State v. Brobst
857 A.2d 1253, 2004 N.H. LEXIS 163, 151 N.H. 420 (2004)
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Rule of Law:
A statute that criminalizes making a telephone call with the sole purpose to annoy or alarm another is unconstitutionally overbroad because it prohibits a substantial amount of constitutionally protected speech.
Facts:
- On December 29, 2002, Michael B. Brobst made a series of telephone calls to a house where the victim was present.
- The victim was caring for her younger siblings at the time of the calls.
- On his sixth and final call, Brobst allegedly spoke to the victim.
- Brobst allegedly told the victim, "[Y]ou’re a f---ing bitch and you’re going to be a slut just like your mother."
Procedural Posture:
- The State charged Michael B. Brobst with harassment under RSA 644:4, 1(a).
- In the Superior Court (trial court), Brobst filed a motion to dismiss, arguing the statute was unconstitutionally overbroad and vague.
- The Superior Court granted the motion to dismiss, finding the statute was facially overbroad.
- The State (appellant) appealed the trial court's dismissal of the charge to the Supreme Court of New Hampshire.
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Issue:
Does a state statute that makes it a crime to make a telephone call with the purpose to annoy or alarm another violate the free speech protections of the New Hampshire Constitution because it is unconstitutionally overbroad?
Opinions:
Majority - Dalianis, J.
Yes. A statute criminalizing any telephone call made with the purpose to annoy or alarm another is facially overbroad and violates the New Hampshire Constitution. The court reasoned that the statute sweeps too broadly, criminalizing a substantial amount of constitutionally protected speech alongside unprotected harassment. The court cited examples of legitimate speech that could be prosecuted under the statute, such as a consumer calling to complain about a product, a citizen calling a public official to express dissatisfaction, or a neighbor calling to warn of an approaching tornado. The court adopted the reasoning of the Illinois Supreme Court in People v. Klick, which held that making the call itself the criminal act, based only on an intent to annoy, impermissibly infringes on the right to communicate. While the State has a legitimate interest in protecting citizens from threatening or obscene calls, this statute was not narrowly tailored to that interest and could chill legitimate expression. The court declined to apply a limiting construction, stating that to do so would invade the province of the legislature.
Analysis:
This decision exemplifies the application of the overbreadth doctrine, where a law is struck down in its entirety because its potential to punish protected speech is substantial, regardless of whether the defendant's own speech was protected. The court prioritizes the protection of free expression, forcing the legislature to draft narrower statutes that target specific, unprotected conduct like threats or obscenity. This case establishes a precedent in New Hampshire that laws regulating communication cannot be based on a vague or subjective intent like 'to annoy,' as this standard fails to distinguish between legitimate, protected speech and unlawful harassment. The ruling effectively invalidates the existing telephone harassment statute and requires a more precise legislative solution.
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