Ask not for whom the bell tolls - ask why a look at the harassing telephone call statutes.

• Author: Lewis, Mark F.

This article examines the case law in Florida and other jurisdictions in an effort to provide practitioners with suggestions for interpreting the Florida statute.

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.(1)

What was stated above by a federal circuit court in 1980 remains true today. For example, in 1996 almost 600 complaints regarding telephone harassment were received by the state attorney's office for the 13th Judicial Circuit. As these cases come to trial, attorneys for both prosecution and defense realize that there is little guidance provided by case law in Florida. In addition, the division of the statute into four distinct subsections creates further filing and proof problems for prosecutors.

This article will examine the status of the law in Florida, and also will look to the law in other jurisdictions that have similar statutes in an effort to provide practitioners with suggestions for interpreting the various sections of the Florida statute. It will also propose a possible alternative for dealing with some of the problems that have been created by these laws.

Florida's harassing telephone call statute is contained in F.S. [sections] 365.16 (1995). It is modeled almost verbatim after 47 U.S.C. [sections] 223(a). Subsection (1)(a) of the Florida law prohibits the making of "obscene, lewd, lascivious, filthy, vulgar or indecent" telephone calls to a location where the recipient has a "reasonable expectation of privacy." In addition, such a call must be made with the intent to "offend, annoy, abuse, threaten, or harass any person at the called number." The validity of this section of the statute was established by the Supreme Court of Florida in Gilbreath v. State, 650 So. 2d 10 (Fla. 1995); cert. denied, 115 S. Ct. 1966 (1995). In upholding the constitutionality of this section of the law, the court noted that when the legislature added the requirement that the recipient have a reasonable expectation of privacy, it cured the First Amendment defects in the prior law.(2) The Gilbreath court did, however, further restrict the statute by removing the terms "offend" and "annoy" as elements of the criminal intent allowed to sustain such a charge, finding these words to be "indefinite as to meaning and giv[ing] rise to subjective vague connotations." Gilbreath, 650 So. 2d at 13.(3)

Statutes in other jurisdictions have also survived similar challenges. For example, in State v. Lakatos, 900 S.W.2d 699 (Tenn. Crim. App. 1994), a Tennessee court upheld the validity of that state's similar law. Lakatos had impersonated a hospital employee and telephoned a number of women stating that he was conducting a survey about sexual practices. He argued, inter alia, that the statute was unconstitutional since it broadly prohibited calls made "without a legitimate purpose of communication." The court rejected this attack, noting that this phrase was modified by the fact that such a call had to be intentionally and knowingly made for the purpose of annoying or alarming the recipient. Likewise, in South u State, 688 So. 2d 292 (Ala. Crim. App. 1996), the court rejected a challenge based on the argument that the language contained in the calls had to be "fighting words" such as would support a disorderly conduct conviction.(4) The court held that "there is a difference between communication in a public forum and the type which this statute regulates .... No individual whose intention is to annoy, alarm, or harass has the right to impose his ideas on an unwilling listener not in a public forum." South, 688 So. 2d at 295.(5)

Although this first subsection, dealing with the often murky area of obscenity, would at first appear to be the most troublesome, the other sections have raised more issues that have given rise to attacks based on considerations other than constitutionality. Subsection (b) proscribes the making of "a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to annoy, abuse, threaten, or harass any person at the called number." F.S. [sections] 365.16(1)(b) (1995).

Similar to subsection (1)(a), this part of the statute requires the making of only one call. The legislative intent behind this subsection is discussed in US. v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972), a case dealing with the identical wording of the federal statute. In discussing the degree of intent required to obtain a conviction under this subsection the court stated that "[t]he anonymity is in itself a circumstance raising discomfort and fear in the receiver of the call, and Congress decided that virtually any wilfully bad motive in making an anonymous phone call should be punishable." Id. at 313.

Note that the Darsey court has equated the term "without disclosing his or her identity" with the word .anonymous." Seemingly, then, even if the identity of the caller is obvious--an ex-spouse, estranged lover, former business partner--one call would suffice as long as the caller did not identify himself. The case law is virtually nonexistent on this question. In McKillop v. State, 857 P.2d 358 (Alaska Ct. App. 1993), the defendant had made a number of anonymous calls to the Anchorage Abused Women's Shelter. Although he did not give his name, he did disclose his phone number and told the recipient the number of his motel room. In affirming his conviction, the court rejected McKillop's claim that the element of anonymity could be proved only if the caller had...