Criminal / Harassment

The supreme court, in a unanimous opinion written by Associate Justice Linda S. Dalianis, affirmed Hillsborough County Superior Court Judge William Groff's dismissal of a charge of harassment [RSA 644:4, I(a)] because the statute was facially unconstitutionally overbroad in violation of Part I, Article 22 of the New Hampshire Constitution and the First and Fourteenth Amendments of the Federal Constitution.

The defendant was charged with harassment after he made a number of telephone calls to the house where the victim was caring for her younger siblings and on his sixth and final call, he allegedly told her, "[Y]ou're a f-ing bitch and you're going to be a slut just like your mother." The statute provided a personis guilty of a misdemeanor if such person "makes a telephone call, whether or not a conversation ensues, with a purpose to annoy or alarm another."

The court found that the prohibition of all telephone calls placed with the intent to alarm encompasses too large an area of protected speech, citing such legitimate communications that may be prohibited by the statute because they are made "with the intent to alarm", such as calls made:

• to emphasize an idea or opinion or to prompt a desired course of action that one is legitimately entitled to seek,
• by a consumer who wishes to express his dissatisfaction over the performance of a product or service,
• by a businessman disturbed with another's failure to perform a contractual obligation,
• by an irate citizen, perturbed with the state of public affairs, who desires to express his opinion to a public official,
• by an individual bickering over family matters,
• to warn of an approaching tornado or an escaped dangerous animal, or from a bill collector demanding payment.

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