IN RE: Carolyn ELIAS (1988)

A jury found petitioner Carolyn Elias guilty of two counts of making telephone calls with the intent to annoy without disclosing her true identity in violation of Penal Code section 653m, subdivision (b).   The imposition of sentence was suspended and petitioner was placed on 36 months formal probation on the condition that she serve 66 days in county jail and pay a fine of $1,000.   The conviction was affirmed by the appellate department of the superior court, which denied certification to this court.   Petitioner now seeks our issuance of a writ of habeas corpus.   Real party in interest State of California (hereafter real party) filed a return in which it seeks to support petitioner's conviction.   Real party in interest Sheriff of Los Angeles County filed a return in which it takes “no position with regards to the validity” of petitioner's conviction.

Since petitioner's contentions do not revolve around the facts of this particular case it is sufficient to note that petitioner was charged and convicted of making numerous “hang-up” calls to the residence of her ex-boyfriend between August 15, 1984, and August 27, 1985, with the intent to annoy her ex-boyfriend and his wife.   A telephone “trap-trace” linked several of the hang-up calls to petitioner's home telephone and her place of employment.   Petitioner admitted making several hang-up calls in December of 1985, but denied making the rest.

CONTENTIONS

Petitioner raises the following contentions:

“In prohibiting only annoying telephone calls that are anonymous, and sweeping within its purview constitutionally protected forms of speech, Penal Code § 653m(b) suffers from overbreadth that cannot be justified by any legitimate state interest nor cured by judicial construction[;]

“The statutory terms ‘intent to annoy’ and ‘failure to disclose’ lack the requisite definiteness and certainty to withstand petitioner's vagueness claim or satisfy due process requirements[;  and]

“Petitioner's conviction and incarceration as a condition of probation were unconstitutional because of their chilling effect on First Amendment activity.”

DISCUSSION

Petitioner first levels a facial attack on the constitutionality of Penal Code section 653m, subdivision (b) contending that it is overbroad and therefore violative of her right to engage in free speech under the First Amendment of the United States Constitution and article I, section 2 of the California Constitution.   We agree.¹

Section 653m, subdivision (b) provides:  “Every person who makes a telephone call with intent to annoy another and without disclosing his true identity to the person answering the telephone is, whether or not conversation ensues from making the telephone call, guilty of a misdemeanor.”

 Initially, we reject real party's claim that no free speech rights are implicated by the subject statute because it regulates the conduct of using the telephone rather than speech.  “The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression.   To take the position that the right of free speech consists merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely.   The right to speak freely must encompass inherently the right to communicate.”   (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 379 P.2d 481.)   The telephone is a “device by which articulate speech could be electrically transmitted or received between different points, more or less distant from each other, ․”  (Richmond v. Southern Bell Telephone Co. (1898) 174 U.S. 761, 775, 19 S.Ct. 778, 783, 43 L.Ed. 1162.)   Thus, use of the telephone as a means for disseminating speech is entitled to First Amendment protection.

Real party's reliance on In re Bushman (1970) 1 Cal.3d 767, 773, 83 Cal.Rptr. 375, 463 P.2d 727, disapproved on other grounds People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, fn. 1, to the contrary, is misplaced.   In Bushman, the court sustained defendant's conviction for dumping debris from an airport runway onto the desk of a member of the airport board to convey his dissatisfaction with the condition of the runway.   The Bushman court rejected defendant's contention that “his actions were a form of ‘symbolic speech’ protected by the First Amendment.”   The court reasoned:  “Not all acts intended to express ideas or convey information are protected forms of free speech.”   In the present case, however, we are not concerned with whether a symbolic act falls within the category of speech.   Instead, the subject statute places limitations on one of the principal tools for communication in today's society.   As explained above, such restrictions fall squarely within the ambit of free speech protections.

We now turn to petitioner's overbreadth challenge.

“A law's overbreadth represents the failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with the result that in some applications the law burdens activity which does not raise a sufficiently high probability of harm to governmental interests to justify the interference.”  (The Overbreadth Doctrine (1970) 83 Harv.L.Rev. 844, 887.)

 The claim that a statute is overbroad is an exception to the rule that courts evaluate the propriety of a statute only in relation to the particular facts of the case before it.   As explained in Brockett v. Spokane Arcades, Inc. (1984) 472 U.S. 491, 503, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394:  “[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.   If the overbreadth is ‘substantial,’ the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity, whether by legislative action or by judicial construction or partial invalidation.”  (Fn. omitted.)

“Criminal statutes[, such as the one involved here,] must be scrutinized with particular care, [citation];  those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.  [Citation.]”  (Houston v. Hill (1987) 482 U.S. 451, ––––, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, 410;  italics added.)

 The subject section criminalizes telephone calls which are (1) made with “the intent to annoy” and (2) made without “disclosing [the caller's] true identity.”   As we now explain, neither facet narrows the scope of the statute to sufficiently limit its application to unprotected speech.

First, calls made with the intent to annoy potentially include a broad range of constitutionally protected communications.   Webster's defines annoy to mean:  “To irritate with a nettling or exasperating effect especially by being a continuous or repeatedly renewed source of vexation.”

Merely because speech is annoying or irritating to the hearer does not strip it of First Amendment protection.  (Coates v. City of Cincinnati (1970) 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 [holding unconstitutional a statute making it a criminal offense for “ ‘three or more persons to assemble ․ on any of the sidewalks ․ and there conduct themselves in a manner annoying to persons passing by ․,’ ”];  see Gooding v. Wilson (1971) 405 U.S. 518, 527, 92 S.Ct. 1103, 1108, 31 L.Ed.2d 408 [the section under review makes it a “ ‘breach of peace’ merely to speak words offensive to some who hear them, and so sweeps too broadly.”].)

As Justice Black explained in Terminiello v. Chicago (1948) 337 U.S. 1, 4–5, 69 S.Ct. 894, 896, 93 L.Ed. 1131:

“[A] function of free speech under our system of government is to invite dispute.   It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.   Speech is often provocative and challenging.   It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.   That is why freedom of speech, though not absolute, [citation], 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 public inconvenience, annoyance, or unrest.  [Citation.]  There is no room under our Constitution for a more restrictive view.   For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”  (Italics added.)

Of course, an individual does not have an absolute right to annoy another through speech anytime, anywhere.   Instead, in certain limited particular settings the state can legitimately afford individuals a shield to deflect annoying communications which are otherwise constitutionally protected.   For example, in Rowan v. Post Office Dept. (1969) 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736, the court upheld the constitutionality of a statute under which a person can require a mailer to remove his name from its mailing list and stop all further mailings to the householder when the addressee “ ‘in his sole discretion believes [mailings he had received] to be erotically arousing or sexually provocative.’ ”  (Id., at p. 730, 90 S.Ct. at p. 1487.)

The court explained:  “We ․ categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another.   If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even ‘good’ ideas on an unwilling recipient.   That we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere.  [Citations.]  The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain.”  (397 U.S. at p. 738, 90 S.Ct. at p. 1491.)

Similarly in FCC v. Pacific Foundation (1977) 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, rehearing denied 439 U.S. 883, 99 S.Ct. 227, 58 L.Ed.2d 198, the court concluded that “patently offensive sexual and excretory language” which in some context might be afforded constitutional protection could properly be banned from daytime radio broadcast.  (Id., at p. 747, 98 S.Ct. at p. 3039.)

The court based this conclusion in part on the fact that “[p]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.”  (438 U.S. at p. 748, 98 S.Ct. at p. 3040.)

The ability of government to limit speech to protect the privacy interest of the listener is, however, not unlimited.   As stated in Cohen v. California (1971) 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284, rehearing denied 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124:

“While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, [citation], we have at the same time consistently stressed that ‘we are often “captives” outside the sanctuary of the home and subject to objectionable speech.’  [Citation.]  The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ․ dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.   Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”

Thus, the setting in which the unwanted speech occurs must be viewed in evaluating whether that speech is constitutionally protected.

In the setting of telephone calls, the state unquestionably has a legitimate interest in shielding individuals from particular phone usage.   For example, no individual should be forced to endure the disruption to his or her tranquillity caused by repeated late night hang-up calls.²  This state could undoubtedly pass a legitimate specific statute proscribing repeated late night hang-up calls made with the intent to annoy.

Subdivision (b) of Penal Code section 653m, however, goes well beyond what the state could properly proscribe.   Constitutionally protected communications which are swept within the ambit of this section include telephone calls by disgruntled consumers to vendors seeking to vent their anger at the latter caused by the customer's purchase of a defective product, aggravated unidentified tenants informing their landlord they are fed up with their intolerable living conditions and notifying the latter that they are going to the authorities, and irritated constituents voicing displeasure with the performance of their elected representative.

As reflected by these examples the subject statute is not restricted to residential telephone calls or other locales where the recipient has an enhanced privacy interest, nor is it restricted to certain time periods of the day or night.   Thus, this overbroad statute treats a telephone call made midday to the complaint department of a large retail store identically with a telephone call made to a private residence at 3 a.m.   Accordingly, residential privacy interest is not alone sufficient to justify the statute's broad terms.

The suggestion in the dissent that “in the unlikely event a prosecutor were foolish enough to file a criminal charge pursuant to Penal Code section 653m, subdivision (b), in one of these hypothetical situations, the statute could be attacked as applied to such allegedly protected activity” is troubling.  (Dissenting opn., post, at p. 357.)   The portion of Broadrick v. Oklahoma (1972) 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, which the dissent urges in supposed support of this reasoning concerns only a vagueness challenge to a statute rather than an overbreadth challenge which is the nature of the challenge before us here.

While a defendant could not successfully challenge a statute as unduly vague unless his conduct falls within “the ‘hard core’ of the statute's proscriptions” (Broadrick v. Oklahoma, supra, 413 U.S. 601, 608, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830) the same is not true of an overbreadth challenge.   As explained in Broadrick:  “[T]he Court has altered its traditional rules of standing to permit—in the First Amendment area—‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’  [Citation.]  Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”  (Id., at p. 612, 93 S.Ct. at p. 2916, italics added.)

The suggestion in the dissent that overbroad applications of a statute could be reviewed on a case-by-case basis would thus emasculate the very purpose of the overbreadth doctrine.   It is self-evident that no case-by-case review is possible where an individual has refrained from engaging in constitutionally protected speech or expression due to a statute's existence since such a case would never reach court.

Furthermore, contrary to the implication of the dissent, we do not hold that an individual has a First Amendment right to use the telephone anytime, anywhere and for any purpose.  (Dissenting opn., post, at pp. 357–58.)   Of course, the state is entitled to impose reasonable regulations on telephone usage.   We hold only that since the telephone is a principal tool for disseminating speech, regulation of its use must not run afoul of the First Amendment.   Any such regulation, however, must be narrowly tailored so that it does not proscribe a substantial amount of protected speech.   The statute before us fails to meet this test.   The mere fact that the dissent is able to envision legitimate telephone usages which are proscribed by the subject statute (dissenting opn., post, at pp. 358–59) does not alter the fact that a substantial amount of speech entitled to First Amendment protection is also covered by the statute's overbroad terms.

Moreover, contrary to real party's suggestion, the subject section's limitation to telephone calls in which the caller fails to disclose his true identity does not sufficiently tailor its target to unprotected speech.   To the contrary, this disclosure requirement serves to exacerbate the statute's constitutional infirmity.

In Huntley v. Public Util. Com. (1968) 69 Cal.2d 67, 69 Cal.Rptr. 605, 442 F.2d 685, the court struck down as unconstitutional a tariff of Pacific Telephone and Telegraph requiring subscribers who transmit recorded messages over its facilities to include in the recording the name of the individual or organization for the message and the address at which the service is rendered.   In terms directly applicable to the present case, the court explained:  “[A]nonymity may be an indispensable prerequisite to speech.   When the context of speech may lead to harassment or reprisal, fear or apprehension may deter expression in the first instance.   History is replete with unpopular ideas which now form the foundation of modern society's mores and laws, but which could only be asserted anonymously when first expressed.”  (Id., at p. 73, 69 Cal.Rptr. 605, 442 P.2d 685.)

In urging that the subject statute is not overbroad, real party relies heavily on numerous cases from other jurisdictions, particularly State v. Elder (Fla.1980) 382 So.2d 687, 691.   In Elder, the court upheld the constitutionality of the Florida telephone harassment statute.   Unlike the present statute, however, the Florida statute provided that “[n]othing contained in this section shall apply to telephone calls made in good faith in the ordinary course of business or commerce.”  (Id., at p. 691, fn. 6.)   Based upon this limitation, the Elder court was able to conclude that the “improper intent [to annoy, abuse, threaten or harass] must be the motivating factor in the caller's telephoning another person and the call must not serve a legitimate communicative or informative function.”  (Id., at p. 691.)

As we have explained, subdivision (b) is not so limited.   Rather it proscribes telephone calls which may or may not have a legitimate communicative or informative function.   Moreover, the unambiguously broad terms of section 653m, subdivision (b), prevent us from narrowly construing it to proscribe only unprotected speech.  (See In re Lance W. (1985) 37 Cal.3d 873, 886, 210 Cal.Rptr. 631, 694 P.2d 744 [“ ‘ “[w]hen statutory language is ․ clear and unambiguous there is no need for construction, and courts should not indulge in it.” ’ ”] )  Thus real party's reliance on Elder is misplaced.³

Finally, we reject real party's attempt to support the constitutional nature of the subject section by urging that “[r]easonable restrictions may be placed on access to a private forum.”   While this is a correct statement of the law, it has no application to the case at bench.   That rule is part of the analysis employed when a court evaluates the propriety of a speech restriction on public property.   As the Supreme Court recently explained in Airport Comm'rs v. Jews For Jesus, Inc. (1987) 482 U.S. 569, ––––, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500, 506:

“In balancing the government's interest in limiting the use of its property against the interests of those who wish to use the property for expressive activity, the Court has identified three types of fora:  the traditional public forum, the public forum created by government designation, and the nonpublic forum.  [Citation.]  The proper First Amendment analysis differs depending on whether the area in question falls in one category rather than another.   In a traditional public forum or a public forum by government designation, we have held that First Amendment protections are subject to heightened scrutiny:

“ ‘[¶] ․ ’

“We have further held, however, that access to a nonpublic forum may be restricted by government regulation as long as the regulation ‘is reasonable and not an effort to suppress expression merely because officials oppose the speaker's view.’  Id., [460 U.S. 37] at 46, 74 L.Ed.2d 794, 103 S.Ct. 948 [955].”

Every case relied on by real party in its discussion of this issue concerns restrictions placed on government controlled property.  (E.g., Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 [upholding restrictions on solicitation of charitable contributions in federal government offices];  Frisby v. Schultz (1988) 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 [upholding ordinance making it “ ‘unlawful for any person to engage in picketing before or about the residence or dwelling of any individual․’ ”  (Id., at ––––, 108 S.Ct. at 2498, 101 L.Ed.2d at pp. 426–427.) ];  U.S. Postal Service v. Greenburgh Civic Assns. (1981) 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 [upholding statute prohibiting the placing of unstamped material in the letterboxes of private homes.   Court analysis basis for government control of letter boxes and concludes “it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated [a] military base [citation] [a] jail or prison [citations] or ․ advertising space ․ in city rapid transit cars”];  Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 [upholding prohibition of political advertising on publicly owned and operated street cars];  Perry Ed. Assn. v. Perry Local Educators' Assn. (1982) 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 [upholding restriction on internal mail system of public schools].)

In the present case, the subject statute is not limited to restricting speech on public property.   Rather, as explained above, the statute purports to restrict telephone transmitted speech regardless of whether that speech emanates from or is directed to public property.   In this setting the public forum-private forum distinction is of no assistance in evaluating the statute's constitutionality.

We, therefore, conclude that Penal Code section 653m, subdivision (b) is overbroad under the First Amendment of the United States Constitution and under article I, section 2 of the California Constitution.⁴  Accordingly, petitioner's conviction which was solely for violation of that statute must be reversed.   Petitioner's request for a writ of habeas corpus is granted.

I dissent.

The majority sets aside petitioner's conviction, holding that “Penal Code section 653m, subdivision (b) is unconstitutionally overbroad” “under the First Amendment of the United States Constitution and under article I, section 2 of the California Constitution.” ¹  (Majority opn., ante, p. 355 and fn. 4.)   The foregoing statutory provision reads:  “Every person who makes a telephone call with intent to annoy another and without disclosing his true identity to the person answering the telephone is, whether or not conversation ensues from making the telephone call, guilty of a misdemeanor.” ²

I agree with the majority that section 653m, subdivision (b), is not unconstitutional as applied to appellant's conduct, and also agree that it is possible to imagine applications of the statutory provision that would violate the right to freedom of speech.   The issue on which we differ is whether the likelihood of improper applications of section 653m, subdivision (b), is sufficiently substantial to render the statute facially invalid.   Additionally, in my opinion, the majority gives too little weight to the privacy rights of unwilling listeners and to the state's well-established right to enact reasonable restrictions on the place and manner of protected expression.

As explained below, it appears highly improbable that the hypothetical situations relied upon by the majority ever would result in criminal prosecution or that enforcement of the statute would inhibit the exercise of First Amendment rights under any circumstances.   I believe the facts of this case provide a more realistic illustration of the type of acts section 653m, subdivision (b), was designed to prohibit and which actually are likely to lead to the filing of criminal charges.

According to the evidence introduced by the prosecution, petitioner and James Weathers shared an intimate relationship for a nearly two-year period ending in January 1985.   They remained friends, speaking on the telephone at least once each day, until May of 1985, when Weathers met Vicki Johnson, whom he later married.   After Weathers met Johnson, petitioner began calling Weathers several times a day.   In June or July of 1985 Weathers asked that petitioner call less frequently.

In July 1985, Weathers began receiving telephone calls at his house from a caller who would hang up without saying anything.   From July to November of that year, Weathers received five or six such calls daily at all times of the day and night.   In November, Weathers authorized the telephone company to install a “trap-trace” to determine the origin of the telephone calls.   A log kept by Weathers reflected his receipt of 68 “hang-up” calls during the 22–day period ending December 12, 1985.   Several of these calls were traced to the telephone located at petitioner's residence, and others originated from a telephone at petitioner's workplace to which petitioner and others had access.   Three of the calls from petitioner's home were placed within a period of one minute;  eight of the calls from petitioner's workplace were made within a five-minute period.

The rule that “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court,” has been relaxed when significant restrictions on freedom of speech are involved, because “the First Amendment needs breathing space.”  (Broadrick v. Oklahoma (1973) 413 U.S. 601, 610, 611, 93 S.Ct. 2908, 2915, 2915, 37 L.Ed.2d 830.)   But in Broadrick, the United States Supreme Court emphasized that “the plain import of our cases is, at the very least, that facial 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․  To put the matter another way, particularly where 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 relation to the statute's plainly legitimate sweep.”  (Id., at p. 615, 93 S.Ct. at p. 2917, emphasis added.)

The decision in Broadrick also recognized that “overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner.”  (Id., at p. 614, 93 S.Ct. at p. 2917, emphasis added.)  Broadrick upheld a statute which restricted the political activities of civil servants.   The high court noted that the statute was “not a censorial statute, directed at particular groups or viewpoints․  [It] regulates a substantial spectrum of conduct that is ․ manifestly subject to state regulation․”  (Id., at p. 616, 93 S.Ct. at p. 2918.)   Prior interpretation of the statute by the state, applying its provisions to the wearing of political buttons and the displaying of bumper stickers, was deemed an insufficient basis upon which to invalidate the statute:  “It may be that such restrictions are impermissible and that [the statutory provision] may be susceptible of some other improper applications.   But, as presently construed, we do not believe that [the statute] must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute.  [The statute] is not substantially overbroad and is not, therefore, unconstitutional on its face.”  (Id., at p. 618, 93 S.Ct. at p. 2919.)

I have conceptual difficulty in viewing petitioner's telephone calls to the victim as attempts at speech or communication in any form.   Like the statute in Broadrick, section 653m, subdivision (b), forbids conduct rather than pure speech and does so in a neutral, noncensorial manner.  Section 653m, subdivision (b), is not directed at particular groups or viewpoints.   It regulates a substantial spectrum of conduct that is manifestly subject to state regulation:  telephone calls made with the intent to annoy another, such as repeated “hang-up” calls, calls in which the caller remains silent, calls in the dead of night, and excessively repetitious calls of any nature.

The following three hypothetical situations are posed by the majority as examples of prosecutions under section 653m, subdivision (b), which would be impermissible under First Amendment standards:  that of the disgruntled consumer who telephones a vendor to complain of a defective product, the aggravated tenant who telephones the landlord to declare that a complaint has been filed with governmental authorities, and the irritated constituent who telephonically voices displeasure with the performance of an elected representative.  (Majority opn., ante, p. 352.)

Even if it is assumed the hypothetical prosecutions discussed by the majority would encroach upon the protections afforded by the First Amendment, “the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”  (City Council v. Taxpayers For Vincent (1984) 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772.)   Instead, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.”   (Id., at p. 801, 104 S.Ct. at p. 2126, emphasis added.)

Any concerns evoked by the three hypotheticals are dispelled by practical examination of the theoretical prosecutions suggested by the majority.   In the usual case involving the telephonic complaint of a disgruntled consumer, the statute would not apply because such a call would not be anonymous.   The consumer could not obtain redress, by way of refund, repair, or exchange, without identifying himself or herself.   The aggravated tenant and the irritated constituent might be callers who desire to remain anonymous, but (apart from other considerations) it would be highly unlikely that a single telephone call from such a person would result in a criminal prosecution because of the near-impossibility of determining the identity of the anonymous caller in the absence of multiple calls.   If numerous calls are involved, the telephonic communications would not necessarily enjoy constitutional protection.   Although an anonymous telephone call to a landlord or elected official may come within the protection of the First Amendment, that constitutional safeguard would not, for example, immunize the caller from prosecution for 50 such calls per hour.

Moreover, the transparency of the majority's conjurations becomes evident upon the realization that in the unlikely event a prosecutor were foolish enough to file a criminal charge pursuant to section 653m, subdivision (b), in one of these hypothetical situations, the statute could be attacked as applied to such allegedly protected conduct, since we are not faced with substantial overbreadth.  “[T]he statement of Mr. Justice Holmes is particularly appropriate:  ‘if there is any difficulty ․ it will be time enough to consider it when raised by someone whom it concerns.’  United States v. Wurzbach [(1930) 280 U.S. 396] at 399 [50 S.Ct. 167 at 169, 74 L.Ed. 508].”  (Broadrick v. Oklahoma, supra, 413 U.S. 601, 609, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830.)

As recently observed by our Supreme Court, “[i]t is the duty of this court in construing a statute to ascertain and give effect to the intent of the Legislature.  [Citations.]  And it is fundamental that the Legislature will not be presumed to intend unconstitutional results.  [Citations.]  ‘[W]here “ ‘the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.’ ”  [Citations.]'  (People v. Davenport (1985) 41 Cal.3d 247, 264 [221 Cal.Rptr. 794, 710 P.2d 861] ․;  accord:  United States v. Delaware & Hudson Co. (1909) 213 U.S. 366, 407–408 [29 S.Ct. 527, 535, 53 L.Ed. 836] ․)”  (People v. Freeman (1988) 46 Cal.3d 419, 425, 250 Cal.Rptr. 598, 758 P.2d 1128.)

The hypothetical examples invoked by the majority must be viewed in light of the holding in Broadrick that even the potential application of the statute there in question to such common and easily prosecuted activity as wearing political buttons and displaying bumper stickers was not a sufficient basis upon which to invalidate the statute in light of its legitimately broad reach.   As stated by the high court:  “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.”   (Broadrick v. Oklahoma, supra, 413 U.S. 601, 610, 615, 93 S.Ct. 2908, 2915, 2917, 37 L.Ed.2d 830, emphasis added.)

The majority opinion also fails to give sufficient consideration to the effect that improper use of the telephone has upon the rights of unwilling listeners.   While the use of a telephone does not render the First Amendment automatically inapplicable, the majority appears to hold that the use of a telephone is entitled to the same level of protection as natural speech in a traditional public forum.   The majority reasons that because the right to free speech is worthless in the absence of a meaningful method of expression, and the telephone is a means of expression, “use of the telephone as a means for disseminating speech is entitled to First Amendment protection.”  (Majority opn., ante, p. 349.)   This statement runs afoul of the well-established line of cases holding that the means of disseminating speech may be subject to reasonable regulation.   For example, a statute may provide that speech not be disseminated by the use of sound trucks that emit “loud and raucous noises.”   (Kovacs v. Cooper (1949) 336 U.S. 77, 78, 69 S.Ct. 448, 441, 93 L.Ed. 513.)

The opinion by Justice Reed announcing the judgment of the court in Kovacs differentiated between traditional methods of communication and intrusive means of disseminating ideas:  “The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it.  [Fn. omitted.]  In his home or on the street he is practically helpless to escape this interference with his privacy․”  (336 U.S. at pp. 86–87, 69 S.Ct. at p. 453.)   In a concurring opinion, Justice Frankfurter rejected reasoning identical to that employed by the majority in the present case:  “It is argued that the Constitution protects freedom of speech:  freedom of speech means the right to communicate, whatever the physical means for so doing;  sound trucks are one form of communication;  ergo that form is entitled to the same protection as any other means of communication, whether by tongue or pen․  [¶] Only a disregard of vital differences between natural speech, even of the loudest spellbinders, and the noise of sound trucks would give sound trucks the constitutional rights accorded to the unaided human voice.”  (Id., at p. 96, 69 S.Ct. at p. 458.)

Similarly, Rowan v. Post Office Dept. (1970) 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 reviewed a federal regulation that allowed persons to prevent home mail delivery of certain types of material.   This restriction of the right to use the mail as a means of communication was upheld because “the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate.”  (Id., at p. 736, 90 S.Ct. at p. 1490.)

The telephone, when used for the express purpose of annoying a person, is a far more potent weapon for the invasion of an unwilling listener's privacy than a sound truck or a letter sent through the mail.   The intrusion perpetrated by a telephone that rings incessantly, and when answered brings only silence or a disconnection, is unique because it can occur within the sanctity of the home at any hour of the day or night.   The only protection available to the victim is to disconnect the telephone, thus preventing the telephone subscriber from receiving desired calls which possibly may be of great importance.   The vice of this unique form of invasion of domestic privacy cannot be questioned.

The effect of such calls on commercial establishments, although involving different considerations, may be no less severe.   The telephone is the lifeline of many businesses, the single most important tool of commerce.   Intentionally flooding the telephone line of a business with annoying calls can cause it substantial loss of revenue;  such harassment could drive a small concern out of business.   The interest of the state in preventing misuse of the telephone is exceedingly strong, whether the receiving end of the abuse be commercial or residential.

The state's right to regulate the time, place, and manner of protected expression has been recognized in many contexts.   For example, such regulation may take the form of prohibiting political advertisements on public transportation, because a political advertiser has “no right to force his message upon an audience incapable of declining to receive it.”  (Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 307, 94 S.Ct. 2714, 2719, 41 L.Ed.2d 770, Douglas, J., concurring.)   The posting of political signs on public property may be forbidden “to advance esthetic values.”   (City Council v. Taxpayers For Vincent, supra, 466 U.S. 789, 805, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772.)

The right to convey a message does not imply an unlimited right to deliver that message in a manner that infringes upon the rights of unwilling recipients.   In the context of the abusive use of the telephone perpetrated by petitioner, her invocation of the right of freedom of speech is the electronic equivalent of delivering a message wrapped around a rock and thrown through the plate glass window of the victim's home, evoking Marshall McLuhan's observation that “the medium is the message.” ³  Petitioner's claim that her “convictions were based on constitutionally protected conduct” attempts a perversion of First Amendment principles as flagrant as a defendant-protester's use of a placard to assault a law enforcement officer assigned to crowd control at a political demonstration.  (See People v. King (1968) 267 Cal.App.2d 814, 818–819, 826, 73 Cal.Rptr. 440, cert. den. 396 U.S. 1028, 90 S.Ct. 576, 24 L.Ed.2d 524.)

Section 653m is content-neutral and leaves ample alternative means for communication.   The telephone may be used to deliver any message that is not obscene or physically threatening (§ 653m, subd. (a)), provided the caller discloses his or her true identity.   Even anonymous calls are permitted, provided the caller's intent is not to annoy the victim.  (§ 653m, subd. (b).)  Although the majority opinion demonstrates the possibility of conjuring up isolated applications of the statute that would infringe upon First Amendment rights, such hypothetical concerns are insufficient to disenfranchise the people of this state from enacting, through their elected representatives, the protection of their “inalienable” constitutional right of privacy (Cal.Const., art. I, § 1) afforded by section 653m, subdivision (b).

I would uphold the constitutionality of section 653m, subdivision (b), and deny the writ of habeas corpus.

FOOTNOTES

1.   Freedom of speech under the First Amendment is made applicable to the states by the Fourteenth Amendment.  (Near v. Minnesota (1931) 283 U.S. 697, 707, 51 S.Ct. 625, 628, 75 L.Ed. 1357.)Article I, section 2 of the California Constitution provides in pertinent part:“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press”  This provision is “more definitive and inclusive than the First Amendment․”  (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116.)   Accordingly, although we primarily employ cases construing the First Amendment, we conclude that those authorities establish the subject statute is unconstitutional under the broader provision of the California Constitution as well.

2.   A host of other intolerable telephone usages are proscribed by section 653m, subdivision (a) of the Penal Code which provides:  “Every person who with intent to annoy telephones another and addresses to or about such other person any obscene language or addresses to such other person any threat to inflict injury to the person or property of the person addressed or any member of his family, is guilty of a misdemeanor.”   Petitioner was neither charged with, nor convicted of violating this subdivision.

3.   In addition to Elder, numerous federal and sister state cases have considered the constitutionality of telephone harassment statutes.   For example:  Cases holding telephone harassment statute not unconstitutionally overbroad:  Collection Consultants, Inc. v. State (Tex.App.1977) 556 S.W.2d 787, 793–794, appeal dismissed 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 399, rehearing denied 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150;  Donley v. City of Mountain Brook (Ala.Cr.App.1982) 429 So.2d 603;  In re Simmons (N.C.App.1974) 210 S.E.2d 84;  People v. Smith (1977) 89 Misc.2d 789, 392 N.Y.S.2d 968, 971, certiorari denied 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276;  State v. Anonymous (1970) 34 Conn.Supp. 689, 389 A.2d 1270;  Gormley v. Dir. Conn. State Dept. of Prob. (2d Cir.1980) 632 F.2d 938, certiorari denied 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 [habeas petition in same case as State v. Anonymous, supra, construing Connecticut statute];  State v. Elder, supra, 382 So.2d 687;  People v. Taravella (1984) 133 Mich.App. 515, 350 N.W.2d 780;  State v. Hagen (1976) 27 Ariz.App. 722, 558 P.2d 750;  State v. Thorne (W.Va.1985) 333 S.E.2d 817, 819, certiorari denied 474 U.S. 996, 106 S.Ct. 413, 88 L.Ed.2d 363;  State v. Thompson (1985) 237 Kan. 562, 701 P.2d 694;  United States v. Lampley (3d Cir.1978) 573 F.2d 783 [construing federal statute].  Cases holding telephone harassment statute unconstitutionally overbroad:  City of Everett v. Moore (1984) 37 Wash.App. 862, 683 P.2d 617, 619;  Bolles v. People (1975) 189 Colo. 394, 541 P.2d 80 [as applied to mail];  People v. Klick (1977) 66 Ill.2d 269, 5 Ill.Dec. 858, 860–61, 362 N.E.2d 329, 331–332;  State v. Dronso (1981) 90 Wis.2d 110, 279 N.W.2d 710;  Walker v. Dillard (4th Cir.1975) 523 F.2d 3, certiorari denied 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 [construing West Virginia statute];  Radford v. Webb (W.D.N.C.1978) 446 F.Supp. 608, affirmed 596 F.2d 1205 [construing North Carolina statute].Petitioner relies heavily on several of these cases overturning telephone harassment statutes while seeking to distinguish the cases upholding their validity.   Real party does just the opposite.   While the court has read and considered the opinions in these cases, we will not attempt to reconcile their contrary holdings.   Nor will we resort to an exercise in semantics by attempting to discern which statutes are similar to the statute here involved and which are not.   Instead, we have independently evaluated the constitutionality of the subject statute in reaching our conclusion.

4.   Because we conclude Penal Code section 653m, subdivision (b) is unconstitutionally overbroad we, need not, and therefore, do not, reach petitioner's vagueness challenge and her claim that her sentence constitutes cruel or unusual punishment.

1.   All further statutory references are to the Penal Code.   References herein to the First Amendment to the federal Constitution also encompass its “more definitive and inclusive” counterpart in the state Constitution.  (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116.)

2.   Subdivision (a) of the statute, not in issue in the present appeal, proscribes the making of obscene or physically threatening telephone calls.

3.   McLuhan, Understanding Media (1964).

McCLOSKY, Associate Justice.

ARLEIGH M. WOODS, P.J., concur.