Petition — Mary Gormley v. Director, Connecticut State Department of Adult Probation

Supreme Court brief1980

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

NO.

MARY GORMLEY,

Petitioner,

Vv.

DIRECTOR, CONNECTICUT STATE

DEPARTMENT OF ADULT PROBATION, and

THE ATTORNZY GENERAL OF THE

STATE OF CONNECTICUT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOSEPH RUBIN

GRAHAM, MURPHY & RUBIN

487 MAIN STREET, SUITE 2

HARTFORD, CONNECTICUT 06103

ATTORNEY FOR PETITIONER

JULY 23, 1980

None

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QUESTION PRESENTED

Whether Connecticut's telephcne harassment stattle, 53a Conn.

Gen. Stat. § 183(3), which proscribes, "with intent to harass,

annoy, or alarm, another person, ... mak[{ing] a telephone call ....

lin a manner likely to cause annoyance or alarm," as construed

without any First Amendment limitations by the Connecticut eoutea..

‘is unconstitutionally overbroad in violation of the First and

|Fourteenth Amendments to the United States Constitution?

| ee eS

/ Question

| table of

‘Table of

|Opinions

TABLE OF CONTENTS

Presented * 7 . 7 . * > . . . . . * >. 7 7. .

Contents Sw 8 @. fe @ (8 Lae. Be, eee ee el ee

Authorities J . . . .* . . 7 .* * * * + * . 7.

Below - 7 7 . . . . . . . . . . . ° . . . .

Wenieiiotion . «sss sss sh 6 eee

Constitutional Provisions and Statutes .......

| Statement OC the GOON 6's é «6: 0) 6 wt eles oe

‘Zz.

|APPENDIX

‘Document

‘Circuit.

Document

;For Writ

Document

Superior

‘Reasons for Granting the Writ .........4.e4..

The decision below is in substantial con-

flict with recent decisions of state courts

of inet pepemt . s -« s « ss * bee eee

The decision below is in conflict with this

Court's First Amendment Overbreadth doctrine

A, Opinion of the Court of Appeals for the Second

B, [Magistrate's] Recommended Ruling on Petition

of Habeas Corpus (District Court)

C, Ruling on Petitioner's Objection to Magistrate's

‘Recommended Ruling (District Court)

Court

‘Document D, Opinion of the Appellate Session, Connecticut

iii

TABLE OF AUTHORITIES

' Cases

| Brandenbur re St es 6 ok ew ee

395 U.S. 444 (1969)

t Broadrick Ve Oklahoma, + . . . + ” . - .

U.S. 60 9

| Coates SS SESE ea ee

“Foz U.S. 611 (1971)

,Goodin gg ie ene)

70s U.S+ S18 (1972)

‘Hess v. Indiana, eS ae SA as ead

| U.S. (1973)

Some Vv. City me ieee Origeme, .. ss 2 e

. .

| Peo OE TRS a ce ee ee

5 Tll.2d 269, 362 N.E.2da 329 (1977)

Pages

° 7

. > . . 7

. .* . ©e > 9

a lw. ce te, a oe an ee

a Til.2d 253, 396 N.E.2da 22 (1979); app. dism'd. for

Peo a ee Se eg ee a

| a5 Misc. od 759, 392 N.Y.S.2d 968 (1977);

| 434 U.S. 920 (1977)

‘Robinson v. NS eae ee ee a ee

U.S. 660 962

Gn Ws Tees Beate, . « « ec so se ve eee

Uselks

State v. Anon MR 6 CS ee eee

34 Conn. Supp. 689, 389 A.2d 1270 (1978)

State Vv. Dronso, . 7 . . 7 . . . . . .

| 90 Wis.2d 149, 279 N.W.2d 710 (1979)

oR PR

| 287 Or. 519, 601 P.2da 766 (1979)

SEF aa ae ae ae

174 Conn. 803, 382 A.2d 1332 (1978)

(Terminiello OS a ae ae ee ee

UsBe 94

Watts Wa en eee, gg gf kg kt lt et te

: 394 U.S. 705 (1969)

want of subst. fed'l quest., U.S. e af CE... h.

| Rptr. 4055 (April 21, 1980)

> 7 * . o * 6

cert. den.,

. . . 2 7 Pet 8

expe?

| UNIZED STATES CONSTITUTION

t Amendment One . 7 ° . 7 . . . . 7 . . . *.

| Aemimemt Pourtesn 1... 65 ee ew ew ee

| STATUTES.

iS$3a Conn. Gen. Stat $183... 1... ee

\Ill. Rev. Stat. 1973, ch. 38, par. 26-1 ..

im. Rev. Stat. 1977, ch. 38, par. 16.4-1 .

i, Selek tae O000.8

Ore. ee. Ss SOCEES: so «4 ss ele te

Wis. Stat. §947.01 . ee 7 . . . . . 7 . 7

‘Wis. ae Re gk a ke a we ke kk ee

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‘t

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

' Second Circuit, which has not yet been published in the Federal

| reporter, is published as Slip Op., p. 3109, of the Second

| circuit. From the district court, the [Magistrate's] Recommended

=_— on Petition for Writ of Habeas Corpus, and the Ruling on.

| Petitioner's Objection to Magistrate's Recommended Ruling have not

‘been published. The opinion of the Appellate Session of the

{' >

Connecticut Superior Court is reported sub. nom. State v.

Anonymous, 34 Conn. Supp. 689, 389 A. 2d 1270(1978); cert. den.

| sub. nom. State v. Gormley, 174 Conn. 803, 382 A. 2a 1332(1978).

All of these opinions are included in the Appendix.

JURISDICTION

! The judgment of the Second Circuit of which review is sought

was rendered and entered on May 27, 1980, and this Petition is

‘filed within sixty days of that date, pursuant'to Rule 20.1.

\This Court has jurisdiction to review that judgment by writ of

certiorari pursuant to 28 U.S.C. §1254(1).

Les vi

ee |

CONSTITUTIONAL PROVISIONS and STATUTES

|! First Amendment, United States Constitution:

Congress shall make no law respecting an establishment of

.religion, or prohibiting the free exercise thereof; or abridging

‘the freedom of speech, or of the press; or the right of the

| people peaceably to assemble, and to petition the Government for

\a redress of grievances.

| Fourteenth Amendment, Section One, United States Constitution:

| All persons born or naturalized in the United States, and

| subject to the jurisdiction thereof, are citizens of the United

| States and of the State wherein they reside. No state shall make

lor enforce any law which shall abridge the privileges or immuni-

‘ities of citizens of the United States; nor shall any State deprive

,any person of life, liberty, or property, without due process of |

| aw; nor deny to any person within its jurisdiction the equal

‘protection of the laws.

53a Conn. Gen. Stat. §183:

| (a) A person is guilty of harassment when:

| (1) By telephone, he addresses another in or uses

| indecent or obscene language; or

| (2) with intent to harass, annoy or alarm another person

| he communicates with a person by telegraph, mail, or

| any other form of written communication, in a

: manner likely to cause annoyance or alarm; or

(3) with intent to harass, annoy or alarm another

person, he makes a telephone call, whether or not

a conversation ensues, in a manner likely to cause

a oo

annoyance or alarm,

(b) For purposes of this section, such offense may be deemed

to have been committed either at the place where the

telephone call was made, or at the place where it was

received.

section to be examined by one or more psychiatrists.

(d) Harassment is a class C misdemeanor.

‘weeceennen Rev. Stat. 1973, ch. 38; par. 26-1":

(a) A person commits disorderly conduct when he knowingly:

(1) Does any act in such unreasonable manner as to

alarm or disturb another and to provoke a breach

|, of the peace; or

f (2) With intent to annoy another, makes a telephone

call, whether or not conversation thereby ensues;

| or

(3) Transmits in any manner to the fire department of

any city, town, village or fire protection district

a false alarm of fire, knowing at the time of such

| transmission that there is no reasonable ground for

believing that such fire exists; or

(4) Transmits in any manner to another a false alarm to

the effect that a bomb or other explosive of any

nature is concealed in such place that its explo-

sion would endanger human life, knowing at that ase:

of such transmission that there is no reasonable

* Subsection (a) (2) was deleted in 1977 by P.A..80-795,

which substituted Ill. Rev. Stat. 1977, ch. 38, par. 16.4-1 in

its place.

Illinois Rev. Stat. 1977, ch. 38, par. 16-4.1:

viii

ground for believing that such bomb or explosive |

is concealed in such place; or |

(5) Transmits in any manner to any peace officer, publi¢

officer or public employee a report to the effect

that an offense has been committed, knowing at the

time of such transmission that there is no reason-

able ground for believing that such an offense has

been committed; or

(6) Enters upon the property of another and for a lewd

or unlawful purpose deliberately looks into a

Cwelling on the property through any window or othey

opening in it; or

(7) While acting as a collection agency as defined in

the "Collection Agency Act" or as an employee of

such collection agency, and while attempting to

collect an alleged debt, makes a telephone call to

the alleged debtor which is designed to harass,

annoy or intimidate the alleged debtor.

(b) Sentence.

A violation of subsection 26-l(a) (1) or (a) (2) is a

Class C misdemeanor. A violation of subsection 26-l(a)-

(4) is a Class A misdemeanor. A violation of subsection

26-1(a) (5) or (a) (6) is a Class B misdemeanor. A vio-

lation of subsection 26-1(a) (3) is a Class 4 felony.

A violation of subsection 26-1(a)(7) is a Business

Offense and shall be punished by a fine not to exceed

$3,000.

Harassment by telephone is use of telephone communication for

“any of the following purposes:

(1) Making any comment, request, suggestion or proposal

which is obscene, lewd, lascivious, filthy or indecent

with an intent to offend; or

(2) Making a telephone call, whether or not conversation

ensues, with intent to abuse, threaten or harass any Ss

| person at the called number; or + °

! (3) Making or causing the telephone of another repeatedly to

| ring, with intent to harass any person at the called

1 number; or

(4) Making repeated telephone calls, during which ccnversa-

tion 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 purposes mentioned herein.

| Every telephone directory published for distribution to mem-

‘bers 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 preceded by the word "WARNING". All tele-

| Phone companies in this State shall cooperate with law enforcement ,

jagencies in using their facilities and personnel to detect and

prevent violations of the Act. <

‘New York Penal Law §240.30

! §240.30 Aggravated harassment

| A person is guilty of aggravated harassment when, with intent

|to harass, annoy, threaten or alarm another person, he:

(1) Communicates, or causes a communication to be initiated

by mechanical or electronic means or otherwise, with a

person, anonymously, or otherwise, by telephone, or by |

telegraph, mail or any other form of written communica-

tion, in a manner likely to cause annoyance or alarm; or

(2) Makes a telephone call, whether or not a conversation

ensues, with no purpose of legitimate communication.

| Aggravated harassment is a class A misdemeanor.

| Oregon Revised Statutes 166.065:

(1) A person commits the crime of harassment if, with intent

to harass, annoy or alarm another person, he:

(a) Subjects another to offensive physical contact; or

! (b) Publicly insults another by abusive or obscene

| words or gestures in a manner likely to provoke a

violent or disorderly response; or

wise, by telephone, mail or other form of written

| (c) Communicates with a person, anonymously or other-

\ communication, in a manner likely to cause annoy-

} ance or alarm; or

} (d) Engages in a course of conduct that alarms or ser-

| iously annoys another person and which serves no

! legitimate purpose.

i} (2) Harassment is a Class B misdemeanor.

Saw Statutes, §947.01"*

Whoever does any of the following may be fined not more than

$100 or“imprisoned not more than 30 days:

(1) In a public or private place, engages in violent, abu-

sive, indecent, profane, boisterous, unreasonably loud,

* Subsection (2) has been repealed and replaced by §947.012

Wis. Stats.

(2)

or otherwise disorderly conduct under circumstances in

which such conduct tends to cause or provoke a distur-

bance; or

With intent to annoy another, makes a telephone call,

whether or not conversation ensues.

STATEMENT of the CASE

This federal habeas corpus proceeding, pursuant to 28 U.S.C.

: §2254, sought review, on First Amendment grounds, of the state

| court conviction of the petitioner, Mrs. Mary Gormley, of

|| telephone harassment. Mrs. Gormley was convicted, after a trial

| by jury in the Connecticut Court of Common Pleas, of harassment

| in violation of 53a Conn. Gen. Stat. §183(3)?. She appealed her

tediosia on First Amendment grounds, to the Appellate Session

of the Connecticut Superior Court. Although that appeal was the

first place in which the First Amendment issue was raised, the

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| Appellate Session reached the First Amendment claim, rejected it

on the merits, and affirmed, State v. Anonymous (1978-4), 34

Conn. Supp. 689, 695-6, 389 A. 2d 1270, 1273-4(1978).2 ‘The

Connecticut Supreme Court denied certification without opinion,

State v. Gormley, 174 Conn. 803, 382 A. 2d 1332(1978). State

remedies were thereby exhausted.

The basis of the harassment charge was one telephone call

which Mrs. Gormley allegedly made to the complainant, while the

‘

complainant was i. work at a restaurant. The complainant testified

| that Mrs. Gormley said

that she had photographs to

prove that my mother was in bed with

her husband, that our family are a bunch

of nuts and we are all under psychiatric

care.

1 "[A) person is guilty of harassment when: .. (3) with

jintent to harass, annoy, or alarm another person, he makes a tele-

iphone call, whether or not a conversation ensues, in a manner

jlikely to cause annoyance or alarm."

i 2 In the same opinion, the Appellate Session reversed Mrs.

Gormley *s conviction for disorderly conduct on Pirst Amendment

‘grounds. That conviction had resulted from the same trial as the

‘instant case, although it involved a different, but related,

factual situation.

)

- oa

| Appendix in United States Court of Appeals for the Second Circuit

| (hereinafter "App. 2nd Cir."] p. 14. There was also testimony

that Mrs. Gormley, in the same call, had first stated this alle-

_— to another waitress who had answered the telephone, App.

| 2nd Cir. 15, and there was testimony about another encounter,

| earlier in the day, at which urs. Gormley had allegedly insulted

lthe complainant in. person, State v. Anonymous, supra, 34 Conn.

|\Supp. at 690-91, 389 A. 2nd at 127.

In his instructions, the trial judge explained the meaning

| of some of the operative words of the charging statute’as follows:

- « « (HJ]arass . . . mean[s]} to trouble,

worry, or torment another . . . [A] nnoyance

{means] to irritate, or to vex; to bother,

as by repeated actions . .. [To] alarm

(means] to make suddenly afraid of or

anxious; frightening.

‘App. 2nd Cir. 18. The trial judge specifically directed the jury

'to consider the content of Mrs. Gormley's alleged expression in

reaching its verdict, when he said,

}

So if you find in this case, that

| the defendant made a telephone call with

that intention in mind to harass, to annoy,

and in fact that the telephone call, in the

conversation, harassed and annoyed another

person, then under these circumstances you

would find the defendant guilty of that

offense.

‘App. 2nd Cir. 18 [emphasis added]. Later the judge seminded the

jury that "you heard her testimony as to the language that was

‘used in the course of that telephone call," App. 2nd Cir. 21

‘Cemphasis added]. There was no instruction at all concerning

‘First Amendment limitations on the punishment for or limitation of

,the content of speech or expression.

—~

After exhausting her state remedies, Mrs. Gormley filed a

habeas corpus petition pursuant to 28 U.S.C. § 2254 in the United

' States District Court for the District of Connecticut. The

‘petition directly raised the First Amendment issue which is here

presented to this Court, Record, United States Court of Appeals

i for the Second Circuit (hereinafter, "R."), Doc. No. l, p. 4. No.

| evidentiary hearing was requested or held in the District Court,

lane the record consisted primarily of portions of the transcript

‘of the state court trial. The district Court denied the petition

on the merits of the First Amendment claim, App., Docs.’ B and C.

tes. Gormley noted an appeal to the Second Circuit, and the dis-

‘estan judge issued a certificate of probable cause pursuant to

‘28 U.S.C. §2253. The Second Circuit, in a full opinion, App., Doc.

lA, affirmed the judgment of the District Court.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW IS IN SUBSTANTIAL CONFLICT WITH RECENT

DECISIONS OF STATE COURTS OF LAST RESORT.

Two state courts of last resort have recently invalidated

telephone harassment statutes which are -ssentially identical to

leach other, and very similar to the Connecticut statute in ques-

tion. In People v. Klick, 66 Ill. 2d 269, 362 N.E.2d 329(1977),

jthe Illinois Supreme Court struck down Ill. Rev. Stat. 1973, ch.

38, par. 26-1(a) (2), which then provided? that

| (a) A person commits disorderly conduct when he

knowingly:

(2) With intent to annoy another, makes a

| telephone call, whether or not conversation °

thereby ensues.

In State v. Dronso, 90 Wis. 2d 149, 279 N.W. 2d 710(1979), the

\Wisconsin Supreme Court overturned §947.01(2) Wis. Stats., which

then providea‘ that

Whoever does any of the following may be fined

- » » OF imprisoned... :

H (2) With intent to annoy another, makes a tele-:.

ji phone call, whether or not conversation ensues.

3 Apparently in response to the decision in Klick, supra,

ithe Illinois legislature, by P.A. 80-795, deleted the iasatel

‘section from the statute, replacing it with Ill. Rev. Stat. 1977,

ich. 38, par. 16.4-1. Illinois' new statute, which proscribes ° ™.

""[mjaking a telephone call, whether or not conversation ensues,

jwith intent to abuse, threaten or harass any person at the called

number," Ill. Rev. Stat 1977, ch. 134, par. 16.4-1(2), was

\upheld in People v. Parkins, 77 Ill. 2d 253, 396 N.E.2d 22(1979),

‘app. dism' or want of subst. fed'l quest., U.S. e a7 Ce

iL. Rptr. 4055 (April 21, 1980). The new statute, unlike Connecti-

‘cut's, has elimated the sweeping word’ "annoy", and the Illinois:

court, acting in a limiting way which the Connecticut courts re-

‘fused to do, explained that "The determination of the legislative

jjintent in requiring proof of the intent°"to abuse threaten or

harass" rather than, as in the earlier statute, would appear,

appropriately, to invoke the maxim noscitur a sociis. .. . Thus

ithe words 'abuse'’ and 'harass''take color from the word ‘threaten’:

ene acquire more restricted meanings," 396 N.E. 2d at 24.

4 Apparently in response to the Dronso decision, su ra, Sec-

‘tion 947.01(2) Wis. Stats. has been repealed and replaced by

'§947.012 Wis. Stats.

ene

Both the Illinois and Wisconsin courts held that their

_states' statutes were unconstitutionally overbroad under the First

Amendment as applied to the states by the Fourteenth Amendment.

Both courts focussed on the breadth of the word "annoy" in reaching

their decision. Of course the word "annoy" is also a central (and

53a Conn. Gen. Stat. §183. As the Klick court explained, in

nap operative word in the definition of harassment under

jterms equally applicable to the Connecticut statute,

Conceivably, this section could make criminal

\ a single telephone call made by a consumer who wishes

to express his dissatisfaction over the performance of

a product or service; a call by a businessman disturbed

with another's failure to perform a contractual obli-

gation; by an irate citizen, perturbed with the state

of public affairs, who desires to express his opinion

tu a public official; or by an individual bickering

over family matters. First Amendment protection is

not limited to amiable commications.

362 N.E. 2d at 331-32.

Although counsel is unaware of any judicial decision invali-

dating or upholding a telephone harassment statute identical to

iConnecticut's, other courts have overturned substantially similar

statutes on constitutional grounds. In State v. Blair, 287 Or.

(519, 601 P.2d 766(1979), the Oregon Supreme Court considered a

challenge to O.R.S. 166.065(1)(c), which provided that

A person commits the crime of harassment if,

with intent to harass, annoy, or alarm another

person, he: (c) Communicates with a person,

anonymously or otherwise, by telephone, mail or ‘

other form of written communication, in a manner ae 4

likely to cause annoyance or alarm...

This Oregon statute is substantia).ly identical to 53a Conn. Gen.

Stat. §183(3). After examining it carefully the Oregon Supreme

‘Court invalidated the statute on constitutional grounds, noting

jthat it could proscribe communication from “angry parents, disap-

| pointed customers, jealous lovers, or followers of opposing ath-

|letic teams,” 601 P.2d at 768.

i ae oc

By comparison, in People v. Smith, 89 Misc. 2d 789, 392 N.Y.S.

| 24 968(1977), cert. den., 434 U.S. 920(1977), a New York appellate

court upheld N.Y. Penal Law §240.30, which provides that

A person is guilty of aggravated harassment

when, with intent to harass, annoy, threaten or

alarm another person, he: . . 2.° Makes a tele- =

phone call, whether or not'a conversation ensues,

with no purpose of legitimate communication.

Section 240.30, because it exempts any calls made with any purpose

of legitimate communication, is much narrower than the Connecticut

|statute. Nonethless, the Smith court found that it could uphold

ithe statute, in the face of a’First Amendment challenge, only by

construing it as limited to obscenity, unequivocal and specific

threats, communications directed to an unwilling recipient under

circumstances wherein substantial privacy interests are being

invaded in an essentially intolerable manner, communications which

by their very utterance tend to incite an immediate breach of the

peace, and documents simulating court process, 392 N.Y¥.S. 2a at

971. It is just such a narrowing construction which the Connecti-

cut courts refused to provide in the instant case.

II. Tn DECISION BELOW IS IN CONFLICT WITH THIS COURT'S FIRST

AMENDMENT OVERBREADTH DOCTRINE.

Mrs. Gormley's conviction of harassment is invalid because

53a Conn. Gen. Stat. §183(3) as it was applied in her case and

as it is written is unconstitutionally overbroad. The statute is

susceptible of applications to speech protected by the Frist

Amendment to the United States Constitution, which is applicable

to the states through the Fourteenth Amendment.

punish the use of words or the content of expression must be pre-

jeieely and narrowly drawn and may bring within their scope only

~”

| This Court has consistently held that criminal statutes which

those narrowly limited and precisely defined classes of expression

| which are not protected by the First Amendment. Hess v. Indiana,

“414 U.S. 105(1973); Gooding v. Wilson, 405 U.S. 518, 522(1972).

i, One who challenges a criminal statute claiming it is overly broad

| under the First Amendment is not required to demonstrate that his

own alleged conduct is protected by the First Amendment. To have

a conviction under an overly broad statute declared invalid, he

need only show that the statute is capable of application to pro=

tected speech. The First Amendment policy of encouraging robust

| public debate has resulted in the overbreadth doctrine because of

"the transcendent value to all society of constitutionally pro-

tected expression" and the fear that without close attention to

criminal statutes proscribing expression,

Persons whose expression is constitutionally

protected may well refrain from exercising their

rights for fear of criminal sanctions provided by

a statute susceptible of application to protected

expression.

Lewis v. City of New Orleans, 415 U.S. 130, 133-34(1974) .>

The kinds of expression which this Court has held that govern-

iments may criminally proscribe as being outside the protection of

the First Amendment include obscenity, Roth v. United States, 354

U.S. 476 (1957), direct threats to immediate violence, Watts v.

U.S. 394 U.S. 705 (1969); incitement to conduct which creates a

clear and present danger of violence, Brandenburg v. Ohio, 395

U.S. 444 (1969); and "fighting words" or "words that have a direct

tendency to cause acts of violence by the person to whom, individ-

ually, the remark is addressed." Gooding v. Wilson, 405 U.S. 518,

523 (1972).

5 This Court in Broadrick v. Oklahoma,413 U.S. 601 (1973),

indicated, in a §1983 case regarding state restrictions on poli-

jtical activities, that the application of the overbreadth doctrine

ion facial overbreadth grounds should be limited, in cases of con-

iduct, to statutes which are substantially overbroad. (cont'd.)

The language of Connecticut's telephone harassment statute

allows for a substantially overbroad application. The elements of

| §183(3) require proof of (1) intent to harass, annoy or alarm

a (2) the making of a phone call, whether or not conversa--

I tion ensues, (3) in a manner likely to cause annoyance or alarm. .

em the statute appears superficially neutral in that it does

not specifically condemn language or speech, the phrase "in a

manner likely to cause annoyance or alarm" renders it facially

overboard, Many communications by telephone which are clearly

'protected by the First Amendment can be punished by this statute.

Lobbyists for or against any political issue, be it nuclear power,

jabortion, disarmament; of Sunday: closings, could be penalized for

| calling legislators in their offices during office hours in

attempts to change legislators’ opinions if they pressed their

| issue "in a manner likely to cause annoyance or alarm." A

lobbyist may very specifically intend to alarm a public official

with news communicated by telephone that his group has sufficient

|| Support to put that official's future in doubt through defeat at

| reelection or a recall referendum. The First Amendment would not

countenance criminal sanctions for such communication merely

‘may be the speediest, most personal and most effective way for a

voter in New Haven to communicate his or her complete disapproval

lof the proposed vote of his senator in Hartford on a new death

pena2ty bill.

| The right to petition one's government for redress of griev-

ances does not evaporate when a business telephone is used in a

| . - .

| io “"s ware . s , —— o. ~.

, Ve te

‘

5 ‘(contd..):. Thiercase-presents. substantial overbreadth not

‘only on the face of the statute, but even more Clearly as it was

‘applied to speech. This Court made clear in Lewis, SUREA, a later

\case, that the overbreadth doctrine fully applies in the context

of criminal sanctions where the state courts have refused to nar=

xrowly construe an overbroad statute.

a" ie ‘

| ae a

> \ i og ew Pe , — " on "

because it was made via telephone. A long distance telephone call |”

way which may be merely annoying. Conviction under a statute

which forbabe three or more persons to assemble to conduct them-

sélves "in a manner annoying to passersby” was invalidated in

‘/Coates v. Cincinnati, 402 U.S. 611 (1971), where this Court stated

that the right of assembly could not be restricted, "simply be-

cause its exercise may be ‘annoying' to some people." Id. at 615.

As this Court held in Terminiello v. Chicago, 337 U.S. 1 (1949),

‘reversing the disorderly conduct conviction of a speaker a+ a

‘public meeting, who attacked "Communistic, Zionistic Jews,"

| [F]lreedom of speech, though not absolute,

is nevertheless protected against censorship or

punishment, unless shown likely to produce a

clear and present danger of a serious substantive

evil that rises far above inconvenience, annoyance

or unrest.

Fe at 4. [Emphasis added].

The fact that the statute in question requires a specific

intent "to harass, annoy, or alarm another person," 53a Conn. Gen.

‘Stat. §183(3), does nothing to cure the overbreadth problem. If

actually annoying or alarming legislators by telephone, for exam-

ple, cannot be totally proscribed consistently with the First

Amendment, it makes no difference whether the caller acts with an

intent to annoy. Even if he does, his action is protected. While

a specific intent requirement may sometimes help to save a statute

\from a constitutional vagueness challenge, it has no bearing at.all

a issues of overbreadth. |

| It may be argued that the statute does not explicitly pro-

scribe speech, in that it punishes making a call, “whether or not

lconversation ensues." However, it cannot be argued in this case

iat the statute as applied was not used specifically to proscribe

ithe content of expression. The trial judge instructed the jury to

consider whether the "telephone call, in the conversation, har-

| assed and annoyed another person." App. 2nd Cir. 18. Again, he

| reminded the jury that they had heard "testimony as to the lan-

“guage that was used in the course of that telephone call." App.

2nd Cir. 21.

Although the District Court suggested that the trial judge's

instructions to consider the content of the telephone conversation

lwere meant to suggest only that the content might be relevant to

ithe issue of intent, such a conclusion cannot be supported when

‘the actual instructions are examined. The entire paragraph which

‘ees the central disputed instruction:reads as follows:

| So the test again is what people of common

i! intelligence and common sense would understand

would be a telephone call made in a manner likely

to cause or have a direct tendency to cause

annoyance or alarm. So if you find in this case

; that the defendant made a telephone call with

that intention in mind to harass, to anno and

in fact that that tele hone call, in the conver-

Sation, harassed and anno ed another erson, then

under those circumstances ou would Prana the

defendant guilty of that pry If you do not

find those elements to have been proven beyond a

reasonable doubt, then under those circumstances

your verdict in connection with this particular

charge would be one of not guilty as regards to

harassment.

App. 2nd Cir. 18-19 {emphasis added]. In context, the instruction

|, Clearly orders-the jury?to consider*the content of the conversa-

I tdon in determining whether or not the telephone call was made in

"a manner likely to cause annoyance or alarm," 53a Conn. Gen. Stat.

H s1¢3(3) and not in determining Mrs. Gormley's intent in making the

‘alleged call. Infact, there is no suggestion at ali that consid-

leration of the content of the call should be limited to its

bearing on the issue of intent, and the Connecticut Appellate

iSession never suggested that the instruction could be so construed,

‘State v. Anonymous (1978-4), 34 Conn. Supp. 689, 389 A.2a 1270

| (1978), App., Doc. D.

IL ee

oe =

| Where a statute sweeps within its scope expression which is

| punished for its content, then a conviction can be upheld only if

) that sweep is not susceptible of application to protected expres-

‘sion, In this case the only unprotected category of expression

| inte which the alleged conduct even arguably fell was "fighting

|words." That phrase means "words that have a direct tendency to

icuase acts of violence by the person to whom, individually, the

_— is addressed." Gooding v. Wilson, supra, 405 U.S. at 523.

| Of course it is improbable that acts of violence were going to

oceur over the telephone. The jurors, at any rate,..were not given

| the constitutional limitations on what expression could be pun-

| ished by either the words of the statute or the instructions of

I ehe trial judge. Without these qualifying limits, they were Left

haere in the broad wash of the word "annoy," without the tools to

\determine a constitutional conviction. The statute, which is

‘substantially overbroad on its face, was made even broader by the

‘explicit directions of the trial judge to consider language with-

}out the constitutional limitations.

There have been no reported Connecticut cases discussing or

[Limiting the harassment statute other than the opinion in this

case. The Appellate Session of the Superior Court refused the

opportunity to construe or narrow the statute and upheld the

jtrial judge's instructions. As stated in Robinson v. California;

'370 U.S. 660, 666 (1962):

I The instruction of the trial court, implicitly

approvee on appeal, amounted to ‘a ruling on a

question of state law that is as binding on us as

though the precise words had been written’ into the

statute. Terminiello v. Chicago, 337 U.S. 1, 4. “We

ay — take the statute as the state courts read it."

Id. at 6.

veal Bena inn Seah AY an te -* er ee - wu

7T a ic,

| This Court, therefore, has before it for possible review a state

_ conviction under an overly broad statute expressly applied to

| speech.

Respectfully submitted,

487 MAIN STREET, SUITE 2

HARTFORD, CONNECTICUT 06103

(203) 522-8631

a ~ a! oT. eo 4

DOCUMENT A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-—

No. 913—September Term, 1979

(Argued March 18, 1980 Decided May 27, 1980)

Docket No. 79-2241

—_—>—

MARY GORMLEY,

Appellant,

Vv.

DIRECTOR, CONNECTICUT STATE DEPARTMENT OF PROBATION

and ATTORNEY GENERAL OF THE STATE OF CONNECTICUT,

Appellees.

—>—

Before:

WATERMAN, MANSFIELD and TIMBERS,

Circuit Judges.

———

Appeal from a judgment entered in the District of Con-

necticut, M. Joseph Blumenfeld, District Judge, denying

a petition for a writ of habeas corpus which challenged, as

unconstitutionally overbroad on its face and as applied,

3109

a ut. B.itws 32 Nefincs wa ke — ee

the Connecticut telephone harassment statute under

which appellant was convicted.

Affirmed.

San

JOSEPH RUBIN, Hartford, Conn., for appellant.

ROBERT E. BEACH, JR., Asst. State’s Atty., Wal-

lingford, Conn., for appellees.

—>—

TIMBERS, Circuit Judge:

One of the symptoms of a sick segment of our society is

the increasing frequency with which the telephone is used

to harass and annoy others. Many states, as well as the

federal government, have enacted statutes which make

that conduct a criminal offense.

Such a statute—the Connecticut telephone harassment

statute’—is before us on the instant appeal from a judg-

ment entered in the District of Connecticut denying appel-

lant Mary Gormley’s petition for a writ of habeas corpus.

The questions presented are whether that statute, under

which appellant was convicted in the Connecticut state

courts, is unconstitutionally overbroad on its face and as

applied. We agree with the district court and the state

courts that it is not. We affirm the judgment of the dis-

trict court.

1 The Connecticut telephone harassment statute, Conn. Gen. Stat.

§ 53a-183(aX3) (Rev. 1958, Supp. 1979), in relevant part provides:

“A person is guilty of harassment when . . . (3) with intent to

harass, annoy or alarm another person, he makes a telephone call,

whether or not a conversation ensues, in a manner likely to cause

annoyance or alarm.” :

3110

ee ee ~~ B+ .. . ~

The events which led tp appellant’s conviction in the

state courts occurred on the evening of September 1,

1974. They involve two separate but related incidents.

The first incident occurred about 6:30 P.M. The com-

plainant* and a friend drove into the parking lot of

Hardee's Restaurant in Newington, Connecticut, where

complainant worked. Appellant, who had been following

complainant, drove her car into the same parking lot and

pulled up abreast of complainant’s car. As complainant

emerged from her car, appellant shouted from her car

window that complainant was a “tramp”, that

complainant’s mother was a whore and had gone to bed

with appellant’s husband, and that appellant was “going

to get” complainant this time. While appellant was shout-

ing these insulting remarks, complainant and her friend

walked toward the restaurant and entered. This incident

was the basis for the disorderly conduct charge for which

appellant was prosecuted under Conn. Gen. Stat. § 53a-

182(aX2) (Rev. 1958, Supp. 1979).

The second incident occurred between 9:00 and 10:00

P.M. the same evening. Appellant telephoned Hardee’s

Restaurant where complainant was working. The man-

ager who received the call passed the receiver to another

. = . ss) " aye er

oe re = A aes Le are, ADV eee = ee Le

employee who in turn passed the receiver to complainant.

When complainant got to the phone she heard appellant

repeat substantially the same insulting remarks she had

made earlier in the evening in the parking lot. Appellant

added, however, that she had photographs to prove that

complainant’s mother had been in bed with appellant’s

husband, that complainant’s family were a bunch of nuts

and were all under psychiatric care. This telephone call

was the basis for the harassment charge for which appel-

lant was prosecuted under Conn. Gen. Stat. § 53a-

183(aX3) (Rev. 1958, Supp. 1979).

Appellant was charged in a two count information and

was convicted on March 18, 1976 on the disorderly con-

duct and harassment counts after a jury trial in the Court

of Common Pleas at New Britain. She was sentenced on

April 15, 1976 on each count to consecutive three month

terms of imprisonment. Execution of the sentences of im-

prisonment was suspended and she was ordered to serve

consecutive one year terms of probation under the super-

vision of the Department of Adult Probation.

Appellant appealed to the Appellate Session of the Su-

perior Court. On September 9, 1977 her conviction on the

disorderly conduct count was set aside and a new trial was

ordered; but her conviction on the harassment count was

affirmed. State v. Anonymous, supra note 2. On March 7,

1978 the Connecticut Supreme Court denied appellant's

petition for certification.’ Id.

Appellant thereupon filed a petition for a writ of habeas

corpus in the District Court for the District of Connecti-

3 On May 17, 1978 the Court of Common Pleas ordered that appellant

commence serving her sentence of probation. Magistrate Eagan on June

16, 1978 entered a stay of this order which he later lifted on February 7,

1979. For aught that appears in the record before us, appellant has not

yet commenced serving her sentence of probation. It is for this reason

that we order that our mandate issue forthwith.

3112

cut. In a well reasoned opinion dated October 19, 1979,

Judge Blumenfeld denied appellant’s habeas petition; in

so doing, he accepted Magistrate Eagan’s findings of fact

as modified and accepted the magistrate’s reeommenda-

tion that the petition be denied.

From the judgment entered on Judge Blumenfeld’s

opinion, this appeal has been taken.

In the light of these facts and prior proceedings, we turn

directly to the chief issue on this appeal, namely, whether

the Connecticut telephone harassment statute under

which appellant was convicted is unconstitutionally over-

broad on its face. We hold that it is not.

Congress has enacted the federal telephone harassment

statute,‘ 47 U.S.C. § 223 (1976), the relevant provisions

of which closely parallel the Connecticut statute here in-

4 The federal telephone harassment statute, 47 U.S.C. § 223(1) (1976),

in relevant part provides:

“Whoever—

(1) in the District of Columbia or in interstate or foreign com-

munication by means of telephone—

(A) makes any comment, request, suggestion or proposal

which is obscene, lewd, lascivious, filthy, or indecent;

(B) mukes a telephone call, whether or not conversation en-

sues, without disclosing his identity and with intent to annoy,

abuse, threaten, or harass any person at the called number;

continuously to ring, with intent to harass any person at the

called number; or

(D) makes repeated telephone calls, during which conversa-

tion ensues, solely to harass any person at the called number;

shall be [punished].” (Emphasis added to indicate language parallel

to that in Connecticut telephone harassment statute.)

3113

volved. The Third Circuit in United States v. Lampley,

573 F.2d 783 (3 Cir. 1978), rejected First Amendment

attacks upon the constitutionality of the federal tele-

phone harassment statute on its face. The Lampley court

emphasized that

“(I]n enacting § 223 the Congress had a compelling

interest in the protection of innocent individuals

from fear, abuse or annoyance at the hands of persons

who employ the telephone, not to communicate, but

for other unjustifiable motives.” Id. at 787 (citations

omitted).

The parallel between the “compelling interest” which

Congress sought to protect in enacting the federal statute

and the equally compelling interest which the Connecti-

cut legislature sought to protect in enacting the statute

here in question was succinctly stated by J udge Blumen-

feld in his opinion below:

“Connecticut’s interest is equally compelling and is

unrelated to the suppression of free expression, as

evidenced by the statute’s neutral approach to ensu-

ing conversation. or its absence. And like the federal

law, Connecticut's specific intent requirement ‘pre-

cludes the proscription of mere communication.’ [/d.

at 787)” :

Clearly the Connecticut statute regulates conduct, not

mere speech. What is proscribed is the making of a tele-

phone call, with the requisite intent and in the specified

manner. As the Appellate Session of the Superior Court

stated in State v. Anonymous, supra, 34 Conn. Supp. at

696, 389 A.2d at 1273, “{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

3114

as the most scurrilous epithet.” Indeed, by its express

terms the statute may be violated where no conversation

at all occurs.

In considering appellant’s claim that the Connecticut

statute is overbroad on its face and sweeps within its pur-

view communication which is protected by the First

Amendment, we must be guided by the standard enun-

ciated by the Supreme Court in Broadrick v. Oklahoma,

413 U.S. 601, 615 (1973):

“{W]here conduct and not merely speech is involved,

we believe that the overbreadth of a statute must not

only be real, but substantial as well, judged in rela-

tion to the statute’s plainly legitimate sweep.”

The asserted breadth of the Connecticut statute is cir-

cumscribed by the elements of the offense it proscribes.

To run afoul of the statute, a telephone call must be made

not merely to communicate, but “with intent to harass,

annoy or alarm” and “in a manner likely to cause annoy-

ance or alarm.” Whether speech actually occurs is irrele- -

vant, since the statute proscribes conduct, whether or not

a conversation actually ensues. United States v. Lampley,

supra, 573 F.2d at 787.

Harassing telephone calls are an unwarranted invasion

of privacy. They appear to be on the increase. They are

properly outlawed by federal and state statutes. The pos-

sible chilling effect on free speech of the Connecticut stat-

ute strikes us as minor compared with the all-too-

prevalent and widespread misuse of the telephone to hurt

others. The risk that the statute will chill people from, or

prosecute them for, the exercise of free speech is remote.

The evil against which the statute is directed is both real

and ugly.

3115

We hold that the Connecticut telephone harassment

statute is not unconstitutionally overbroad on its face.*

The Connecticut statute is readily distinguishable from the telephone

harassment statutes which were held unconstitutionally overbroed in

caseg relied on by appellant such as Walker v. Dillard, 523 F.2d 3 (4

Cir.), cert. denied, 423 U.S. 906 (1975), and Radford v. Webb, 446

F.Supp. 608 (W.D.N.C. 1978), aff'd per curiam, 596 F.2d 1205 (4 Cir.

1979). In both cases the statutes punished speech alone. The statute

involved in Walker made it unlawful for any person to “curse or abuse

anyone, or use vulgar, profane, threatening or indecent language” over

the telephone. Walker v. Dillard, supra, 523 F.2d at 4 n.1. In Radford

the statute outlawed the use in telephone communications of “any

words or language of a profane, vulgar, lewd, lascivious or indecent

character, nature or connotation”, Radford v. Webb, supra, 446 F Supp.

at 610, and hence “would reach comments made in the course of heated

argument or expressions of justified indignation just as easily

as . . . the traditional obscene phone call.” Jd. at 610-11.

We are mindful that the courts of several states have struck down

telephone harassment statutes as unconstitutionally overbroad. Bolles

v. People, 189 Colo. 394, 541 P.2d 80 (1975); People v. Klick, 66 IlL2d

269, 362 N.E.2d 329 (1977); State v. Dronso, 90 Wis.2d 149, 279

N.W.2d 710 (1979). Accordingly, we have been invited likewise to hold

unconstitutional the Connecticut statute or, at least, to caution the

Connecticut courts in the future to construe the statute narrowly so as

to eliminate any overLreadth. We decline the invitation.

We note that our concurring colleague would not decline the invitation

to caution the Connecticut courts to construe the statute narrowly so as

to eliminate any overbreadth. Accordingly, we suggest that Judge

Mansfield’s concurring opinion should be read in the light of the follow-

ing observations.

First, it is not the proper function of the federal courts independently to

construe a state statute so as to eliminate its overbreadth, if any, for

that can be done only by the state. Gooding v. Wilson, 405 U.S. 518, 520

(1972). What the Supreme Court has cautioned us should not be done

directly surely should not be done by implication, as our concurring

colleague would do by way of dictum.

Second, since in our view the Connecticut statute is not overbroad,

“whatever overbreadth may (be said to] exist should be cured through

case-by-case analysis of the fact situations to which its sanctions, as-

ee may not be applied.” Broadrick v. Oklahoma, supra, 413 U.S.

at 615-16.

Third, having in mind that the Supreme Court has never struck down,

or sanctioned the striking down of, a state telephone harassment stat-

ute, we should bear in mind that the Court in Broadrick could hardly

3116

Appellant also claims that the Connecticut statute is

unconstitutionally overbroad as applied to her. We dis-

agree.

Her claim in this respect is based on the state trial

court’s charge which focused the jurors’ attention on the

content of the telephone call. Our careful examination of

the charge as a whole satisfies us that the trial court’s

instruction that the jury was entitled to consider “the

language that was used in the course of the telephone call”

was for the purpose of enabling the jury to determine

whether the state had proven the essential element of

intent as required by the statute. As the Third Circuit

stated'in United States v. Lampley, supra, 573 F.2d at

787, “Whether or not the actual conversation contains

harassing language may be relevant to the question of

intent.” »

have admonished more emphatically against facial overbreadth adjudi-

cation of a state statute by t’:e federal courts:

“(FJacial overbreadth adjudication is an exception to our traditional

rules of practice and that its function, a limited one at the outset,

attenuates as the otherwise unprotected behavior that it forbids the

State to sanction moves from ‘pure speech’ toward conduct and that

conduct—even if expressive—falls within the scope of otherwise va-

lid criminal laws that reflect legitimate state interests in maintain-

ing comprehensive controls over harmful, constitutionally unpro-

tected conduct. Although such laws, if too broadly worded, may

deter protected speech to some unknown extent, there comes a point

where that effect—at best a prediction—cannot, with confidence,

justify invalidating a statute on its face and so prohibiting a State

from enforcing the statute against conduct that is admittedly within

its power to proscribe.” 413 U.S. at 615 (citation omitted).

Fourth, the references throughout the concurring opinion to “speech-

less calls” (e.g. “repeated speechiess calls of the type presented here”)

appear to be misdirected. This case does not involve speechless calls.

In short, having carefully considered Judge Mansfield’s concurring

opinion, we adhere to our majority opinion in all respects.

3117

In the instant case, we believe that the trial court's in-

struction to the jury to consider the language used by

appellant in the course of the telephone call not only was

permissible; it was indispensable to a proper determina-

tion of whether the Statutory requirement of “intent to

harass” had been proven.

We hold that the Connecticut telephone harassment

statute is not unconstitutionally overbroad as applied to

appellant.

Appellant was convicted on the basis of overwhelming

evidence of a serious crime committed more than five

years ago—violation of the Connecticut telephone harass-

ment statute. Her attack upon the constitutionality of

that statute has been carefully considered and uniformly

rejected by the Connecticut state courts, by a federal mag-

istrate, by a federal district judge and by this Court. We

order that the mandate issue forthwith.

Affirmed.

—+»—

MANSFIELD, Circuit Judge (Concurring):

I concur on the limited ground that the Connecticut

telephone harassment statute, Conn. Gen. Stat. Ann.

§ 53a-183(a\3) (Rev. 1958, Supp. 1979), if narrowly con-

strued by the Connecticut Supreme Court to apply only to

speechless calls or to obscene or threatening calls of the

type involved in this case, may be upheld if so construed.

Unfortunately, since appellant took no exception to the

trial judge’s charge to the jury, the judge was never af.-

3118

forded the opportunity to so construe the statute and in-

struct the jury in terms of the narrower construction.

However, I believe the Connecticut Supreme Court should

be afforded the opportunity to construe the statute so that

it will not penalize the exercise of First Amendment free

speech rights.' If it were not so construed, the statute

would clearly be void for overbreadth.

No person enjoys being the victim of repeated speech-

less calls of the type presented here. The state has a legiti-

mate interest in protecting persons against such unwar-

ranted invasion of privacy by others. See Miller v.

California, 413 U.S. 15 (1973); Rowan v. Post Office De-

partment, 397 U.S. 728 (1970). On the other hand, the

First Amendment right of a person to communicate with

another by telephone, even if the call may be considered

“harassing” by the recipient, must also be respected.

Telephone calls by irate citizens to their Congressmen,

by collectors seeking payment of legitimate bills overdue,

by customers voicing to a seller dissatisfaction with goods

or services purchased, and calls of like tenor, are likely to

be annoying, even harassing, to the recipients. Such calls

are usually made to influence the person called. No one

could seriously question the caller's free speech right un-

der the First Amendment to engage in such telephone

conversations. Yet, by prohibiting telephone calls made

“with intent to annoy” and “in a manner likely to cause

annoyance,” the Connecticut statute could be construed as

1 The Connecticut Supreme Court denied certification without opinion,

State v. Gormley, 174 Conn. 803, 382 A.2d 1332 (1978). This denial

reflects nothing on the Connecticut Supreme Court's opinion of the

merits of this case. “{A]} denial of certification does not necessarily

indicate our approval either of the result reached by the Appellate

Division or of the opinion rendered by it.” State v. Chisholm, 155 Conn.

706, 707, 236 A.2d 465, 466 (1968). Accord, State v. Doscher, 172

Conn. 592, 376 A.2d 359 (1977).

3119

prohibiting the exercise of this free speech. Thus, the fact

that the statute also prohibits the mere making of tele-

phone calls where no speech follows hardly saves it from

unconstitutional overbreadth. It is no comfort to the citi-

zen telephoning his Congressman or to the defrauded con-

sumer calling the swindler to know that the statute was

not intended to apply to their telephone calls if its lan-

guage plainly does so. The mere existence of a statute

prohibiting such obviously lawful exercise of a free speech

right has a chilling effect, particularly if enforcement is

threatened by the recipient of a call.

Labelling the statute as one prohibiting “conduct” does

not resolve this constructional dilemma. [n most cases the

“conduct” punished is the oral communication rather than

the ringing of the telephone bell. The statute is not limited

to the mere making of speechless telephone calls; were

that the case, its constitutionality would be upheld. See,

Cox v. Louisiana, 379 U.S. 536, 555 (1964). Cf., Palma v.

Powers, 295 F. Supp. 924, 941 (D.C. Ill. 1969) (telephone

service is not speech protected by the First Amendment).

Indeed a statute prohibiting obscene, threatening, or

speechless calls, made with intent to harass, would proba-

bly pass constitutional muster. But if the statute here

were construed, as it easily could be, to prohibit any tele-

phone call made “with intent to annoy,” which had such

effect, it would patently violate the First Amendment.

The overbreadth would not only be real, but substantial.

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

Nor do any of the authorities relied upon by the major-

ity support the view that such a potentially overbroad

statute is constitutional on its face; on the contrary, most

of the decided cases are to the contrary. Although the

Third Circuit, in United States v. Lampley, 573 F.2d 783

(3d Cir. 1978), upheld the federal telephone harassment

3120

statute, 47 U.S.C. § 223, it did so against a claim of vague-

ness, not overbreadth. Nothing in the decision supports

the majority's citation of it as rejecting an overbreadth

challenge, as is made here. In contrast, several courts have

struck down similar telephone harassment statutes as

overbroad. See, e.g., People v. Klick, 66 Ill.2d 269, 362

N.E.2d 329 (1977) (Illinois statute providing that “A per-

son commits disorderly conduct when he know-

ingly: . . . (2) with intent to annoy another, makes a

telephone call, whether or not a conversation thereby en-

sues.”); State v. Dronso, 90 Wis.2¢ 149, 279 N.W.2d 710

(1979) (Wisconsin statute providing that one is guilty of

disorderly conduct if “{w]ith intent to annoy another, [he]

makes a telephone call, whether or not a conversation

ensues.”). See also, Bolles v. People, 189 Colo. 394, 541

P.2d 80 (1975) (Colorado statute providing that one com-

mits harassment if, “with intent to harass, annoy or alarm

another person, he: . . . communicates anonymously or

otherwise, by telephone, telegraph, mail or any other

form of communication in a manner likely to harass or

cause alarm.”). :

The state may not abridge one’s First Amendment

freedoms merely to avoid annoyances. Coates v. Cincin-

nati, 402 U.S. 611 (1971).

“The ability of government, consonant with the Con-

stitution, to shut off discourse solely to protect others

from hearing it is, in other words, dependent upon a

showing that substantial privacy interests are being

invaded in an essentially intolerable manner.” Cohen

v. California, 403 U.S. 15, 21 (1971).

Moreover, the First Amendment protects more than

just amiable communications. See, Norwell v. City of Cin-

cinnati, 414 U.S. 14 (1973); Gooding v. Wilson, 405 U.S.

3121

Pe ]

518 (1972); Ternsiniello v. City of Chicago, 337 U.S. 1

-(1948); Chaplinsky v. New Hampshire, 315 U.S. 568

(1942). A telephone harassment statute should be care-

fully tailored to avoid constitutional vulnerability on the

ground that it needlessly penalizes free speech.

Applying these principles here, I am forced to conclude

that, depending on how it is construed by the Connecticut

Supreme Court, Conn. Gen. Stat. § 53a-183(aX3) (Rev.

1958, Supp. 1979), might be constitutionally vulnerable

for overbreadth. Since we are precluded from construing

this state statute, Gooding v. Wilson, 405 U.S. at 520, and

a narrow construction by the Connecticut Supreme Court

would lead to the statute’s being upheld as applied to the

facts of this case, I concur in the result reached by the

majority. Should the Connecticut Supreme Court, how-

ever, interpret the statute broadly to encompass constitu-

tionally protected free speech, as distinguished from ob-

scene, threatening or speechless telephone calls made

with intent to harass the recipient, I would then feel com-

pelled to declare the statute unconstitutional on its face.

3122

a 2 BS. aT at oa fe | _

8B My-2uu ‘ 3

Cure Ga Dey -7677 . FILES

haces BME 847 | Fes 7 Q 2. AH'79

° CuERK

\e U.S. DISTS'CT COURT

G23 - 41! HARTFOSO, CONN.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

MARY GORMLEY

vs. : CIVIL NO. H-78-264

DIRECTOR, CONNECTICUT STATE

DEPARTMENT OF ADULT PROBATION, :

‘jand THE ATTORNEY GENERAL OF

THE STATE OF CONNECTICUT

RECOMMENDED RULING ON PETITION

FOR WRIT OF HABEAS CORPUS

The petitioner, Mary Gormley, applied to this court for

a writ of habeas corpus pursuant to 28 U.S.C. §2254 (1966),

releasing her from the custody of the Connecticut Departmenc

of Adult Probation. She claims that CONN. GEN. STAT. ANN.

§53a-183(a)(3)” is unconstitutional on its face, and as

‘applied, because it punishes protected speech. The petitioner

has also moved for enlargement from the custody of the respon-

dent state of Connecticut. After hearing and by agreement, .

commencement of the state sentence of probation was stayed

pending decision on the petition for habeas corpus.

The petitioner was found guilty by a state jury of

harassment in violation of both CONN. GEN. STAT. ANN. §§ 53a-

182(a)(2) and 53a-183(a)(3). Her appeal assigning error in

the denial of her motion to set aside the verdict resulted

in the decision of the Appellate session that the disorderly

conduct conviction under §53a-182(a)(2) violated fimdamental

first amendment rights. State v. Anonymous, 389 A.2d 1270,

: 2/

34 Conn. Supp. 689 (1978-4).~ The state appellate court

however, found that the prohibition against ‘harassing, annoy-

ing, or alarming’ telephone calls in §53a-183(a) (3) withstood

constitutional attack and petitioner's conviction was upheld.

State v. Anonymous, supra, at 1273. Both parties filed for

certiorari to the Supreme Court of the state of Connecticut

and certiorari was denied without opinion on March 7, 1978.

The state has agreed that state remedies have been exhausted

and thus no question as to federal jurisdiction appears. /

The petitioner has alerted this court to the absence of

a formal answer by the state. The effect of such a failure

to deny, it is claimed, is the admission of petitioner's

averments. Fed. R. Civ. P. 8(d). In this case, the interest

of providing requisite notice of the respondent's arguments

to the petitioner was diluted: the respondent's arguments

were aired in a hearing on June 15, 1978 concerning the peri-

tioner’s Motion for Enlargement. "The Federal Rules rejecz

the approach that pleading is a game of skill in which one

misstep by counsel may be decisive to the outcome and accept

the principle that the purpose of pigading is to facilitate a

‘proper decision on the merits." ‘Conlew v. Gibson, 355 U.S.

41, 48 (1957); United States v. Hougham, 364 U.S. 310, 317

(1960). "“[T]he habeas court must itself insure that the

relevant facts were found and that the correct legal standard

was applied to them." United States ex rel. Williams v.

LaVallee, 487 F.2d 1006, 1910 (24 Cir. 1973), cert. denied,

416 U.S. 916 (1974); Fed. R. Civ. P. 8(€£): "All pleadings

shall be so construed as to do‘ substantial justice."; Conley

v. Gibson, supra, at 47, 48; Fed. R. Civ. P. 1. Importantly,

the petitioner received notice through respondent's brief and

availed herself of the opportunity to reply to that brief.

Fed. R. Civ. P. 8(e)(1): "No technical forms of pleadings or

motions are required."

Both the presumption created by 28 U.S.C. §2254(d) (1966)

-2- >

and the interests of comity require that a federal court

accord great weight to state court's findings of fact in a

habeas corpus action. LaValle v. Delle Rose, 410 U.S. 690,

ees

694-95 (1973); Townsend v. Sain, 372 U.s. 293 (1963).

Thus, we accept the findings of fact of the state court,

which were summarized by the appellate session as follows:

On the same evening the defendant telephoned

the complainant at the restaurant where she

was working. After the complainant was

called to the Phone, she heard the defendant

repeat substantially the Same insults as

those which had been made earlier in the

parking lot of the restaurant.

Those insults were

that the complainant was a "tramp", that

her mother was a whore and had gone to bed

with the defendant's husband, and that the

defendant was “going to get" the complainant

ie, Tah State 2 Anonymous, 389 A.2d

The trial judge 's charge to the jurors provided then

with definitions of “harass", “annoy” and "alarm" and instrz::-

ed them that if they found the defendant-petitioner had sade [|

a telephone call with the intent to harass, annoy or alarm

another person and the call did so, then the defendant-

petitioner would be guilty of the offense. State v. Anonymous ,

Supra, at 1273. These were the articulated constitutional

Standards applied by the trial court fact-finder. -*

As stated in Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975

&@ case also brought on a habeas petition challenging the

constitutionality of a state "telephone abuse’ statute on

first amendment grounds: "We start from the propositicn that

the state has a legitimate interest in prohibiting obscene,

threatening, and harassing phone calls, none of which are

generally thoughr of as Protected by the Firsc Amendment." 523

F..d at 4. State v. Jaeger, 249 N.W.2d 688 (Iowa, 1977);

State v. Hagan, 588 P.2d 750 (Ariz. App. 1976); People v. Saith,

Cinvend wweelv

392 N.Y¥.S.2d 968 (1977); but see, People v. Klick, 362 N.E.2d

329 (Ill. 1977). At the same time we must allow the ‘breathing

space’ essential to the survival of first amendment freedoms.

Gooding v. Wilson, 405 U.S. 518, 522 (1972); Watts v. United

States, 394 U.S. 705 (1969); Cohen v. California, 403 U.S. 15

(1971). For that reason criminal statutes will be even more

strictly scrutinized for first amendment defects than civil

statutes. F.C.C. v. Pacifica Foundation, — U.S.—, 98 §.ct.

3026, 3041 (1978); Watts v. United States, supra.

This court lacks the ‘authority to authoritatively con-

strue state legislation’ so as to mollify serious first

amendment deficiencies in a statute which has not otherwise

been effectively narrowed by a state court. Gooding v. Wils-:-.,

Supra, at 520; United States v. Thirty-Seven (37) Photographs,

402 U.S. 363, 369 accent Walker v. Dillard, supra.

We find ‘that CONN. GEN. STAT. ANN. -§53a-183(a) was both

carefully drawn and: construed sO as not to be susceptible of

application to protected speech. The statute specifically

applies only to the individual who ‘makes a telephone call

with intent to harass, annoy or alarm’, in a manner annoying

or alarming to a reasonable person. No facial overbreadth, or

overbreadth as applied to the facts here, can be found where

the legislature successfully Pproscribes the making of telephone

calls, "whether or not a conversation ensues". §53a-183(a) (3)

(emphasis added) .

The appellate court in State v. Anonymous, supra, in-

fringes upon no protected interest by construing the statute

as a legitimate protection of the privacy rights of unreceptive

listeners.. Citing, Rowan v. Post Office Department, 397 U.S.

728 (1970); Lehman v. Shaker Heights, 418 U.S. 298 (1974).

Appropriate alternative means of commmication which will not

-4-

“

infringe upon the privacy rights of a captive audience remain

untrammeled by the statute.

A federal district court in Walker v. Dillard, supra, did

invalidate a statute which at first glance appears similar to

the Connecticut statute at issue oe The Virginia statute

is devoid of Connecticut's explicit prohibition against making

a telephone call "in a manner likely to cause annoyance or

alarm". §53a-183(a)(3) (emphasis added). Thus, no protection

is offered to the indiscreet recipient of an abusive call.

Furthermore, Virginia's statute does not either require in-

tent or limit es to telephone calls ‘whether or not

a conversation ensues’.

The petitioner's application for a writ of habeas corpus

is denied, as is the motion for enlargement. The June 15,

|} 1978 Order staying the state suspended sentence is lifted.

Dated at Hartford, Connecticut, this Pe: dias he day of

peteieieie. 1979. ; ane

\ ~:

‘REF

tae

- Aen ae

Fr, Owen Lagan

United Stapas Magistrate

. FOOTNOTES

1 CONN. GEN. STAT. ANN. §53a-183(a)(3) reads as

follows:

"A person is guilty of harassment when:

-»+ (3) with intent to harass, annoy or

alarm another person, he makes a tele-

phone call, whether or not a conversation

ensues, in a manner likely to cause

annoyance or alarm."

2/ Thus entitled, in view of CONN. GEN. STAT. ANN.

§54-90.

3/ VA. CODE ANN. §18/1-238 states:

“If any person shall curse or abuse any-

one, or use vulgar, profane, threatening or

indecent language over any telephone in ”

this State, he shall be guilty of a misde-

meanor...".

' ,4/° The language of Connecticut's statute much more ..

“4 * | closely resembles that of a statute passed by the United

States Congress, 47 U.S.C. §223(1)(B) (1968) which has not

been challenged in court on first amendment grounds. Under

— ere a person is guilty of making harassing telephone

calls e

“makes a telephone call, whether or not

conversation ensues, without disclosing

his identity and with intent to annoy,

abuse, threaten, or harass any person at

the called number."

ror ee e toe cases eee ee -— es -

Wer iS 3 22 ANo7g

UNITED STATES DISTRICT COURT cag

Gaeta ‘“«? Soyer

DISTRICT OF CONNECTICUT. UN.

MARY GORMLEY :

v. CIVIL NO. H-78-264' 4

DIRECTOR, CONNECTICUT STATE

DEPARTMENT OF ADULT PROBATION, :

and THE ATTORNEY GENERAL OF

THE STATE OF CONNECTICUT :

RULING ON PETITIONER'S OBJECTION

TO _MAGISTRATE'S RECOMMENDED RULING

The petitioner, Mary Gormley, challenges the Recommended

]

Ruling of the Magistrate denying her application for a writ

of habeas corpus, filed pursuant to 28 U.S.C. § 2254 (1975).

She was convicted om April 15, 1976, of harassment, a Class C

misdemeanor under Comn. Gen. Stat. § 53a-183(a)(3), in a jury

trial in the New Britain Court of Common Pleas.’ State

remedies have been exhausted.

The facts, as the jury might have found them, are

summarized in the opinion of the Appellate Session. State v.

Anonymous (1978-4), 34 Conn. Supp. 689, 389 A.2d 1270 (1977).

The specific incident that led to the harassment charge was

petitioner's telephone call to the complainant on the evening

~ Petitioner's conviction for disorderly conduct stemming

from a related incident was reversed by the Appellate Session;

Superior Court of Hartford County. State v. Anonymous

(1978-4), 34 Comm. Supp. 689, 389 A.2d 1270 (1977). The

harassment conviction was affirmed. A petition for certifica-

tion to the Supreme Court of Connecticut was denied without

opinion on March 7, 1978,

eee eee -

-2-

of September 1, 1974, following an altercation earlier that

day in the parking lot of the restaurant where the comp lainant

worked.2/ The complainant testified that when she was called

to the telephone, she heard petitioner say "that she [peti-

tioner] had photographs to prove that my mother was in bed

with her husband, that our family are a bunch of nuts and we

are all under psychiatric care" (Tr. at oe

Comm. Gen. Stat. § 53a-183(a)(3) provides that, "A

person is guilty of harassment when . . . with intent to

harass, annoy or alarm another person, he makes a teleshene

gall, whether or not a conversation ensues, in a manner Like:

to cause emnovence or alarm.” (Emphasis added). Petitioner

claims that the. statute is overbroad, both facially and as

applied, in violation of the first amendment. Specifically,

the Magistrate's Recommended Ruling denying habeas relief is

attacked on two grounds: first, that the Ruling erred in

holding that the statute is not directed at the content of

expression; and, second, that the Ruling improperly rested a

conclusion of law on "facts" not present in the record. For

the reasons stated below, I accept the Magistrate's recommenda-

tion that the petition be denied.

There was evidence that petitioner followed the complainant |

to work and, in the parking lot, "drove up close to the

complainant, who had by then emerged from her car, . .. and

shouted from the car window that the complainant was a 'tramp;'

that her mother was a whore and had gone to bed with the

defendant's husband, and that the defendant was "going to get!

the complainant this time." State v. Anonymous, supra, at

690, 389 A.2d at 1271.

1PT. Boo. 8-70-1900. 9800

- 3-

I. OVERBREADTH

Connecticut's telephone harassment statute punishes

conduct, the making of a telephone call, when coupled with a

specific anti-social intent. : Conversation, or the lack of it,

is not an element of the offense. That a conviction may be

had, as in petitioner's case, when words are spoken does not

necessarily render the statute invalid. "{W]hen ‘speech’ and

"nonspeech' elements are combined in the same course of con-

duct, a sufficiently important governmental interest in regu-

lating the nonspeech element can justify incidental limitati-:::

om First Amendment freedoms." United States v. O'Brien, 39.

U.S. 367, 376 (1968).

Facial overbreadth in a statute regulating conduct,

rather than pure speech, "mist not only be real, but sub-

stantial as well, judged in relation to the statute's plainly

legitimate reach." Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973). The telephone abuse statutes struck down in Walker ve

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 per curiam, 596 F.2d 1205 (4th Cir. 1979), cases relied

on by the petitioner, were overbroad because they punished

speech alone and "would reach comments made in the course of

heated argument or expressions of justified indignation just

as easily as... the traditional obscene phone call." Id.

at 610-11; see Walker v. Dillard, supra, at 5.

OVI. uh -0.8.76.1908- 8000 |

-4-«-

In United States v. Lampley, 573 F.2d 783 (3d Cir.

1978), however, the court rejected a first amendment attack

on the federal pedestens abuse statute, 47 U.S.C. § 223(1)(B),

(D) (1976), the wording of which parallels quite closely the

Connecticut provision challenged by petitioner.2/ Refusing

to narrowly construe § 223(1)(D) so as to require the use of

“harassing language," the Lampley court emphasized chat

"Congress had a compelling interest in the protection of

immocent individuals from fear, abuse or annoyance at the

hands of persons who employ the telephone, not to commimicate,,

but for other unjustifiable motives." 573 F.2d at 787.

Commecticut's interest is equally compelling and is unrelatac |

to the suppression of free expression, as evidenced by the

statute's neutral approach to ensuing conversation or its

47 U.S.C. § 223 provides in relevant part:

"Whoever=-

(1) in the District of Columbia or in

interstate or foreign commmication by

means of telephone--

(B) makes a telephone call, whether or

mot a conversation ensues, without dis-

closing his identity and with intent to

ammoy, abuse, threaten, or harass any

person at the called number;

(D) makes repeated telephone calls, during

which conversation ensues, solely to

harass amy person at the called number;

shall be fined not more than $500 or imprisoned

mot more than six months, or both."

(V.ah -0-4.76-1608.3006

ASE

- 5 -«

absence. And like the federal law, Conmecticut's specific

intent requirement "precludes the proscription of mere

commmication.” Id.

Petitioner argues that the trial judge's charge to

the jury focused the jurors’ attention on the "content of

expression," rendering the statute overbroad as applied.

This claim is without merit. "Whether or not the actual con-

versation contains harassing language may be relevant to the

question of intent," id., and the jury were entitled to

consider "the language that was used in the course of the

telephone call" (Tr. at 384) for that purpose. The judge's

instructions to this effect (Tr. 381, 396) were neither

erroneous nor misleading.

II. DISPUTED FINDINGS OF FACT

Petitioner attacks the Magistrate's Recommended Ruling

for accepting as a fact the state court's finding that,

"After the complainant was called to the phone, she heard

the defendant repeat substantially the same insults as those

which had been made earlier in the parking lot of the

restaurant.” Magistrate's Recommended Ruling at 3, quoting

State v. Anonymous, suora, at 691, 389 A.2d at 1271. Those

insults are summarized in footnote 2 supra.

Perhaps the appellate court and the Magistrate were

not as precise as they might have been in sorting out for the

reader which set of petitioner's insults occurred during

which of the two incidents on the day in question. The only

OP). ate -6-8-76-1800-8000 |

——

- 6 «

relevant question, however, is what the jurors were told by

the trial judge, and a review of his instructions indicates

that the judge was careful to distinguish the two incidents,

the "conversations" that occurred during each one, the

different offenses attributable to each incident with which

petitioner was charged, and the purpose for which petitioner's

statements were to be used in considering those charges. At

no time did the judge suggest that the jury might consider

the petitioner's statements in the parking lot as being rele-

vant to the harassment charge. In any event, occurring as

it did so close in time to the telephone call, the parking

lot incident would be relevant to petitioner's intent at the

time the call was made.

Accordingly, I accept the Magistrate's findings of

fact regarding the events leading up to petitioner's convic- |

tion as modified by Part II of this ruling, and accept his

recommendation that the application for a writ of habeas

corpus be denied, and it is

SO ORDERED. i

Dated at Hartford, Comnecticut, this / 7 day of

October, 1979.

PP). him 0.7 8-18 00-3000

”

3. The trial court Properly exercised its

JCUMENT D

‘

August 22, 1978 CONNECTICUT LAW JOURNAL

The award for a portion of the psychiatric fees

was not in error in view of the previous court order

that a psychiatric examination be made. See Stoner

Vv. Stoner, 163 Conn. 345, 357, 307 A.2a 146.

The award of counsel fees is attacked by the

defendant, not on the grounds of the reasonableness

of the amount ordered or the propriety of paying

a legal clinic operated by a law school, but on the

narrow grounds that the Plaintiff received free

legal serviees and that the court did not, in any

case, adequately consider the defendant’s ability to

pay. The defendant Points to no finding of fact or

offer of proof that the plaintiff did not pay for legal

services, nor does the record support the claim that

the court did not consider the needs of the plaintiff

and the ability of the defendant. The finding ade.

quately supports the court’s award.

As to the merits of the custody order, the finding

of facts abundantly Supports the conclusions

reached by the court that the circumstances had

changed sufficiently sinee the dissolution and the

previous custody order to warrant issuance of a new

order granting the plaintiff custody of the three

children.

There is no error in the first appeal.

The second appeal is dismissed,

There is no error in the third appeal.

CONNECTICUT SUPPLEMENT

34 Conn. Sup. 689

STATE oF Coyxecticet v. Ayoyymovs ( 1978-4) *

APPELLATE Session OF THE SUPERIOR Court

“onvicted of the Statutory (§ 530-182 (a) [2)) offense of disorderly

conduct and of the further statutory (§ 53a-183 (9] [3)) offense

Of harnssment, the defendant appealed claiming error in the

charge to the jury and in a ruling om evidence. Held:

34 Conn. Sup. 690

1. Because the trial court’s failure to

defendant could be convicted under

(9) (3), in Proseribing

Cause annuyanee or alarm, regulates

manner uul means of communication,

the trial vourt to limit the application o

words.”

telephone calls likely to

not the content but the

it was not necessary for

f that statute to “fighting

diseretion in

striking the

testimony to the effect that she

defendant's had been acquitted

* Thus entitled. in view of General Statutes § 54-90.

Reporter of Judicial Decisions

of a criminal charge brought against her Preriousir

Same complainant, it was the defendant who first refe

that other offense and there was no reference to its na

to the facts relating to it.

Information charging the defendant with

orderly conduct and harassment, brought ta

Court of Common Pleas and tried to the jurr:

dict and judgment of guilty and appeal by

defendant. Error in part; new trial,

Davio M. Suea, J. The defendant was f

guilty by a jury of disorderly conduet in Viola

of General Statutes § 53a-182 (a) (2) ane

harrassment in Violation of General Sta

§ 53a-183 (a) (3). She has appealed assig

error in the denial of her motion to set asid

verdict. In this appeal she claims that the ch

to the jury was deficient in that it failed to cire

scribe the language of the two Statutes invo

within the limits required by the first amendn

prohibition against restrictions upon freedo

Speech, and she also claims error in a ruling

evidenee,

From the statements of

appears that the jury could have found! .-

day of the alleged offenses the Compiatuisg vir;

and her friend were traveling to work when ¢

passed the defendant in another car. When the

in which the complainant was riding turned into

facts in the =o"

34 Conn. Sup. €

parking lot of the restaurant where she work

the defendant’s car, which had been following, dre

up close to the complainant, who had by th

emerged from her car, and the defendant shou

from the ear window that the complainant wa

“tramp,” that her mother was a whore and

gone to bed with the defendant’s husband, and th

the defendant was “going to get” the complain

this time. While the defendant was making the

insulting remarks, the complainant and her cor

panion walked toward the restaurant and ente

This incident was the basis for the disorderly eo

duet charge.

On the same evening the defendant telephoned

complainant at the restaurant where she was wo

ing. After the complainant was called to the phon

she heard the defendant repeat substantially th

Same insults as those which had been made earlie

in the parking lot of the restaurant. The ha

ment charge was based upon this telephone call.

The defendant claims that

General Statutes } 53a-182

of her constitutional right

her conviction unde

(a) (2) was a Violation

of free speech beca

Page 8

CONNECTICUT LAW JOURNAL

August 22, 1978

of the overbroad language of the statute, which the

trial court failed to confine within constitutional

limits. The pertinent portion of the statute pro-

vides: “A person is guilty of disorderly conduct

when, with intent to cause inconvenience, annoyance

or alarm, or recklessly creating a risk thereof, he

» + + (2) by offensive or disorderly conduct, annoys

or interferes with another person... .” The

charge gave the jury the statutory definitions of

“intentionally” and “recklessly.”" “Offensive con-

34 Conn. Sup. 692

duet” was deseribed as “conduct which under con-

temporary community standards is so grossly

offensive to a person who actually overhears it or

sees it as to amount to a nuisance.” “Disorderly

conduct” was explained as meaning “such conduct

as outrages the seuse of publie decency” and also

conduct which “must annoy or interfere with

another person.” Standard dictionary definitions

of “annoy” and “interfere” were also given. In

summation, the court stated that “the test, then, of

this statute is what people of common intelligence

and common sense would understand would be

annoyance or interference with another person,

which intentionally causes or has an intention to

cause inconvenience, annoyance, or alarm, or which

recklessly creates a risk of causing inconvenience,

annoyance, or alarm to another person.” In accord-

ance with an exception taken by the defendant at

the conclusion of the charge, the jurors were again

instructed that there had to be a “specific intent of

causing inconvenience, annoyance, or alarm and not

just a general bad intent to do something wrong

to somebody.”

Although she filed no such request to charge and

took no such exception to the charge before the trial

court. the defendant now claims error in the failure

to instruct the jurors that they could not convict

her unless they found that she had uttered “fighting

words” to the victim, as that term is used in Chaplin-

shy v. New Hampshire, 315 U.S. 568, 572. In State

v. Evans, 165 Conn. 61, 70, it was held that a claim

raised for the first time on appeal would be con-

‘General Statutes § 53a-3 provides, in pertinent part, that “(11)

% person acts ‘intentionally’ with respect to a result or to conduct

described by a statute defining an offense when his conscious objective

is to vause such result or to engage in such conduct; ... (13) a

Person acts ‘recklessly’ with respect to a result or to a circumstance

deseribed by a statute defining an offense when he is aware of and

consciously disregards a substantial and unjustifiable risk that such

result will oceur or that such circumstance exists. The risk must

be of such nature and degree that disregarding it constitutes a gross

deviation from the standard of conduct that a reasonable person

would observe in the situation... .”

34 Conn. Sup. 693

sidered where the record adequately demonstrates

that a litigant has clearly been deprived of a funda-

mental constitutional right and a fair trial. The

claim of the defendant in this case that her first

amendment freedoms were violated by the instrue-

tions given to the jury would fall within that rule.

Terminiello v. Chicago, 337 U.S. 1, 3.

In Chaplinsky v. New Hampshire, supra, a statute

(p. 569) which forbade addressing “any offensive,

derisive or annoying word to any other person who

is lawfully in any street or other public place” was

upheld as not infringing upon freedom of speech

because the state court had construed (p. 573) the

broad language of the statute as forbidding no

words except those having “a direct tendency to

cause acts of violence by the persons to whom, indi-

vidually, the remark is addressed.” “*(PJighting’

words — those which by their very utterance intliet

injury or tend to incite an immediate breach of the

peace”—have never been deemed to fall within the

protection of the first amendment. Id., 572: Cant-

well v. Connecticut, 310 U.S. 296, 309. There -

be no question but that the remarks attributea _.

the defendant in this case could reasonably have

been found to constitute “fighting words.” Never-

theless, the defendant may assert her claim of over-

breadth if the statute as explained in the charge

would have permitted her conviction without a

finding by the jury that her utterance had a sub-

stantial tendency to provoke violence on the part

of the complainant. Terminiello y. Chicago, supra,

5. “Although a statute may be neither vague, over-

broad, nor otherwise invalid as applied to the con-

duct charged against a particular defendant, he is

permitted to raise its vagueness or unconstitutional

overbreadth as applied to others. And if the law

is found deficient in one of these respects, it mar

34 Conn. Sup. 694

not be applied to him either, until and unless a

satisfactory limiting construction is placed on the

statute.” Coates v. Cincinnati, 402 U.S. 611, 619-20.

Despite the evident care with which the charge

was framed, we cannot say that it limited the broad

language of the statute to prohibit only those

expressions having a substantial tendency to pro-

voke violent retaliation or other wrongful conduct.

At least where speech in a public place is involved.

an instruction that a conviction may be had for con-

duct which is “so grossly offensive... as to

amount to a nuisance” or which “outrages the sense

of public decency” or which causes “inconvenience,

annoyance, or alarm” exceeds the narrow scope of

August 22, 1978

CONNECTICUT LAW JOURNAL Page 9

permissible restrictions on freedom of speech.

Plummer v. Columbus, 414 U.S. 2 (“menacing,

insulting, slanderous, or profane language”) ; Good-

ing v. Wilson, 405 U.S. 518, 519 (“opprobrious words

or abusive language, tending to cause a breach of

the peace”) ; Coates v. Cincinnati, supra, 611 (“con-

duct themselves in a manner annoying to persons

passing by”); Terminiello v. Chicago, supra, 5 (“if

his speech stirred people to anger, invited public

dispute, or brought about a condition of unrest”).

The state argues that the infirmity of the statute

as construed by the trial court is cured by the

requirement in § 53a-182 (a) (2) of a specific inten-

tion “to cause inconvenience, annoyance or alarm.”

Several of the disorderly conduct statutes deemed

to have been overbroad in the absence of a “fighting

words” limitation have contained similar provisions

necessitating proof of intention as an element of

the crime. Acker v. Tezas, 430 U.S. 962; Chaplinsky

v. Yew Hampshire, 315 U.S. 568, 571-72, affirming

91 N.H. 310; Hansen v. People, 548 P.2d 1278

(Colorado). That feature has not evoked any judi-

cial comment suggesting that the “fighting words”

34 Conn. Sup. 695

restriction may be supplanted by such a provision.

It the prohibition of conduct which “annoys or inter-

feres with another person” is overbroad because it

reaches constitutionally protected speech, that defi-

ciency would not be remedied by requiring a mental

element defined in terms of similar latitude as pro-

vided by j{ 53a-182 (a) (2) (“intent to cause incon-

venience, annoyance or alarm, or recklessly creating

a risk thereof’). In no significant way does the

addition of that element alleviate the inhibiting

effect upon freedom of expression, which is the

essential rationale of the overbreadth doctrine.

Dombrowski v. Pfister, 380 U.S. 479, 486.

. We conclude that the failure of the charge to

limit the application of § 53a-182 (a) (2) to “fight-

ing words” in accordance with Chaplinsky v. New

Hampshire, supra, deprived the defendant of a fun-

damental constitutional right.

The defendant claims that her conviction for

harassment in violation of §53a-183 (a) (3) also

infringed upon her constitutional right to freedom

of speech, The statute, which she claims is over-

broad without some judicial gloss limiting its appli-

cation to “fighting words,” provides in the portion

involved that “{a] person is guilty of harassment

when: ... (3) with intent to harass, annoy or

alarm another person, he makes a telephone call,

whether or not a conversation ensues, in a manner

likely to cause annoyance or alarm.” The charge

provided the jurors with definitions of the words

“harass,” “annoy” and “alarm” and instructed them

that if they found that the defendant had made a

telephone call with the intention to harass, annoy.

or alarm, and that the telephone call did harass,

annoy, or alarm another person, then the defendant

34 Conn. Sup. 696

would be guilty of the offense. No exception was

taken with respect to the deficiency in the charge

now claimed, but we must, nevertheless, consider

the matter to determine whether the record indi-

cates that the defendant has been deprived of a fun-

damental constitutional right. State v. Evans, 165

Conn. 61, 70.

As venerated a place as freedom of spéech may

hold in the constitutional scheme, reasonable regu-

lation of the place and manner of its exercise has

been upheld consistently. Breard v. Alerandria,

341 U.S. 622, 642; Cor v. New Hampshire, 312 U.S.

569, 574. Where the means of communication

involves an intrusion upon privacy, the righ:

free expression must be balanced against the ric...

to be let alone. Rowan v. Post Office Department,

397 U.S. 728, 736. A telephone is not a public forum

where, in vindication of our liberties, unreceptive

listeners need be exposed to the onslaught of repug-

nant ideas. See Lehman v. Shaker Heights, 418

U.S. 298, 302-303. 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 than 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 pur-

poseful harassment by means of a device readily

susceptible to abuse as a constant trespasser upon

our privacy. That words may be the instrument of

annoyance does not insulate such wrongful conduct

from criminal liability. We conclude that it was

not necessary to limit the application of

§ 53a-183 (a) (3) to “fighting words” as claimed br

the defendant.

34 Conn. Sup. 697

iil

The only ruling on evidence claimed as error is

that the court struck out the testimony of the defend-

ant that she had been acquitted of a criminal charge

brought against her previously by the same com-

plainant. The defendant had testitied on direct

Page 10

CONNECTICUT LAW JOURNAL

August 22, 1978

examination that, as the complainant passed by, she

had shouted to the defendant that she had once put

the defendant in jail. In cross-examining the defend-

aut, the prosecutor, referring to the remark attrib-

uted to the comptainant, asked whether there had

been any prior proceeding and whether the defend-

ant telt that she had been treated fairly in that pro-

ceeding by the complainant and her family. After

objections the court allowed a question as to whether

the «lefendant felt that the complaint made in that

proceeding by the complainant and her family had

been fair. She responded negatively. On redirect

exainination of the defendant, after she testified that

she had heen acquitted in the prior proceeding, the

court ordered her answer to be stricken and

instructed the jury to disregard it.

There is some division of authority upon the ques-

tion of whether a defendant may prove that he was

acquitted of a prior crime about which the state

has introduced some evidence. Annot., 86 A.L.R.2d

1132, Ll4+-46; 29 Am. Jur. 2d, Evidence, § 332. In

this state in the trial of an escape charge it was

held that such evidence was of “such slight and

inconsequential relevance that at best it would serve

more to «livert attention from important evidence

than to elucidate vital issues.” State v. Blyden, 165

Conn, 522. 53l. In that case, however, it appears

that the «lefendant had been the first to inquire

about the other offenses and not the state. We do

not regard that case as rejecting the view that the

defendant should be entitled to show that he was

acquitted of another crime to which the state has

first made reference during the trial in order to

34 Conn. Sup. 698

help offset the prejudice whieh the defendant other-

Wise would sutfer. People v. Griffin, 66 Cal.2d 459,

AH: State v. Leahy, 243 Towa 959, 967; Nolan v.

State, 213 Md. 208, 310; State v. Smith, 271 Or. 294,

20); see State v. Segar, 96 Conn. 428, 442; 4 Wig-

more, Evidence (3d Ed.) $1117 (4).

In the present case it was the defendant who first

referred to the other offense in testifying that the

complainant had said she once put her in jail. The

inquiry of the prosecutor on cross-examination

about the prior proceeding was restricted by the

court to ascertaining whether the defendant thought

that the complaint made in that proceeding was

fair, There was no mention of the nature of the

offense or the facts relating to it. The mention of

“jail” came only from the defendant in her direct

testimony and also from one of her witnesses who

testifiel similarly about the remark of the com-

plainant. [n our view, the limited reference to the

other offens» whieh was made by the state did not

materially add to whatever prejudice might pos-

sibly have resulted from the previous testimony. It

was unnecessary, therefore, to allow the defendant

to prove her acquittal as redress for the state's

exploitation of an extraneous issue, and the ruling

of the trial court, which avoided any further reter-

ence to the matter, was a proper exercise of discre-

tion.

There was no error in the conviction of the

defendant for harassment in violation of

§ 53a-183 (a) (3) under the first count of the infor-

mation; there was error in the conviction of the

defendant for disorderly conduct in violation of

§53a-182 (a) (2) under the second count of the

information, the judgment is set aside, and that

count of the information is remanded for a new trial

{In this opinion Parskey and A. Armeytayo, Js.

concurred.

STATE ETHICS COMMISSION

State Ethics Commission advisory Opinions are

published herein pursuant to section 3 (5) of

Public Act 77-605 and/or section 3 (3) of Public

Act 77-600 and are printed exactly us submitted

to the Commission on Official Legal Publications.

Branch or Subdivision of State Government

Advisory opinion number 78-12, dated August 4, 1978,

by order of the State Ethics Commission, Rev. Thomas

J. Lynch, chairman:

A person working for the Capitol Region Council of

Governments has asked the State Ethics Commission

whether she is subject to the provisions of Public Act

Number 77-605. The person’s duties include working

with State administrative agencies, activity which could

meet the definition of “lobbying” in section 1(k) of that

Act. The pro rata value of her compensation for this

portion of her assigned tasks could exeeed the financial

threshold for lobbyists established by section 1(7) of the

Act. Therefore, she may be 4 lobbyist unless she is

exempted by one of the statutory exclusions from that

term.

Her relationship with the Capitol Region Corneil of

Governments is clearly that of an employee. As an

employee of the Council, she would be excluded from

the definition of “lobbyist,” despite any lobbying, if the

Council is “a branch of state government or a sululivision

thereot” and she is acting within the scope of her em.

ployment when she lobbies. Section 1(1)(1), Publie Act

Number 77-605.

The Capitol Region Council of Governments has been

established under sections 4+124i through +124p. Con-

necticut General Statutes. As provided by seetion 4-1241

it is the regional planning ageney. Chapter 127, for the

Capitol planning region and has the rights. duties. and

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.