Lehi City v. Rickabaugh , 2021 UT App 36 ( 2021 )

2021 UT App 36THE UTAH COURT OF APPEALS
LEHI CITY,
Appellee,
v.
JASON RICKABAUGH,
Appellant.
Opinion
No. 20190501-CA
Filed April 1, 2021
Fourth District Court, American Fork Department
The Honorable Robert C. Lunnen
No. 181101203
Staci A. Visser and Justin S. Pratt, Attorneys
for Appellant
James Hansen, Timothy G. Merrill, and Cherylyn
Egner, Attorneys for Appellee
Sean D. Reyes and John J. Nielsen, Attorneys for
Amicus Curiae State of Utah
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY
concurred. 1
POHLMAN, Judge:
¶1 Jason Rickabaugh appeals his conviction of electronic
communication harassment, a class B misdemeanor. He
contends that the governing statute is unconstitutionally
1. Senior Judge Kate Appleby began work on this case as an
active member of the Utah Court of Appeals. She completed her
work as a senior judge sitting by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Lehi City v. Rickabaugh
overbroad and vague, both on its face and as applied to him. We
affirm.
BACKGROUND
¶2 The parties agree that the events in this case arise from
the Lehi City Planning Commission’s and Lehi City Council’s
consideration of certain mining and development projects near
Traverse Mountain. Rickabaugh and the victim (Victim), both
private citizens, took an interest in the issue and held opposing
views. Victim was “actively involved in brokering” an earlier
compromise between the developer and the community, and he
“had a lot of different discussions with the City” on the
particular development then under consideration. On January
16, 2018, Victim attended a city council meeting and, during
public comment, spoke in favor of the development.
¶3 On January 26, 2018, Rickabaugh sent at least thirty direct
messages to Victim via Facebook. Starting at 12:40 a.m.,
Rickabaugh wrote, 2 among other things, the following:
• Are you such a fucking bitch you don’t want to
take the time to drive your children across Kevin
bacon’s rail road tracks? 3
• Do you have skin in the game? You are such a
pathetic cunt. When are you—whatever you traded
2. We retain Rickabaugh’s original spelling, capitalization, and
punctuation.
3. Rickabaugh’s messages contain several references to Footloose,
a 1984 movie that starred Kevin Bacon and had scenes filmed in
Lehi, Utah. See Footloose (1984 film), Wikipedia,
https://en.wikipedia.org/wiki/Footloose_(1984_film) [https://per
ma.cc/KDS8-HA43].
20190501-CA 2 2021 UT App 36Lehi City v. Rickabaugh
your soul for, I hope it keeps your cunt warm at
night. Trading your soul and your family’s lungs
for some cunt-ass alternative.
• Perhaps I should contact the first presidency to
strip you of all dignity.
• Suck dick [Victim]! Your mom is the mother of a
whore.
• [Your wife] will leave you because you are a
CUNT!
• Your children will hate you!
• I’’M on you like white on rice on a paper airplane
on a paper plat being held by a captain on a
submarine that broke through the ice at the
FUCKING NORTH POLE! IN A FUCKING GOD
ENDING BLIZARD.
• YOU KNOW WHAT . . . . . . . NOW YOU ARE #1
ON MY LIST OF PEOPLE TO DESTROY!
•PORTER 4 TO THE NEXT LEVEL OF CUNT
SMASHING!
Later that morning, at 11:16 a.m., Rickabaugh followed up with
another message: “Sorry man. I get really drunk and angry
about the insane idea that mining in a residential area is ok.”
¶4 Victim read Rickabaugh’s “barrage” of messages in the
morning. Feeling “violated” and “threaten[ed],” Victim
contacted the police. When the police reached Rickabaugh and
4. Porter is Rickabaugh’s middle name and the name he goes by
on Facebook.
20190501-CA 3 2021 UT App 36Lehi City v. Rickabaugh
asked him why he sent the messages to Victim, Rickabaugh
“freely admitted that he had sent them out of a difference of
opinion between him and [Victim] regarding . . . the mining
efforts or . . . the excavation within Traverse Mountain.” Lehi
City then charged Rickabaugh with one count of electronic
communication harassment based on the messages.
¶5 The case was first brought in Lehi City Justice Court.
Rickabaugh moved to dismiss the case on constitutional
grounds, arguing that the electronic communication harassment
statute is overbroad and vague and that it infringed on his right
to free speech. The court denied the motion, and Rickabaugh
was tried and convicted by a jury. He then appealed for a trial de
novo in district court. See generally Utah Code Ann. § 78A-7-118
(LexisNexis 2018) (explaining that a criminal defendant in justice
court “is entitled to a trial de novo in the district court”); Utah R.
Crim. P. 38 (setting forth the procedural rules for an appeal from
justice court to district court).
¶6 The City filed a bill of particulars in district court, stating
that the offense occurred on or about January 26, 2018. It also
stated its theory of the case under three subsections of the
electronic communication harassment statute. Specifically, the
City asserted that Rickabaugh “committed the crime of
electronic communication harassment, with the intent to
intimidate, abuse, or harass, frighten, or threaten [Victim]” by
“making repeated contact by means of electronic
communications”; by “sending messages via electronic means,
that contained insults, taunts, or challenges likely to provoke a
violent or disorderly response”; or by “making contact with
[Victim] by means of electronic communication and
threaten[ing] to inflict injury, physical harm, or damage to any
person or property.” See Utah Code Ann. § 76-9-201(2)(a)(i), (b),
(c) (LexisNexis 2017).
¶7 Before trial, Rickabaugh again moved to dismiss the case
on constitutional grounds. He asserted generally that the statute
is unconstitutionally overbroad and vague, both on its face and
20190501-CA 4 2021 UT App 36Lehi City v. Rickabaugh
as applied to him. In his view, “the statute is overbroad by
including constitutionally protected speech within its
prohibitions” and it is “written in a vague manner and as a
result a person of ordinary intelligence cannot know what is
prohibited.”
¶8 After hearing oral argument, the district court denied
Rickabaugh’s motion to dismiss. Noting that “[f]acial challenges
including those based on overbreadth are disfavored,” the court
first ruled that the electronic communication harassment statute
is not overbroad. It reasoned that a mental state, that is, mens
rea, 5 is “necessary to separate wrongful conduct from otherwise
innocent conduct” and that the “mens rea . . . is everything in
this” case. The court further explained that the City “hav[ing] to
prove to a jury the specific intent to intimidate, abuse, threaten,
or disrupt” is why the court “can’t overturn this statute.” It also
observed that even if one subsection of the statute were
unconstitutional, it could not “overturn the entire statute.” Next,
the court ruled that the statute is not vague, explaining that
Rickabaugh’s “vagueness arguments fail for the same reason as
. . . his overbreadth arguments.” Accordingly, the court
concluded that “the specific intent requirement mitigates any
potential vagueness” in the statute.
¶9 The case proceeded to a jury trial in district court. The
City’s witnesses included Victim, and the City introduced the
January 26, 2018 Facebook messages into evidence. Rickabaugh
himself testified and admitted that he sent at least thirty
messages to Victim via Facebook. Rickabaugh stated that he
“wanted to communicate with [Victim] hopefully to get [him] to
change his position and show him [Rickabaugh’s]
5. Mens rea is “[t]he state of mind that the prosecution, to secure
a conviction, must prove that a defendant had when committing
a crime” and “is the second of two essential elements of every
crime at common law, the other being the actus reus.” Mens rea,
Black’s Law Dictionary (11th ed. 2019).
20190501-CA 5 2021 UT App 36Lehi City v. Rickabaugh
disappointment in . . . [Victim’s] decisions and perhaps to strike
[up] a conversation.” To show Rickabaugh’s intent, the City also
introduced evidence indicating that after Victim “blocked”
Rickabaugh on Facebook, Rickabaugh “called [Victim] out” and
accused him of bigotry on Lehi Link, a community Facebook
page. This Lehi Link post prompted Victim, using somebody
else’s Facebook page, to respond on the forum. The actual Lehi
Link posts, however, were not offered into evidence. But three
emails that Rickabaugh sent to the City mayor in May 2018, in
which Rickabaugh referred to his dispute with Victim, were
entered into evidence.
¶10 The jury found Rickabaugh guilty. He now appeals to this
court. See generally Utah Code Ann. § 78A-7-118(8) (“The
decision of the district court [from a case originating in justice
court] is final and may not be appealed unless the district court
rules on the constitutionality of a statute or ordinance.”).
ISSUES AND STANDARDS OF REVIEW
¶11 On appeal, Rickabaugh contends that the district court
should have concluded that the electronic communication
harassment statute is unconstitutionally overbroad and vague,
both on its face and as applied to him. “A constitutional
challenge to a statute presents a question of law,” and we review
the district court’s decision on that question for correctness. State
v. Garner, 2008 UT App 32, ¶ 10, 177 P.3d 637 (cleaned up); see
also State v. Mattinson, 2007 UT 7, ¶ 6, 152 P.3d 300 (“Whether a
statute is unconstitutionally overbroad or vague is a question of
law . . . .” (cleaned up)). “Those who challenge a statute or
ordinance as unconstitutional bear the burden of demonstrating
its unconstitutionality.” State v. Jones, 2018 UT App 110, ¶ 9, 427
P.3d 538 (cleaned up). “When addressing such a challenge, this
court presumes that the statute is valid, and we resolve any
reasonable doubts in favor of constitutionality.” Garner, 2008 UT
App 32, ¶ 10 (cleaned up); accord South Salt Lake City v. Maese,
2019 UT 58, ¶ 10, 450 P.3d 1092.
20190501-CA 6 2021 UT App 36Lehi City v. Rickabaugh
ANALYSIS
¶12 The statute at issue in this case is Utah Code section
76-9-201, which defines the crime of electronic communication
harassment. The relevant provisions state,
(2) A person is guilty of electronic communication
harassment and subject to prosecution in the
jurisdiction where the communication originated
or was received if with intent to intimidate, abuse,
threaten, harass, frighten, or disrupt the electronic
communications of another, the person:
(a)(i) makes repeated contact by means of
electronic communications, regardless of whether a
conversation ensues; or
...
(b) makes contact by means of electronic
communication and insults, taunts, or challenges
the recipient of the communication or any person
at the receiving location in a manner likely to
provoke a violent or disorderly response; [or]
(c) makes contact by means of electronic
communication and threatens to inflict injury,
physical harm, or damage to any person or the
property of any person . . . .
Utah Code Ann. § 76-9-201(2)(a)(i), (b), (c) (LexisNexis 2017). The
statute defines “electronic communication” as “any
communication by electronic, electro-mechanical, or electro-
optical communication device for the transmission and reception
of audio, image, or text but does not include broadcast
transmissions or similar communications that are not targeted at
any specific individual.” Id. § 76-9-201(1)(b).
20190501-CA 7 2021 UT App 36Lehi City v. Rickabaugh
¶13 Rickabaugh argues that the district court should have
determined that this statute is unconstitutionally overbroad and
vague. 6 We first address overbreadth and then turn to
vagueness.
I. Overbreadth
¶14 Rickabaugh contends that the electronic communication
harassment statute is overbroad both facially and as applied. We
consider his facial challenge and then his as-applied challenge.
A. Facial Overbreadth Challenge
¶15 Rickabaugh asserts that each of the challenged
subsections under section 76-9-201 “criminalize[s] speech” and is
unconstitutionally overbroad by “reach[ing] a substantial
amount of constitutionally protected conduct” under the First
Amendment to the United States Constitution. (Cleaned up.) We
first determine that under the circumstances of this case, we may
sustain the statute if we conclude that one of the challenged
subsections is not overbroad. We then conclude that subsection
(2)(b) is not overbroad and that Rickabaugh’s facial overbreadth
challenge is therefore unavailing.
¶16 At the outset, we recognize the Utah Supreme Court’s
direction that “a defendant may only challenge multiple portions
6. Rickabaugh claims the statute is unconstitutional under both
the United States Constitution and the Utah Constitution.
Although he cites one case to support the proposition that
Article I, Section 15 of the Utah Constitution is “broader than its
federal counterpart,” he does not undertake a separate state
constitutional analysis or further develop this argument.
(Cleaned up.) “Without more fulsome briefing” on a state
constitutional question, Utah appellate courts will decline to
consider a state constitutional argument. See State v. Evans, 2019
UT App 145, ¶ 17 n.5, 449 P.3d 958. We follow that course here.
20190501-CA 8 2021 UT App 36Lehi City v. Rickabaugh
of a statute if invalidating each of the challenged portions would
be necessary to find that [the] defendant’s conduct fell outside
the statute’s proscriptions.” Provo City Corp. v. Thompson, 2004
UT 14, ¶ 18, 86 P.3d 735. This means that “[i]f a finding that one
portion is valid will suffice to uphold a conviction, a defendant
lacks standing to challenge, and a court cannot properly
adjudicate, the constitutionality of another portion of the
statute.” 7 Id.
¶17 To illustrate, in Thompson, the defendant “might have
been convicted” under two provisions of the telephone
harassment statute that he claimed were invalid—the so-called
repeated calls provision and the unwanted calls provision. Id.
¶¶ 19, 21. The court of appeals affirmed the defendant’s
conviction, upholding the unwanted calls provision but
invalidating the repeated calls provision. Id. ¶ 3. On certiorari,
the supreme court determined that the court of appeals had
erred in reaching the latter issue of whether the repeated calls
provision was constitutional. Id. ¶¶ 4, 21. The supreme court
explained that once the court of appeals upheld the unwanted
calls provision, “[the] defendant had no standing to challenge
the constitutionality of the repeated calls provision.” Id. ¶ 21. In
other words, “the issue of whether the repeated calls provision
was valid was no longer properly before the [court of appeals]
7. As more thoroughly discussed in Provo City Corp. v. Thompson,
2004 UT 14, 86 P.3d 735, “a party may generally assert only his
or her own rights and cannot raise the claims of third parties
who are not before the court.” Id. ¶ 9. “When a challenge of
statutory overbreadth is made, an exception to the basic
standing requirements is available in the First Amendment
context.” Id. ¶ 10. Thus, a defendant may pursue an overbreadth
challenge “on behalf of others not before the court.” Id. (cleaned
up). Nevertheless, the party “must still demonstrate its own
cognizable injury in fact,” which includes showing that “if the
court invalidates the challenged provision, the party’s harm will
be redressed.” Id. ¶ 12 (cleaned up).
20190501-CA 9 2021 UT App 36Lehi City v. Rickabaugh
once it had determined that [the] defendant’s conviction was
supported by a different, valid portion of the statute.” Id.
¶18 Rickabaugh was charged under the three subsections he
challenges on appeal. The jury was instructed on each of these
provisions and found him guilty. Like the defendant in
Thompson, Rickabaugh acknowledges that he might have been
convicted under the three challenged portions of the statute. 8
Under the principles of Thompson, if we conclude that one of the
three challenged subsections is valid and will suffice to uphold
Rickabaugh’s conviction, we will not adjudicate the
8. The verdict form did not ask the jury to indicate which
subsection formed the basis of its conviction. Given this,
Rickabaugh suggests that it is unknown what “single statutory
variation” applied to his conviction where, in his view, “the
particular subsections under which [he] was charged create[]
seventy-eight different variations of the elements.” Uncertainty
in this regard, however, “counts against [Rickabaugh], who
bears the burden of proof on appeal.” See State v. Hummel, 2017
UT 19, ¶ 82, 393 P.3d 314. “[A] lack of certainty in the record
does not lead to a reversal”; rather, “it leads to an affirmance on
the ground that the appellant cannot carry his burden of proof.”
Id. Notably, Rickabaugh has not argued on appeal that the
evidence was insufficient under any of the three challenged
subsections.
To the extent Rickabaugh now argues that the district
court plainly erred by not requiring it to be “readily discernible
how the City was applying the [electronic communication
harassment] statute to the communications he made,” he raises
this argument for the first time in his reply brief. “When a party
fails to raise and argue an issue on appeal, or raises it for the first
time in a reply brief, that issue is waived and will typically not
be addressed by the appellate court.” State v. Johnson, 2017 UT
76, ¶ 16, 416 P.3d 443. “This rule applies to claims of plain error.”
State v. Robinson, 2014 UT App 114, ¶ 12, 327 P.3d 589. We thus
consider this argument to be untimely.
20190501-CA 10 2021 UT App 36Lehi City v. Rickabaugh
constitutionality of any other subsections of the statute. See id.
¶¶ 18, 21. Because we conclude that subsection (2)(b) is valid, we
do not address whether the other subsections are overbroad.
¶19 Overbreadth “is a substantive due process question which
addresses the issue of whether the statute in question is so broad
that it may not only prohibit unprotected behavior but may also
prohibit constitutionally protected activity as well.” State v.
Frampton, 737 P.2d 183, 192 (Utah 1987) (cleaned up). The
overbreadth doctrine “is strong medicine,” employed only “as a
last resort.” Thompson, 2004 UT 14, ¶ 10 (cleaned up). A statute is
overbroad “only if it does not aim specifically at evils within the
allowable area of state control but, on the contrary, sweeps
within its ambit other activities that in ordinary circumstances
constitute an exercise of freedom of speech or the press.” Provo
City v. Whatcott, 2000 UT App 86, ¶ 8, 1 P.3d 1113 (cleaned up).
¶20 The constitutional guarantee of freedom of speech does
not allow “the government to punish the use of words or
language outside of ‘narrowly limited classes of speech.’” Logan
City v. Huber, 786 P.2d 1372, 1374 (Utah Ct. App. 1990) (quoting
Gooding v. Wilson, 405 U.S. 518, 521–22 (1972)). “Those limited
classes of unprotected speech” include “the obscene, the
libelous, fighting words, and certain language that incites.” Id. at
1374–75 (cleaned up). The parties agree that the most relevant
class of unprotected speech in this case is “fighting words.”
Fighting words are defined as words that “tend to incite an
immediate breach of the peace by the person to whom they are
directly addressed.” 9 Id. at 1375.
9. Rickabaugh has not argued that the fighting words exception
cannot apply where the violent or disorderly response may not
be imminent due to the distance between the actor and recipient
of the communication or any person at the receiving location.
Thus, we express no opinion on the matter.
20190501-CA 11 2021 UT App 36Lehi City v. Rickabaugh
¶21 To conclude that a statute is unconstitutionally overbroad
where “conduct and not merely speech is involved . . . the
overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute’s plainly legitimate
sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973); accord
Provo City v. Thompson, 2002 UT App 63, ¶ 23, 44 P.3d 828, aff’d in
part, vacated in part, 2004 UT 14, 86 P.3d 735; see also State v.
Norris, 2007 UT 6, ¶ 13, 152 P.3d 293 (stating that “a court’s first
task is to determine whether the enactment reaches a substantial
amount of constitutionally protected conduct” and that if “it does
not, then the overbreadth challenge must fail” (cleaned up)). As
relevant here, the government has a “compelling interest in
protecting its citizens from threatening or harmful behavior.”
Salt Lake City v. Lopez, 935 P.2d 1259, 1264 (Utah Ct. App. 1997),
superseded by statute on other grounds as recognized by Baird v.
Baird, 2014 UT 08, 322 P.3d 728; cf. Whatcott, 2000 UT App 86,
¶ 10 (“[T]he state has a legitimate interest in protecting the
public from certain unreasonable telephone calls.”).
¶22 Applying this framework, we hold that subsection (2)(b)
is not facially overbroad. The plain language of subsection (2)(b)
states that a person commits electronic communication
harassment when, “with intent to intimidate, abuse, threaten,
harass, frighten, or disrupt the electronic communications of
another, the person . . . makes contact by means of electronic
communication and insults, taunts, or challenges the recipient of
the communication or any person at the receiving location in a
manner likely to provoke a violent or disorderly response.” Utah
Code Ann. § 76-9-201(2)(b) (LexisNexis 2017).
¶23 Notably, the statute requires that the person act with
“intent to intimidate, abuse, threaten, harass, frighten, or disrupt
the electronic communications of another.” Id. § 76-9-201(2). The
district court relied heavily on this intent requirement to uphold
the statute. But Rickabaugh argues that “the mere fact that a
statute impacting constitutional rights has a specific intent does
not automatically shield it from constitutional scrutiny.” And the
City concedes that “it would be overstated to assert that the
20190501-CA 12 2021 UT App 36Lehi City v. Rickabaugh
requirement of specific intent eliminates any and all risk that
permissible speech could be asserted to violate the statute.”
¶24 On this score, we agree that a specific intent requirement
does not necessarily save a statute from an overbreadth
challenge. See, e.g., Whatcott, 2000 UT App 86, ¶¶ 11–14
(determining that two statutory subsections were overbroad
even though they had a specific intent requirement). But we also
share the State’s view that the intent requirement mitigates the
risk that the statute reaches a substantial amount of
constitutionally protected conduct. See, e.g., United States v. Sayer,
748 F.3d 425, 434–35 (1st Cir. 2014) (indicating that a statute’s
prohibition on a course of conduct done with the intent to kill,
injure, or harass “clearly targets conduct performed with serious
criminal intent, not just speech that happens to cause annoyance
or insult”); State v. Hagen, 558 P.2d 750, 753 (Ariz. Ct. App. 1976)
(“By specifying the intent with which the call must be made and
the nature of the language prohibited, the statute clearly
demonstrates that the prohibited activities find no protection
under the First Amendment.”); State v. Alexander, 888 P.2d 175,
179–80 (Wash. Ct. App. 1995) (explaining that a similar
overbreadth challenge failed “because a specific intent
requirement sufficiently narrowed the laws’ proscriptions”).
¶25 Rickabaugh suggests that under the statute’s intent
requirement and subsection (2)(b)’s statutory language—
specifically, the qualifier “in a manner likely to provoke a violent
or disorderly response”—“someone could be convicted by
merely saying something subjectively offensive to the receiving
individual.” We disagree.
¶26 The statute specifically targets “insults, taunts, or
challenges [to] the recipient” that are “likely to provoke a violent
or disorderly response” but only when the actor or speaker also
has “intent to intimidate, abuse, threaten, harass, frighten, or
disrupt the electronic communications of another.” Therefore,
having narrowed its target on at least three levels, the statute’s
language does not create a subjective standard for judging
20190501-CA 13 2021 UT App 36Lehi City v. Rickabaugh
whether the speaker has committed a criminal act. Cf. People ex
rel. VanMeveren v. County Court in & for County of Larimer, 551
P.2d 716, 718–20 (Colo. 1976) (en banc) (concluding that statutory
language similar to Utah’s subsection (2)(b) “does not require
that the speaker guess as to the effect of his words upon the
addressee” but instead “requires an objective determination:
whether the words when directed to an average person would
tend to induce an immediate breach of the peace”). We agree
with the State that the statute “focuses on the speaker’s intent,”
not on the listener’s subjective reaction. See generally People v.
Taravella, 350 N.W.2d 780, 784 (Mich. Ct. App. 1984) (“The
statute clearly provides that the focus is on the caller; it is the
malicious intent with which the transmission is made that
establishes the criminality of the conduct. Thus, irrespective of
the listener’s subjective perceptions, without the necessary intent
on the part of the caller the use of obscene words alone would
not fall within the statutory proscriptions.” (cleaned up));
Alexander, 888 P.2d at 180 (“[T]he specific intent requirement,
which places the focus of the statute on the caller, sufficiently
narrows the scope of the proscribed conduct.”).
¶27 Still, Rickabaugh complains that the specific terms—
abuse, harass, frighten, and disrupt—within the requisite intent
“are not statutorily defined” and asserts that the terms
“themselves broaden the scope of the statute into
constitutionally protected speech.” (Cleaned up.) He thus urges
us to view each intent term in isolation.
¶28 For example, he asserts that the term “harass” captures
speech that is merely “annoying” and “unpleasant” or
“uninvited” and would include “unwanted telephone
solicitations made to a private home during the dinner hour” or
a mother’s worried phone calls to an adult son to see if he is all
right. Rickabaugh argues that the term “frighten” is “equally
problematic” because “there is a plentitude of communication
that makes someone afraid (or is intended to make someone
afraid) that does not fall outside the scope of protected speech.”
He suggests that, for instance, “frighten” would include an
20190501-CA 14 2021 UT App 36Lehi City v. Rickabaugh
employer’s email to employees warning that “if a project is not
completed by a certain day and time that they will be fired.”
Further, Rickabaugh argues that the term “disrupt the electronic
communications of another” is problematic because, in his view,
the “vast majority of electronic communication can be said to
have the specific intent to interrupt the normal course of the
receiving individual’s activity.” As examples, Rickabaugh posits
that the statute would apply to political campaigns or retailers
who “send multiple email messages or make multiple online
posts . . . intended to reorient the reader away” from what the
reader was doing at the time.
¶29 We decline Rickabaugh’s invitation to isolate each term
within the statute’s intent requirement. Instead, our analysis of
the requisite intent is tethered to the specific language of
subsection (2)(b) because the statute requires both intent and an
action. That subsection prohibits a person, acting with the
requisite intent, from “mak[ing] contact by means of electronic
communication and insult[ing], taunt[ing], or challeng[ing] the
recipient of the communication or any person at the receiving
location in a manner likely to provoke a violent or disorderly
response.” Utah Code Ann. § 76-9-201(2)(b). The statute thus is
aimed at conduct performed with “criminal intent, not just
speech.” Cf. Sayer, 748 F.3d at 435; United States v. Waggy, 936
F.3d 1014, 1019–20 (9th Cir. 2019) (collecting cases).
¶30 Viewing the terms of the requisite intent along with the
language of subsection (2)(b), we conclude that Rickabaugh has
not shown that Utah Code section 76-9-201(2)(b) sweeps up a
substantial amount of constitutionally protected speech. See
Broadrick, 413 U.S. at 615 (explaining that “the overbreadth of a
statute must not only be real, but substantial as well”). Indeed,
each of Rickabaugh’s hypotheticals fails to demonstrate
overbreadth when the provision is read as a whole. We see it as
highly unlikely that a substantial number of unwanted
telephone solicitations, mothers’ worried phone calls, employers’
warnings to employees, or political or commercial emails would
be both “insult[ing], taunt[ing], or challeng[ing] . . . in a manner
20190501-CA 15 2021 UT App 36Lehi City v. Rickabaugh
likely to provoke a violent or disorderly response” and also be
made with “intent to intimidate, abuse, threaten, harass,
frighten, or disrupt the electronic communications of another.” 10
See Utah Code Ann. § 76-9-201(2)(b); see also Broadrick, 413 U.S. at
615.
¶31 Nevertheless, Rickabaugh offers two other hypotheticals
premised on a holistic reading of section 76-9-201(2)(b). First,
he suggests that a person could have the specific intent to
“frighten” a friend who has arachnophobia by sending
pictures and videos of “large, scary spiders” and that this act
could also “taunt and elicit the alleged victim to have a
‘disorderly response’ by displaying outward manifestations of
fear.” We are not convinced that section 76-9-201(2)(b) captures
this scenario. We read the statute’s “violent or disorderly
response” language as pertaining to a response likely involving
“harmful or destructive physical force” or other “conduct
offensive to public order.” See Violent, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/violent [https://pe
rma.cc/97HX-Z5XP]; Disorderly, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/disorderly [https:
//perma.cc/7CKU-W6SN]. See generally State v. Malo, 2020 UT 42,
¶ 22, 469 P.3d 982 (explaining that “the first step of statutory
interpretation is to look to the plain language” (cleaned up)). In
this way, the statute is targeted to encompass a disruptive
reaction to incitement, not just “outward manifestations of fear”
that an arachnophobic friend might display in response to
receiving pictures of spiders.
¶32 Rickabaugh’s second hypothetical posits that a college
professor might email a student accusing the student of cheating
10. We also question whether the statute would capture a
substantial amount of political or commercial emails because the
statute excludes “communications that are not targeted at any
specific individual.” See Utah Code Ann. § 76-9-201(1)(b)
(LexisNexis 2017).
20190501-CA 16 2021 UT App 36Lehi City v. Rickabaugh
on a test. In Rickabaugh’s view, the professor could then be
acting with “the specific intent of ‘disrupting’ the normal course
of the student’s electronic activity” by wanting “the student to
read it and likely respond” and, further, the professor’s
allegation would be “insulting and challenging to the student”
and would “likely provoke a ‘disorderly response,’ causing the
student to panic out of anger or fear” and possibly causing the
student to disrupt “other college officials’ electronic
communication by emailing them to address the allegation.” As
with the previous hypothetical, we are doubtful that section
76-9-201(2)(b) captures this scenario. The statute is directed
toward a form of harassment that is “likely to provoke a violent
or disorderly response,” not responses that involve an individual
panicking or merely emailing others. But even if we were
persuaded that this scenario fell within the statute’s scope, “the
mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible
to an overbreadth challenge.” See United States v. Williams, 553
U.S. 285, 303 (2008) (cleaned up).
¶33 In sum, reading subsection (2)(b), together with the
specific intent requirement, we conclude that any possible
overbreadth is not substantial. Accordingly, we conclude that
section 76-9-201(2)(b) is not unconstitutionally overbroad on its
face.
B. As-Applied Overbreadth Challenge
¶34 Rickabaugh also asserts that the challenged subsections of
Utah Code section 76-9-201 are overbroad as applied, arguing
that they punish him for protected speech. 11 Largely because he
11. In challenging subsection (2)(a)(i), the repeated contact
provision, Rickabaugh complains that the City used “multiple
forms of ‘contact,’ to support the charges” against him, namely,
the Lehi Link posts and his emails to the mayor. Because we
need not and do not reach the merits of his challenge to
(continued…)
20190501-CA 17 2021 UT App 36Lehi City v. Rickabaugh
has not presented his as-applied constitutional challenge to
subsection (2)(b) in a way that is sufficiently distinguishable
from his facial challenge, we conclude that Rickabaugh has not
carried his burden of persuasion. We therefore uphold
subsection (2)(b) as applied to him.
¶35 A statute “may be unconstitutional either on its face or as
applied to the facts of a given case.” Gillmor v. Summit County,
2010 UT 69, ¶ 27, 246 P.3d 102 (cleaned up). A facial analysis of a
statute differs from an as-applied analysis. “In asserting a facial
challenge, a party avers that the statute is so constitutionally
flawed that no set of circumstances exists under which the
statute would be valid.” Id. (cleaned up). By contrast, “in an as-
applied challenge, a party concedes that the challenged statute
may be facially constitutional, but argues that under the
particular facts of the party’s case, the statute was applied in an
unconstitutional manner.” Id. (cleaned up). Thus, an as-applied
challenge to a statute involves showing that “there was
something uniquely unconstitutional about the way in which the
[statute was] applied” to the party. See id. ¶ 30. Put differently,
an as-applied challenge typically requires the party “to show
that, because of a particular quality or status of the [party] or the
[party’s] circumstances, the application of an otherwise sound
statutory provision was unconstitutional.” Salt Lake County v.
State, 2020 UT 27, ¶ 43 n.57, 466 P.3d 158.
¶36 In purportedly challenging subsection (2)(b) as applied to
him, Rickabaugh concedes that some of his messages “were
(…continued)
subsection (2)(a)(i), we do not fully address this complaint. We
note, however, that the jury was instructed that the charge at
issue was related specifically to harassment “occurring on or
about January 26, 2018”—the date of the Facebook messages.
And on appeal, Rickabaugh does not challenge the admission of
the three emails to the mayor or the references to the Lehi Link
posts.
20190501-CA 18 2021 UT App 36Lehi City v. Rickabaugh
offensive and likely caused anger and indignation,” but he
asserts that offensive words are still protected speech. He then
argues that “it is entirely possible the jury equated the ‘likely to
provoke . . . a disorderly response’ language with protected
speech,” particularly “where there was no standard in the
statute to determine from what perspective, subjective or
objective, this element should be determined.” (Omission in
original.) From this, Rickabaugh concludes that the jury “may
have convicted [him] based on the subjective view of the victim,
. . . who testified that he was highly offended.” 12
¶37 Rickabaugh’s nominal as-applied argument is, in
actuality, rooted in a facial challenge to subsection (2)(b). Even
though Rickabaugh briefly mentions some facts of his case in
relation to his as-applied challenge, his complaint’s substance
centers on the statute’s “disorderly response” language and on
his position that the statute is based on a subjective standard. 13
His substantive argument thus challenges the statute on its face.
And he has not explained how, “under the particular facts of
[his] case,” the statute was unconstitutionally applied to him. See
Gillmor, 2010 UT 69, ¶ 27. Indeed, he has not argued, let alone
established, what was “uniquely unconstitutional about the way
in which [subsection (2)(b) was] applied” to him. See id. ¶ 30. By
not adequately articulating a distinction between his facial and
as-applied challenges, 14 Rickabaugh has not provided sufficient
12. Rickabaugh has not argued that the evidence was insufficient
to prove that his words were “likely to provoke a violent or
disorderly response.”
13. We have already rejected Rickabaugh’s position that the
statute requires a subjective assessment. See supra ¶ 26.
14. Although Rickabaugh invoked the term “as applied,” the
substance of Rickabaugh’s overbreadth argument before the
district court was similarly focused on his facial challenge.
Perhaps because Rickabaugh did not specifically or
(continued…)
20190501-CA 19 2021 UT App 36Lehi City v. Rickabaugh
“reasoned analysis supported by citations to legal authority and
the record” to show “why [he] should prevail on appeal.” See
Utah R. App. P. 24(a)(8). We therefore reject Rickabaugh’s
as-applied challenge to subsection (2)(b).
II. Vagueness
¶38 Having rejected Rickabaugh’s overbreadth challenge to
subsection (2)(b) of the electronic communication harassment
statute, we now turn to his vagueness challenge. Similar to his
overbreadth arguments, Rickabaugh contends that the statute is
unconstitutionally vague both on its face and as applied to him.
We conclude that subsection (2)(b) as applied to Rickabaugh is
not vague and that his vagueness challenge therefore fails.
¶39 “Vagueness questions are essentially procedural due
process issues, i.e., whether the statute adequately notices the
proscribed conduct.” State v. Frampton, 737 P.2d 183, 191–92
(Utah 1987). Thus, “a statute is not unconstitutionally vague if it
is sufficiently explicit to inform the ordinary reader what
conduct is prohibited.” Id. (cleaned up). To establish that a
statute is unconstitutionally vague, “a defendant must
demonstrate either (1) that the statute[] do[es] not provide the
kind of notice that enables ordinary people to understand what
conduct is prohibited, or (2) that the statute[] encourage[s]
arbitrary and discriminatory enforcement.” State v. MacGuire,
2004 UT 4, ¶ 13, 84 P.3d 1171 (cleaned up).
¶40 A defendant “who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.” Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). This rule
(…continued)
meaningfully discuss the facts of this case in connection with his
constitutional challenge, the district court did not treat the
as-applied challenge differently from the facial challenge.
20190501-CA 20 2021 UT App 36Lehi City v. Rickabaugh
“makes no exception for conduct in the form of speech.” Holder
v. Humanitarian Law Project, 561 U.S. 1, 20 (2010). Under this rule,
a “court should therefore examine the complainant’s conduct
before analyzing other hypothetical applications of the law.”
Village of Hoffman Estates, 455 U.S. at 495. 15
¶41 In arguing that subsection (2)(b) is vague as applied to
him, Rickabaugh again focuses on the statute’s supposed
subjective standard. He claims that he did not know that
Victim’s mother had died shortly before he sent the message
telling Victim that his “mom is the mother of a whore” and that
Victim’s “subjective experience” may have weighed heavily in
the jury’s decision to convict. He also claims that whether his
messages were “insulting, taunting, or challenging” could have
been based on “subjective factors” such as Victim’s “position in
the community.”
¶42 In so arguing, Rickabaugh overlooks that the statute’s
“specific intent requirement significantly vitiates any claim that
its purported vagueness could mislead a person of common
intelligence into misunderstanding what is prohibited.” See Salt
Lake City v. Lopez, 935 P.2d 1259, 1265 (Utah Ct. App. 1997),
superseded by statute on other grounds as recognized by Baird v.
Baird, 2014 UT 08, 322 P.3d 728; see also Village of Hoffman Estates,
15. One court has questioned whether Holder v. Humanitarian
Law Project, 561 U.S. 1 (2010), applies to a facial challenge that “a
law is so vague as to subject the challenger itself to standardless
enforcement discretion.” See Act Now to Stop War & End Racism
Coal. v. District of Columbia, 846 F.3d 391, 314–15 (D.C. Cir. 2017).
But Rickabaugh has given us no reason to doubt that
Humanitarian Law Project applies to his challenge, which involves
complaints about both notice and enforcement. The State, in its
amicus brief, asserted that this court should examine
Rickabaugh’s conduct first based on Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982). Rickabaugh did
not dispute the State’s assertion in his reply brief.
20190501-CA 21 2021 UT App 36Lehi City v. Rickabaugh
455 U.S. at 499 (“[A] scienter requirement may mitigate a law’s
vagueness, especially with respect to the adequacy of notice to
the complainant that his conduct is proscribed.”). The statute
required that Rickabaugh act with “intent to intimidate, abuse,
threaten, harass, frighten, or disrupt the electronic
communications of another.” See Utah Code Ann. § 76-9-201(2)
(LexisNexis 2017). Thus, the statute’s focus is not placed on
Victim’s subjective reaction but on Rickabaugh’s intent and
Victim’s likely response. And Rickabaugh does not explain how
this intent requirement coupled with subsection (2)(b)’s
requirement that he “insult[], taunt[], or challenge[] the recipient
. . . in a manner likely to provoke a violent or disorderly
response” was insufficient to put him on notice that the statute
prohibited his conduct. Id. § 76-9-201(2)(b). 16
¶43 Furthermore, Rickabaugh’s conduct is unambiguously
proscribed under Utah Code section 76-9-201(2)(b). Rickabaugh
made direct contact with Victim through electronic
communication when he sent Victim at least thirty direct
messages via Facebook. In these messages, Rickabaugh told
Victim that he was a “bitch” and a “cunt,” called his mother “the
mother of a whore,” and warned that his wife would leave him.
Rickabaugh also told Victim, “NOW YOU ARE #1 ON MY LIST
16. Rickabaugh’s claim that application of subsection (2)(b)
depends on a subjective assessment of the victim’s reaction and
is thus “given to discriminatory enforcement” fails for the same
reason. Further, a “statute does not encourage arbitrary
enforcement simply because it allows prosecutors the
‘traditional prosecutorial discretion’ afforded them under nearly
all criminal statutes in the Utah Code ‘in determining what
charges to pursue’ and against whom.” State v. Rashid, 2021 UT
App 17, ¶ 27 (quoting State v. Angilau, 2011 UT 3, ¶ 28, 245 P.3d
745). “[U]se of that discretion . . . does not amount to arbitrary
enforcement[] [if] it [is] . . . not ‘based on classifications of race,
national origin, sex, religion, etc.’” Id. (quoting State v. Carter, 578
P.2d 1275, 1277 (Utah 1978)).
20190501-CA 22 2021 UT App 36Lehi City v. Rickabaugh
OF PEOPLE TO DESTROY!” and suggested that he would go
“TO THE NEXT LEVEL OF CUNT SMASHING!” These vulgar
and offensive messages were “insults, taunts, or challenges” that
were “likely to provoke a violent or disorderly response” within
the meaning of the statute. See id. And Rickabaugh’s threats to
“destroy” and “smash” Victim demonstrated his intent to
“intimidate, abuse, threaten, harass, [or] frighten” Victim. See id.Because the statute clearly proscribed Rickabaugh’s conduct, he
cannot complain that it is vague as to others. See Village of
Hoffman Estates, 455 U.S. at 495. We therefore reject his
vagueness challenge.
CONCLUSION
¶44 We are not persuaded that the electronic communication
harassment statute is unconstitutionally overbroad or vague.
Accordingly, we affirm Rickabaugh’s conviction.
20190501-CA 23 2021 UT App 36