not present a substantial federal question for this Court's

*This opinion is attached to the Jurisdictional Statement as Appendix

lpeople v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968 (1977), cert. den.

434 U.S. 920 (1977) -

Collection Consultants, Inc. v. State, 556 SW.2d 787 (Tex.Ct.Crim.App.

1977), appeal dismissed, 436 U.S. 901 (1978)

Walker 7. Dillard, 363 F.Supp. 921 (W.D.Va. 1973), 523 F.2d 3 (4th Cir.

1975), cert. den. 423 U.S. 906 (1975)

Constantino v. State, 243 Ga. 595, 255 SE.2a 710 (1979), cert. den.

~__ U.S. __, 100 S.Ct. 293 (1979)

consideration, and urge this Honorable Court to dismiss this appeal.

Alternatively, the People submit that the decision of the Illinois

Supreme Court was manifestly correct, and urge this Court to affirm

that decision.

It is the Appellants' contention that the Illinois telephone

‘

harassment statute (I11.Rev.Stat.1977, Ch. 134, Sec. 16.4-1(2)) is

overbroad. The Appellants urge that the language of this subsection

which prohibits telephone calls made with the intent to abuse, threaten,

and harass lacks objective standards with which to evaluate conduct,

and thus includes within its sweep speech related conduct which is

protected by the First Amendment. The Appellants acknowledge that

the State does have the authority to prohibit certain types of

speech related conduct, but contend that the legislative goal of

proscribing the illegitimate use of the telephone could be and should

be "more narrowly achieved," Shelton v. Tucker, 364 U.S. 479, 81

S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). )

The People maintain that the Illinois Supreme Court was correct

in finding that the words abuse, threaten and harass were not over-

broad.* While the Appellant's contend that the statute is so broad

as to encompass protected communication, the People assert that that

is clearly not the case.

First, it is clear that it is the intent of the caller which

must be to abuse, threaten, or harass, and not the perception of the

person receiving the call which is the determining factor in deciding

whether a telephone call falls within the prohibition of the statute.

The People submit that a telephone call made for the legitimate pur-

pose of communicating with a person at the called number would of

necessity be lacking the specified intent to abuse, threaten or

harass.

Secondly, the Illinois Supreme Court has clearly demonstrated

its willingness to impose a limiting construction upon the terms of

2See People v. Parkins, 77 I11.2d 253, 396 N.E.2d 22, 24, 32 111.Dec.

909 (1979), attached to the Jurisdictional Statement as Appendix A.

the statute.3? As the court noted, the application of the principle

of noscitur a sociis allows the words "abuse" and "harass" to take

on a more restricted meaning due to their association with the word

"threaten." The Supreme Court of Louisiana, applied the same principle

in upholding the constitutionality of that state's telephone harass-

ment statute. 4

were subject to more restricted meanings by virtue of their associa-

tion with the words "abuse", "torment" and "offend," State v. Meunier,

La. _, 354 So.2d 535, 537-538 (S.Ct. La. 1978). As that court

also observed, "It would be impractical to set forth in detail the

numerous forms harassment could take." State v. Meunier, supra,

354 So.2d at 538.

The People also submit that not only would the words "abuse"

and "harass" take on a more restricted meaning from their association

with the word "threaten", but also the word "threaten" must itself

take on a restricted meaning from its use in a statute which involves

the imposition of criminal penalties. The Illinois Criminal Code

provides a very specific definition of the word "threat"? and the

3see People v. Parkins, supra, 396 N.E.2d at 23-24, attached to the

Jurisdictional Statement as Appendix A. ;

La.Rev.Stat.Ann. (1974) Sec. 14:285

5T11.Rev.Stat.1977, Ch. 38, Sec. 15-5

Threat. As used in this Part C "threat"

means a menace, however communicated, to:

(a) Inflict physical harm on the person

threatened or any other person or on prop-

erty; or

‘ (b) Subject any person to physical con-

finement or restraint; or

(d) Accuse any person of a criminal offense;

(e) Expose any person to hatred, contempt

or ridicule; or

(£)} Harm the credit or business repute of

any person; or

(g) Reveal any information sought to be

concealed by the person threatened; or

(h) Take action as an official against any-

one or anything, or withhold official action,

or cause such action or withholding; or

(i) Bring about or continue a strike, boy-

cott or other similar collection action if

the property is not demanded or received

for the benefit of the group which he pur-

ports to represent; or

(j) Testify or provide information or with-

hold testimony or information with respect

to another's legal claim or defense; or

(k) Inflict any other har. which would not

benefit the offender.

It found that the words "annoy", "harass" and "embarass"

People submit that this definition although presented in a different

context, would be instructive to the .llinois courts in determining

the scope of the word "threaten" in the telephone harassment statute.

Thus, the People conclude that it is not true, as the Appellants

contend that the statute in question would encompass within its pro-

hibitions the telephone call "made with the‘intent to 'threaten' to

cancel a subscription for service."© such a "threat" is clearly not

one contemplated by a statute which imposes criminal penalties.

The willingness of the Illinois Supreme Court to impose a

limiting construction upon the Illinois telephone harassment statute

would save that statute from any problem of unconstitutional over-

breadth. The court in Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975),

cert. den. 423 U.S. 906 (1975) struck down a section of the Virginia

telephone harassment statute’ as overbroad, finding that the state

courts had not placed a limiting construction upon the statute, and

noting that the federal court was without power to do so.” Similarly,

in Radford v. Webb, 446 F.Supp. 608 (W.D.N.C.,1978), the court inval-

idated a section of the North Carolina telephone harassment statute

stating, "A statute whose terms are thus susceptible of constitutional

as well as unconstitutional application can only survive if it has

been authoritatively construed to exclude speech which, though vulgar

or offensive, is protected by the First and Fourteenth Amendments."

(446 F.Supp. at 611).

Prior to the instant statute, Illinois proscribed the making of

telephone calls made with the intent to annoy through a subsection of

the Criminal Code dealing with disorderly conduct. The Illinois

Supreme Court in People v. Klick, 66 I11.2d 269, 362 N.E.2d 329, 5

I1l.Dec. 329 (1977) found that subsection of the statute to be uncon-

6Jurisdictional Statement at page 8

Tyva. Code, (1950) Sec. 18.1-239

8n.Cc. Gen. Stat. (1969) Sec. 14-196

The pertinent part of that statute (I11.Rev.Stat.1973, Ch. 38, Sec.

26-1(a)(2)) stated: "A person commits disorderly conduct when he

knowingly: (2) With intent to annoy another, makes a telephone call,

whether or not conversation thereby ensues ... ."

stitutionally overbroad. The current statute demonstrates a diligent

attempt by the legislature of the State of Illinois properly to

limit the application of the criminal penalties for telephone harass-

ment.

It is clear that both the legislature and the Supreme Court of

the State of Illinois are aware of their responsibility to narrow the

application of the telephone harassment statute so as not to inter-_

fere with the First Amendment. Their respective efforts to make the

language of the statute and its application as narrow as is reasonable

under the circumstances are factors to be considered in arriving at

the conclusion that the present telephone harassment statute is not

overbroad.

The People submit that the Illinois Supreme Court's opinion in

the instant case has demonstrated the court's recognition of its duty

to place a limiting construction on the Illinois telephone harassment

statute. The People maintain that the limiting construction placed on

the terms of the statute by the court removes any potential problem

of overbreadth.

The Appellants also assert that the Illinois Supreme Court struck

an improper balance of interests in finding that the right or privacy

of the recipient of an intentionally abusive threatening or harassing

telephone call outweighs the caller's freedom of speech. It is the

People's position that the recipient's right to privacy must outweigh

the caller's right to intrude upon that privacy with an intentionally

abusive telephone call.

Communication by telephone is fundamentally different from

other forms of communication. It cannot be compared to the person

speaking on a street corner whose voice reaches all passers-by,

whether they be willing or unwilling listeners. In that situation,

the unwilling listener is free to pass the speaker by, incurring no

imposition. It cannot be compared to communication by mail, for

in that situation the unwilling recipient of the piece of mail may

summarily discard it ree minimal imposition. It cannot be compared

to communication by means of the public media, for an unwilling

‘

listener is always free to turn off his radio or television or refrain

from buying and/or reading any material he finds unacceptable. The

recipient of a telephone call, however, is not able to avoid the

inevitable imposition upon his privacy which results from an unwanted

telephone call. To be sure the telephone provides a valuable tool

for legitimate communication, but when it is used for an illegitimate

purpose, its intrusion on the recipient's privacy becomes intolerable.

The fact that each consumer of telephone service has an identi-

fying number which is readily accessible allows him to be singled

out for harassment in a manner that is not similar to any other form

of communication. Even if the recipient of a telephone call chooses

not to answer, the incessant ringing of the telephone (which is often

itself the means of harassment) becomes unbearable. Thus, the People

contend that it is clear that the State has a legitimate_interest in

guarding the privacy of its citizens from calls made with the intent

to abuse, threaten and harass.

The People maintain that the State has a legitimate and justifable

interest in regulating and proscribing the instrusion into a person's

privacy which the abusive, threatening and harassing telephone call

presents. As the Appellants note, virtually every state in the union,

with few exceptions, has as part of its law a statute regulating the

abusive and harassing use of the telephone. /° This would indicate

that it has been uniformly recognized that use of the telephone for

purposes of abusing a person at the called number is not a legitimate

and protected form of communication.

The Superior Court of the State of Connecticut stated in upholding

the constitutionality of its telephone harassment statute:

As venerated a place as freedom of speech may hold

in the constitutional scheme, reasonable regulation

of the place and manner of its exercise has been

upheld consistently. Breard v. Alexandria, 341 U.S.

622, 642, 71 S.Ct. 920, 95 L.Ed. 1233; Cox v. New

Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85

L.Ed. 1049. Where the means of communication in-

volves an intrusion upon privacy, the right of free

expression must be balanced against the right to be

10see Jurisdictional Statement, Appendix D

—_,

11conn.Gen.Stat.Ann., (1972) Sec. 53A-183

let alone. Rowan v. Post Office Department, 397

U.S. 728, 736, 90 S.Ct. 1484, 25 L.Ed.2d 736. A

telephone is not a public forum where, in vindica-

tion of our liberties, unreceptive listeners need

be exposed to the onslaught of repugnant ideas.

See Lehman v. Shaker Heights, 418 U.S. 298, 302-303,

94 S.Ct. 2714, 41 L.Ed.2d 770. The overbreadth

principle is not violated by the unrestricted scope

of the messages which the statute may ban because

it is the manner and means employed to communicate

them which is the subject of the prohibition rather

their content. The statute is not flawed because

a recital on the telephone of the most sublime

prayer with the intention and effect of harassing

the listener would fall within its ban as readily

as the most scurrilous epithet. The prohibition is

against purposeful harassment by means of a device

readily susceptible to abuse as a constant tres-

passer upon our privacy. That words may be the

instrument of annoyance does not insulate such

wrongful conduct from criminal liability.

State v. Anonymous, 34 Conn.Sup. 689, 389 A.2d 1270,

1273-1274 (Sup.Ct. of Conn., App. Sess., 1978)

The same analysis was employed by the Court of Special Appeals

of Maryland in upholding the constitutionality of its telephone

harassment statute. 2 The court stated:

The appellant makes the additional argument that

Caldwell v. State [26 Md.App. 94, 337 A.2d 476

(1975)] to the contrary notwithstanding, Section

555A is unconstitutional because of the chilling

effect it may have upon the First Amendment. The

argument misperceives the values protected by that

amendment. The right to express ideas does not

include the right to impose the communication of

those ideas upon an unwilling listener. Cantwell

v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84

L.Ed. 1213 (1940). The Maryland statute does not

prohibit speech or communication as such. It

simply protects one from the harassment and an-

noyance from having his own telephone used in an

abusive fashion by an unwanted intruder upon his

privacy. Citizens have a right to speak. Citi-

zens also have a right not to be forced to listen.

Freedom of speech does not encompass the right to

abuse the telephone with the specific intent to

annoy and to harass the recipient of the call.

Caldwell v. State, supra.

von Lusch v. State, 39 Md.App. 517, 387 A.2d 306,

310 (Ct. of Sp.App. of Md. 1978)

Thus the People conclude that in the context of harassing tele-

phone communication, the recipient's right to privacy outweighs the

caller's right to harass. Therefore, the Illinois Supreme Court in

l2ma.Ccrim.Law Code Ann., (1957) Art. 27, Sec. 555A

finding the Illinois telephone harassment statute constitutional

did not improperly balance the relative rights of the caller and the

recipient.

In conclusion, as has been noted, statutes proscribing telephone

harassment exist in some form in practically every state, making it

a minor criminal offense purposefully to abuse another person by

means of a telephone. As has been argued, the potential unconstitu-

tional overbreadth of such statutes is removed by a limiting construc-

tion placed on the terms of the statute by the State courts. It is

the People's position that decision of the Illinois Supreme Court is

manifestly correct, and that the court's further restriction of the

terms of the statute removes any potentially overbroad interpretation.

The resulting balance which may have been struck in favor of the call

recipient's right to privacy was a proper one.

CONCLUSION

WHEREFORE, the People respectfully submit that the question

presented by the Appellant is so unsubstantial as not to require

further argument, and the People respectfully move this Honorable

Court to dismiss this appeal, or, in the alternative, affirm the

judgment entered in this case by the Supreme Court of the State of

Illinois.

Respectfully submitted,