Appeal from the Circuit Court of Cook County; the Hon. John J.
McDonnell, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendants, Rita Klick and Stanley Rudzinski, were charged in separate complaints with disorderly conduct in that they knowingly made a telephone call or calls with the intent to annoy another in violation of section 26-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 26-1(a)(2)). The circuit court of Cook County granted defendants' motions to dismiss on the grounds that section 26-1(a)(2) is unconstitutional. The State has appealed pursuant to Rule 302(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 302(a)(1)), and the cases have been consolidated for the purpose of disposition.
Section 26-1(a)(2) provides:
"(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; * * *."
Defendant Klick initially moved to dismiss the complaint, and later amended the motion to challenge the section's constitutionality arguing that it was impermissibly vague and overly broad, depriving her of due process and infringing on conduct protected by the first amendment to the United States Constitution. Following submission of defendant's written memorandum and presentation of oral argument, the trial court found section 26-1(a)(2) to be overly broad and, therefore, violative of the first and fourteenth amendments to the United States Constitution. The court thereafter dismissed the complaint against Klick and the later complaint brought against Rudzinski.
The State contends that section 26-1(a)(2) is neither impermissibly vague nor overly broad. Because of our finding, only the latter assertion will be discussed.
The State argues that section 26-1(a)(2) is not overly broad in that it merely regulates conduct and does not deprive citizens of their first amendment freedoms, such as freedom of speech. It asserts that, to the extent this section does infringe upon first amendment freedoms, the infringement is justified, for the legislature has a legitimate interest in protecting an individual's privacy at home from unwanted telephonic intrusions.
In claiming the section to be overly broad, defendants argue that it deprives them of first amendment freedoms and makes criminal otherwise protected conduct. We agree.
A statute is overly broad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. (Grayned v. City of Rockford (1972), 408 U.S. 104, 114-15, 33 L.Ed.2d 222, 231, 92 S.Ct. 2294; People v. Schwartz (1976), 64 Ill.2d 275, 282.) In attempting to control or prevent activities which are subject to State regulation, the legislature must not use means which sweep too broadly and thereby penetrate the area of protected freedoms. (Zwickler v. Koota (1967), 389 U.S. 241, 250, 19 L.Ed.2d 444, 451, 88 S.Ct. 391; People v. Ridens (1974), 59 Ill.2d 362, 370.) When legislative goals can be achieved by means that avoid stifling fundamental personal liberties, then that course must be chosen. Elfbrandt v. Russell (1966), 384 U.S. 11, 18, 16 L.Ed.2d 321, 326, 86 S.Ct. 1238; People v. Ridens (1974), 59 Ill.2d 362, 370.
Certainly, the State has a legitimate interest in protecting the privacy of citizens from certain types of perverse telephone calls. As is evident from the committee comments, section 26-1(a)(2) was designed to prevent the intentional harassment of another by telephone. (Ill. Ann. Stat., ch. 38, par. 26-1(a), Committee Comments, at 597 (Smith-Hurd 1970).) Presumably it was the legislature's intent to ban the type of unreasonable conduct which by its very nature attacks the individual's peace of mind and solitude: e.g., terror caused to an unsuspecting person when he or she answers the telephone, perhaps late at night, to hear nothing but a tirade of threats, curses, and obscenities, or, equally frightening, to hear only heavy breathing or groaning. Clearly, this is not the type of conduct which is protected by the first amendment.
Section 26-1(a)(2), however, is not limited to only these or similar types of unreasonable conduct. It applies to any call made with the intent to annoy. Unlike the objective standard employed in section 26-1(a)(1) (see People v. Raby (1968), 40 Ill.2d 392, 395-98), section 26-1(a)(2) could apply to conduct other than that which might provoke a breach of the peace. The act constituting the offense is complete when the call is made, regardless of the character of the conduct that subsequently occurs. The State, however, urges that implicit in this section is the requirement that the call be made in an unreasonable manner. To adopt the State's position, it would be necessary to supply an additional provision to the otherwise clear and unambiguous language of section 26-1(a)(2). This we cannot do. People v. Flaherty (1947), 396 Ill. 304, 312-13.
By making the call itself the criminal act not the language used or the method employed to harass the legislature has attempted to avoid infringing on protected speech. But the means they have chosen to reach unprotected conduct sweeps too broadly, and, in fact, makes criminal conduct protected by the ...