Opposition — McVicker v. Texas

doe Ss ake eel ee

-

NO. 80-1164

IN THE

ue COURT OF THE UNITED STATES

OCTOBER TERM, 1980

PARKER McVICKER,

Petitioner

V.

THE STATE OF TEXAS,

Respondent

On Petition For Writ of Certiorari

To The Texas Court of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

CHARLES A. PALMER

Assistant Attorney General

P. O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Respondent

i

QUESTION PRESENTED

I. Whether Section 42.07(a)(1) of the Texas Penal

Code is unconstitutionally vague and overboard.

ii

TABLE OF CONTENTS

Page

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ES se Sr OO cae bv EN EMSs prance Glo oay bin bs gas 2

CONSTITUTIONAL PROVISIONS AND STATUTES ....... 2

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INDEX OF AUTHORITIES

Cases

Coates v. Cincinnati, 402 U.S. 611(1971)..............

Cohen v. California, 403 U.S.15(1971) ...............

Collection Consultants, Inc. v. State, 556 S.W.2d 787

(Tex.Crim.App. 1977), appeal dismissed, 436 U.S. 901,

rehearing denied, 438 U.S. 908 (1978) ...............

Cox v. Louisiana, 379 U.S.(1965) 636 .................

F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) ......

Grayned v. City of Rockford, 408 U.S. 104(1972) .......

Jordan v. DeGeorge, 341 U.S. 223 (1954) ..............

Karp v. Collins, 310 F.Supp. 627 (D.N.J. 1970), vacated

on other grounds sub. nom. Kugler v. Karp, 401 U.S.

930, on remand, 333 F.Supp. 15(1971) ..............

Kramer v. State, 605 S.W.2d 861 (Tex.Crim.App. 1979) ..

Lloyd Corporation, Ltd. v. Tanner, 407 U.S. 551 (1972) .. .

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)

People v. Smith, 392 N.Y.S.2d 968 (N.Y.S.Ct.), cert.

pe ae ae sy | re

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

aff'd, 596 F.2d 1205 (4th Cir. 1979) .................

Rose v. Locke, 423 U.S. 48 (1975) ....................

Roth v. United States, 354 U.S. 476(1957) ............

Rowan ». United States Post Office Department, 397

TR CUEEOER oan fa cova wee See ere ars 6

Smith v. Gcugen, 415 U.S 566 (1974) .................

United States v. Harriss, 397 U.S. 612(1954) ..........

“eee ewe 6

*%

7.

iv

Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied,

ey Gace IP ITOD oi oe we itn Ble Ne ee De RE a ek ae 7

Wainwright v. Stone, 414 U.S 21(1973) ..................... 3

Constitutional Provisions and Statutes

First Amendment, United States Constitution................ 2

Fourteenth Amendment, United States Constitution .......... 2

See EE, SOU Sc acy oe eee Sek Se wee 4

AR SE 1 ee ne ne ee 5

aE SGD FONE: BE IUOD | i aioe vas occ c eet pees étweases 5

Tex. Penal Code Ann. §42.07(a(1) ..................... passim

Tex. Rev. Civ. Stat. Ann. art. 5429b-2,§2.01 .................. 5

I ore acme oh 2

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1

NO. 80-1164

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

PARKER McVICKER,

Petitioner

V.

THE STATE OF TEXAS,

Respondent

On Petition For Writ of Certiorari

To The Texas Court of Criminal Appeals

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

NOW COMES the State of Texas, Respondent herein,

by and through its attorney, the Attorney General of

Texas, and in response to the petition for writ of cer-

tiorari submits this Brief in Opposition.

2

OPINION BELOW

Petitioner correctly states that there is no written opi-

nion of the Texas Court of Criminal Appeals.

JURISDICTION

Petitioner correctly seeks to invoke the jurisdiction of

this Court pursuant to 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

AND STATUTES

Petitioner’s attack on Section 42.07(a)(1) of the Texas

Penal Code is based on the First and Fourteenth Amend-

ments to the United States Constitution.

STATEMENT OF THE CASE

Respondent is in substantial agreement with Peti-

tioner’s statement of the case.

SUMMARY OF ARGUMENT

Section 42.07(a)(1) of the Texas Penal Code is not un-

constitutionally vague or overbroad. When the

statutory terms are considered in light of the scienter re-

quirement, persons of ordinary intelligence are given

fair notice of the conduct which is forbidden. The State

has a valid interest in proscribing obscene, threatening,

and harassing telephone calls, and no First Amendment

rights are implicated thereby. Even if engaging in such

vexatious conduct may be said to constitute protected

expression, the right to do so must yield to the privacy

rights of the recipients of intentionally annoying com-

munications.

7%

3

ARGUMENT

SECTION 42.07(a)(1) OF THE TEXAS PENAL CODE

IS NOT UNCONSTITUTIONALLY VAGUE OR

OVERBOARD.

A. Section 42.07(a)(i) gives persons of ordinary in-

telligence fair notice of the conduct which it forbids.

A statute is void for vagueness if it fails to give a per-

son of ordinary intelligence fair notice that his con-

templated conduct is forbidden by the statute, United

States v. Harriss, 397 U.S. 612, 617 (1954), or if it en-

courages arbitrary arrests and

convictions. Papachristou v. City of Jacksonville, 405

U.S. 156, 162 (1972). The constitutional prohibition

against vagueness does not, however, invalidate every

statute which a reviewing court believes could have been

drafted with greater precision. Rose v. Locke, 423 U.S.

48, 49 (1975). “Condemned to the use of words, we can

never expect mathematical precision frora our

language.” Grayned v. City of Rockford, 408 U.S. 104,

110 (1972). See Rose v. Locke, 423 U.S. at 50; Roth v.

United States, 354 U.S. 476, 491-92 (1957). Whether the

language conveys sufficiently definite warning must be

determined by measuring it against ‘‘common

understanding and practices,’’ Jordan v. De George, 341

U.S. 223, 231 (1954), and the question whether a state

statute is vague must be answered in light of prior state

court constructions of the statute. Wainwright v.

Stone, 414 U.S. 21, 22 (1973).

Appellant’s claims of vagueness relate to the statute’s

use of the words “‘coarse,”’ “‘offensive,”’ ‘‘annoy,”’ and

‘“‘alarm.’’ The Texas Court of Criminal Appeals has

held, in a decision which this Court declined to review,

that the words ‘“‘annoy”’ and ‘‘alarm”’ are not unconstitu-

tionally vague. Collection Consultants, Inc. v. State,

556 S.W.2d 787 (Tex.Crim. App. 1977), appeal dismissed,

4

436 U.S. 901, rehearing denied, 438 U.S. 908 (1978). In

Kramer v. State, 605 S.W.2d 861 (Tex.Crim.App. 1979),

the Court of Criminal Appeals addressed the identical

contention made by Petitioner in the instant cause. The

court held that the words ‘‘annoy”’ and ‘‘alarm”’ are not

impermissibly vague, citing Collections Consultants,

Inc.,’ and also held that the words “‘coarse’’ and ‘‘offen-

sive” pass constitutional muster, reasoning as follows:

Appellant argues that if we allow the statute to

stand then any recipient of a message may

decide what that recipient thinks is ‘‘coarse and

offensive”, and that the person of ordinary in-

telligence is therefore without a guide to the

conduct forbidden by Section 42.07. But the

gravamen of the violation of Section 42.07(a) as

charged in the information is the intent to an-

noy and alarm by means of a “‘coarse and offen-

sive’’ message. . . . There is no room in the

statute for a vindictive or overly sensitive reci-

pient to create an offense by his own belief in

the coarseness of offensiveness of a message.

605 S.W.2d at 866. Similarly, this Court, in rejecting a

vagueness attack on an anti-noise ordinance, found rele-

vant the scienter requirement contained therein. Grayn-

ed v. City of Rockford, 408 U.S. at 113-14. In Karp v.

Collins, 310 F.Supp. 627 (D.N.J. 1970), vacated on other

grounds sub nom. Kugler v. Karp, 401 U.S. 930, on re-

mand, 333 F.Supp. 15 (1971), a New Jersey statute

which proscribed the use of “loud and offensive’’

language in public (N.J. Stat.Ann. 2A: 170-29) was

upheld from constitutional attack because the word ‘‘of-

fensive” was construed to require an intentional distur-

bance of others. And in People v. Smith, 392 N.Y.S.2d

‘Petitioner's contention that the Court of Criminal Appeals

misconstrued its prior decisions in so holding does not present a

question worthy of this Court's consideration.

5

968 (N.Y.S.Ct.), cert. denied, 434 U.S. 920 (1977), a New

York statute which prohibited communicating by

telephone ‘‘with intent to harass, annoy, threaten or

alarm another person” and “‘in a manner likely to cause

annoyance or alarm’ (N.Y. Cons. Laws, Book 39

§240:30) was declared constitutional.

Unlike the ordinances held invalid in Cox v. Louisiana,

379 U.S. 536 (1965) and Coates v. Cincinnati, 402 U.S.

611 (1971), Section 42.07(a)(1) does not permit punish-

ment merely for the expression of an unpopular view,

nor does it contain a broad invitation to subjective en-

forcement. Absent an intent on the part of the caller to

annoy or alarm the recipient, a ‘‘coarse and offensive”

telephone call does not constitute an offense under the

statute. When the statutory terms are ‘‘read in context

and construed according to the rules of grammar

usage,”’ Tex. Rev. Civ. Stat. Ann. art. 5429b-2 §2.01;

Tex. Penal Code Ann. §1.05(b), they do not fail to give a

person of ordinary intelligence fair notice that his con-

templated conduct is forbidden thereby.’

B. Section 47.02(a)(1) is applicable only to vexatious

conduct which is violative of the privacy rights of

others, and the statute does not infringe upon any con-

stitutionally protected expression.

Petitioner concedes, as he must, that the State has a

legitimate interest in prohibiting obscene, threatening,

and harassing telephone calls, none of which is generally

thought of as protected by the First Amendment. Even

when the right to communicate is involved, it must be

*"There are areas of human conduct where, by the natue of the pro-

blems presented, legislatures simply cannot establish standards

with great precision.’’ Smith v. Gougen, 415 U.S. 566, 581 (1974).

°°.

6

balanced with ‘the right of every person ‘to be let

alone,’”’ Rowan v. United States Post Office Depart-

ment, 397 U.S. 728, 736 (1970); F.C.C. v. Pacifica Foun-

dation, 438 U.S. 726, 748-49 (1978), and the private pro-

perty rights of others. Lloyd Corporation, Ltd. v. Tan-

ner, 407 U.S. 551, 568 (1972). See also, Cohen v. Califor-

nia, 403 U.S. 15, 21-22 (1971).

Nothing in the Constitution compels us to

listen to or view any unwanted communication

whatever its merit. .. . The ancient concept

that ‘‘a man’s home is his castle’’ into which

‘not even the king may enter”’ has lost none of

its vitality, and none of the recognized excep-

tions includes any right to communicate offen-

sively with another.

Rowan v. United States Post Office Department, 397

U.S. at 737.

The problem of harassing phone calls is hardly

hypothetical. Congress has recently found it

necessary to prohibit debt collectors from

“‘plac{ing] telephone calls without meaningful

disclosure of the caller’s identity’; from

“engaging any person in telephone conversa-

tion repeatedly or continuously with intent to

annoy, abuse, or harass any person at the called

number’’; and from ‘‘us[ing] obscene or profane

language or language the natural consequence

of which is to abuse the hearer or reader.’’ Con-

sumer Credit Protection Act Amendments, 91

Stat. 877, 15 U.S.C. §1692d (1976 ed., Supp. II).

F.C.C. v. Pacifica Foundation, 438 U.S. at 749 n.27.

It is precisely the kind of privacy rights involved in

Rowan and Pacifica Foundation that Section 42.07(a)1)

~

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was designed to protect. Correctly recognizing that

language which is not obscene may be unduly offensive

to the listener, see Kramer v. State, 605 S.W.2d at 866,

the legislature also chose to proscribe ‘‘coarse and offen-

sive” commur ‘cation which is intentionally annoying or

alarming. The statute is by its terms inapplicable to

public utterances and therefore may not be said to exert

a “‘chilling effect” on constitutionally protected expres-

sion. Petitioner’s reliance on Walker v. Dillard, 523

F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906 (1975) and

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

aff'd, 596 F.2d 1205 (4th Cir. 1979) is misplaced. The

overly broad statutes which were struck down in those

decisions were not limited to deliberate intrusions upon

the privacy of others.

CONCLUSION

For the above reasons, Respondent respectfully prays

that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

MARK. WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

Vacteo G Alous-

CHARLES A. PALMER

Assistant Attorney General

P. O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Respondent