Can Utah's telephone harassment statute criminalize offensive speech? Provo City v. Whatcott Explained

In Provo City v. Whatcott, the Utah Court of Appeals addressed whether Utah’s telephone harassment statute violated the First Amendment when applied to offensive but non-threatening speech. The case arose when Scott Whatcott left a crude message on friends’ answering machine, which he claimed was intended as a prank.

Background and Facts

Whatcott admitted to leaving a sexually explicit message on the answering machine of Anne Nielson and Kathryn Convey, both of whom were his friends or acquaintances. The message contained graphic references to bodily functions and requested sexual contact. At trial, Whatcott testified that his intent was to “play a prank” and “parody” Convey’s previous discussions about her own health problems. Convey testified the message shocked and offended her. A jury convicted Whatcott of telephone harassment under Utah Code § 76-9-201.

Key Legal Issues

The central issue was whether subsections (a) and (d) of Utah’s telephone harassment statute were unconstitutionally overbroad under the First Amendment. The court applied the principle that a statute is overbroad if it “sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech.”

Court’s Analysis and Holding

The Court of Appeals found that subsections (a) and (d) were unconstitutionally overbroad. Subsection (a) prohibited any telephone call made with intent to “annoy” or “offend,” which the court found would criminalize legitimate activities like unwanted telemarketing calls, consumer complaints, or even a mother’s frequent calls to her adult child. Subsection (d) prohibited calls using “lewd or profane language,” which could criminalize jokes between friends or other protected speech. The court concluded the overbreadth was “real and substantial.”

Practice Implications

This decision demonstrates the importance of facial challenges to statutes that sweep too broadly. Practitioners should identify specific examples of protected speech that a statute would criminalize beyond its intended scope. The court’s analysis provides a framework for challenging similar statutes that criminalize speech based on vague terms like “annoying” or “offensive” without adequate constitutional safeguards.