Utah appeals court strikes down telephone-harassment law

Tuesday, March 28, 2000

Utah’s telephone-harassment law is unconstitutionally overbroad and criminalizes protected speech, a state appeals court recently ruled in reversing the conviction of a man who claimed he was only playing a prank.

Scott Whatcott was convicted by a jury of telephone harassment in 1999 for leaving a “lewd” message on the answering machine of two female acquaintances.

The message stated in part: “I’ve got this boil on my testicle that just keeps oozing … and it’s painful and it’s red. It’s either that or a third testicle.”

Whatcott testified that he was only intending to “play a prank, to have fun, give a joke.”
He testified that one of the women often talked about her infected, oozing toenail, a boil on her breast and other health problems.

The state’s telephone harassment law prohibits making a telephone call “with intent to annoy, alarm another, intimidate, offend, abuse, threaten, harass or frighten any person at the called number or recklessly creating a risk thereof.”

Whatcott argued on appeal that the statute was overbroad and vague.

The appeals court wrote in its March 23 opinion in Provo City v. Whatcott that the state has a “legitimate interest in protecting the public from certain unreasonable telephone calls.”

However, the appeals court agreed with the defendant that the statute was overbroad.

The court wrote that “unwanted telephone solicitations made to a private home during the dinner hour would be prohibited, as those calls surely risk annoying, offending, or harassing the recipients.”

“One could also call a friend, intending to tell a lewd joke and assuming that the friend would not be offended — but nonetheless violate the statute because telling the joke created the reckless risk that the friend would take offense,” the court wrote.

The appeals court concluded that the statute could “prohibit a potentially huge universe of otherwise legitimate telephone calls.”

Free-speech expert Eugene Volokh, a UCLA law professor, said that “though this decision is well-reasoned, other decisions in other states have gone the opposite direction.”

“The facts of this case show the importance of scrutinizing these statutes closely: The incident here seemed to genuinely involve an innocent joke, which was pretty clearly constitutionally protected; but the language of the statute was so broad that even this sort of joke was covered.

The attorneys who handled the case could not be reached for comment.