Whimbush v. People , 18 Brief Times Rptr. 303 ( 1994 )

Justice MULLARKEY

delivered the Opinion of the Court.

The petitioner, Roy W. Whimbush, was convicted of criminal extortion pursuant to section 18-3-207(1), 8B C.R.S. (1986). The Colorado Court of Appeals affirmed his conviction in an unpublished opinion, People v. Whimbush, No. 90CA2071 (Colo.App. July 16, 1992). We granted certiorari to consider whether section 18-3-207(1) is unconstitutionally overbroad, whether the trial court erred by denying a proposed jury instruction defining “threat,” and whether the trial court erred by denying Whimbush’s motion for judgment of acquittal when the prosecutor presented no evidence that Whimbush acted without legal authority. We hold that section 18-3-207(1) is unconstitutionally over-broad on its face.¹ We reverse and remand the case with directions.

I

Whimbush worked for a local mortuary for approximately one year selling pre-need funeral plans on a commission basis. Whim-bush and the owner of the mortuary (the owner) eventually became involved in a dispute over the amount of commissions owed to Whimbush, and the two mutually agreed that Whimbush would no longer work at the mortuary.

The owner’s staff threw a surprise birthday party for him at the mortuary on September 1, 1989, and hired a male stripper as entertainment. Even though he was no longer an employee, Whimbush attended the party and took photographs of the stripper’s act.

Angered that the owner had not paid him the sum allegedly owed to him in commissions, Whimbush telephoned the mortuary on April 4, 1990. He asked the general manager of the mortuary to tell the owner that he had some photographs of the birthday party that he was going to sell to the highest bidder. Whimbush then called back an hour later and told the general manager that a local newspaper had offered him $3000 for the pictures.

In response to these calls, the owner contacted the Denver District Attorney’s Office. That office arranged to have the owner’s telephone monitored, and recorded conversations between the owner and Whimbush. In the first conversation, Whimbush told the owner that he had found a roll of film containing pictures of the stripper from the birthday party. Whimbush also stated that he would give the film to the owner if the owner paid him $2844, the amount Whimbush claimed the owner owed him in unpaid commissions. Later that day, the owner, accompanied by an undercover police officer and back-up officers, drove to Whimbush’s home and delivered $3000 to him in exchange for the film. As soon as the money was exchanged for the film, Whimbush was arrested.

Whimbush was then charged with one count of criminal extortion pursuant to section 18-3-207(1), 8B C.R.S. (1986). After a jury trial, Whimbush was found guilty of criminal extortion² and was ultimately sentenced to two years’ probation. The court of appeals affirmed the judgment of conviction.

II

The extortion statute at issue in this case provides:

Whoever without legal authority threatens to confine, restrain, or cause economic or bodily injury to the threatened person or another or to damage the property, economic well-being, or reputation of the threatened person or another with intent thereby to induce the threatened person or another against his will to do an act or refrain from doing a lawful act commits criminal extortion which is a class 4 felony.

§ 18-3-207(1), 8B C.R.S. (1986). According to Whimbush, this statute is facially over-broad because it sweeps within its reach both constitutionally protected and unprotected speech. We agree.

A statute will be struck down as facially overbroad in violation of the state³ and federal⁴ constitutions if it substantially infringes upon constitutionally protected speech while proscribing speech which is not constitutionally protected. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); People v. Ryan, 806 P.2d 935, 939 (Colo.), cert. denied, — U.S. -, 112 S.Ct. 177, 116 L.Ed.2d 140 (1991); People v. Batchelor, 800 P.2d 599, 601 (Colo.1990). Thus, to determine whether section 18-3-207(1), 8B C.R.S. (1986) is over-broad, we must examine the degree to which the statute could be used to prohibit speech that is beyond the reach of governmental regulation. Bolles v. People, 189 Colo. 394, 397, 541 P.2d 80, 82 (1975).

A statute properly may criminalize threats which constitute “fighting words” provoking immediate violence. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Similarly, words that are calculated to produce immediate panic are not entitled to constitutional protection. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).

However, not all threats fall outside the scope of protected speech. For example, in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), the United States Supreme Court determined that an NAACP consumer boycott was protected expression, even though the petitioners sought to persuade others to join the boycott through social pressure and the “threat” of social ostracism. According to the Court, “[sjpeech does not lose its protected character ... simply because it may embarrass others or coerce them into action.” Id. at 910, 102 S.Ct. at 3424. See also Bolles, 189 Colo. at 398, 541 P.2d at 83 (“[I]f unsettling, disturbing, arousing, or annoying communications could be proscribed, ... the protection of the First Amendment would be a mere shadow indeed.”).

Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), the Supreme Court overturned an injunction against the distribution of leaflets accusing a real estate broker of “blockbusting” tactics. Although the organization distributed the leaflets to coerce the broker into signing an agreement to change his practices, the Supreme Court stated that “[t]he claim that the expressions were intended to exercise a coercive impact on [the broker] does not remove them from the reach of the First Amendment.” Id. at 419, 91 S.Ct. at 1578. See also NAACP, 458 U.S. at 911, 102 S.Ct. at 3424; Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir.1983).

Colorado’s criminal extortion statute could be used to prohibit threats of imminent bodily harm and other types of non-protected speech without violating the federal or state constitutions. However, the statute is facially overbroad because it also covers threats of collective action in support of group demands protected by cases such as NAACP and Keefe. And, as the Oregon Supreme Court noted when examining an analogous coercion statute in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982):

[A]part from reaching such relationships, the statute makes no distinction whether the coercive demands and threats are addressed by one person to another in a private confrontation or correspondence or in a more or less public setting designed to inform and perhaps involve others in the issues posed by the demand and the potential sanction. Yet such a setting often will involve protected communication with this wider audience.

Id. 649 P.2d at 589.

The prosecution argues that the element of “intent” to induce another person to act against his or her will limits the scope of the statute to conduct and speech that is not constitutionally protected. We disagree. As we stated in People v. Smith, 862 P.2d 939, 942 (Colo.1993), a specific intent requirement does not eliminate overbreadth concerns when the effect associated with the intent provision (in this case, to induce another to act against his or her will) encompasses a substantial amount of protected activity.

Ill

Even though a statute is substantially overbroad, it should not be invalidated in toto when a limiting construction will restrict the statute’s scope to unprotected conduct. Ryan, 806 P.2d at 940. However, a court should not apply a saving construction when to do so would involve rewriting legislation in the face of contrary legislative intent. City of Seattle v. Ivan, 71 Wash.App. 145, 856 P.2d 1116, 1123 (1993). See also Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 1477, 6 L.Ed.2d 782 (1961) (“Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not ... carry this to the point of perverting the purpose of a statute.”); Lawrence Tribe, American Constitutional Law 1032 (2d Ed.1988). In our opinion, there are no limiting constructions which would render the statute constitutional consistent with the legislature’s intent.

Whimbush argues that the statute should be construed to proscribe only threats to do an unlawful act. We reject this interpretation of the statute. The language of the statute does not so limit its intended reach, and we do not believe that the legislature intended such a requirement.

In interpreting a statute, our primary task is to ascertain and give effect to the intent of the legislature. People v. Davis, 794 P.2d 159, 180 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991); People v. Terry, 791 P.2d 374, 376 (Colo.1990). To determine legislative intent, we begin with the language of the statute itself and interpret statutory terms in accordance with their commonly accepted meanings. Thiret v. Kautzky, 792 P.2d 801, 806 (Colo.1990); People v. District Court, 713 P.2d 918, 921 (Colo.1986).

The language of section 18-3-207(1) draws no distinction between “lawful” and “unlawful” acts. It is true that the statute requires that the prosecutor prove that the defendant made the threat “without legal authority.” § 18-3-207(1); CJI-Crim. 10:17. However, in People v. Schuett, 833 P.2d 44, 47 (Colo. 1992), we interpreted a similar phrase, “without lawful justification,” contained in our second degree kidnapping statute, section 18-3-302, 8B C.R.S. (1986), and concluded that the phrase “simply means an act not authorized or permitted by law — in other words, an act performed without lawful authority.” We also noted that “[tjhere is no basis ... for importing into the term the notion of acting in pursuit or in furtherance of some illegal purpose ulterior to the other conduct specifi-eally prohibited by section 18-3-302(1).” Id. at 47-48. We believe that the plain meaning of the phrase “legal authority” in the extortion statute likewise refers to express legal authority, such as a police officer has when threatening to arrest a person suspected of committing a crime. As in Schuett, we decline to interpret the phrase to mean that the threat must be to perform an unlawful act.

Nor does the legislative history of section 18-3-207(1) reflect an intent to limit the statute’s scope to threats to commit an illegal act. In 1971, the General Assembly repealed and reenacted Colorado’s Criminal Code, chapter 40 of C.R.S.1963. At that time, the General Assembly added section 40-3-207, the immediate predecessor of the extortion statute at issue in this case.⁵ According to the comments pertaining to the February 1971 draft of the Code,⁶ this statute was taken from section 340.28 of the Wisconsin Criminal Code. Comments to the February 1971 draft of the Colorado Code of Crimes and Offenses 15 (on file with the Colorado Supreme Court Library). This section provided:

Whoever threatens to confine or restrain or to cause bodily harm to the threatened person or another or to damage the property of the threatened person or another with intent thereby to induce the threatened person against his will to do an act or refrain from doing a lawful act may be fined not more than $2000 or imprisoned not more than 2 years or both.

Ch. 623, see. 2, 340.28, 1953 Wis.Laws 659, 667 (repealed 1955). Like Colorado’s extortion statute, Wisconsin’s law did not distinguish between threats to commit “lawful” and “unlawful” acts.

The construction proposed by Whimbush is also unsatisfactory because a statute does not escape potential overbreadth solely because it is limited to threats involving unlawful conduct. Robertson, 649 P.2d at 687. As the Oregon Supreme Court stated in Robertson, “[v]erbal threats to take or initiate even unlawful violent action are not beyond first amendment protection by their content alone, divorced from any imminent realization.” Id. at 580-81. See also Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (confining a prohibition of threats to kill the President within First Amendment limits).

Having held section 18-3-207(1) to be facially overbroad, we recognize that the statute requires extensive revision to comply with constitutional requirements and that the rewriting of the statute is more appropriately done by the General Assembly than by this court. The states have taken varied approaches to criminal extortion or blackmail.⁷ If the General Assembly chooses to reenact the criminal extortion statute, it must make many policy choices to define the scope of the statute and the nature of the conduct to be prohibited.

Accordingly, the judgment of the court of appeals is reversed, and the case is returned to that court with directions to remand the case to the trial court for the entry of an order vacating Whimbush’s conviction and sentence for criminal extortion.

LOHR, J., dissents, and KIRSHBAUM and VOLLACK, JJ., join the dissent.

1 . Because we conclude that the statute is unconstitutionally overbroad, we need not consider the other issues raised by Whimbush in his petition.

2 . Whimbush was also convicted of the lesser non-included misdemeanor offense of harassment. See § 18-9-11 l(l)(e), 8B C.R.S. (1986). He does not challenge the propriety of that conviction on review.

3 . Colo. Const, art. II, § 10.

4 . U.S. Const, amends. I, XIV.

5 . The former version of this statute did not expressly prohibit threats to the "economic well-being” of the threatened person, and the crime was categorized as a class 1 misdemeanor entitled "criminal intimidation.” Ch. 121, sec. 1, § 40-3-207, 1971 Colo.Sess.Laws 388, 421. In 1975, the statute was amended to include threats to cause economic harm, and the crime was elevated to a class 4 felony entitled "criminal extortion.” Ch. 167, sec. 8, § 18-3-207, 1975 Colo.Sess.Laws 616, 618.

6 . The February 1971 draft of the Code was not enacted. However, the criminal intimidation statute contained in that draft is the same as section 40-8-207. See February 1971 draft of the Colorado Code of Crimes and Offenses 68-69 (on file with the Colorado Supreme Court Library).

7 . Modern extortion statutes vary widely in terms of the types of threats that are prohibited, whether the threat must succeed, and what types of advantages must be sought for extortion to have been committed. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.12(a) at 459-61 (1986). States also differ over the scope of a "claim of right” defense (i.e., when an individual may use a threat of harm to pursue a legitimate claim). See Model Penal Code § 223.4 cmt. 2(e) at 211-12 (1980).