overbreadth challenge in Utah

2021But 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.

2011See United States v. Williams, 553 U.S. 285, 292, 304 , 128 S.Ct. 1830 , 170 L.Ed.2d 650 (2008).

2004See Willden, 768 P.2d at 457 (“There is no question that Willden meets this standing test.

1990Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 , 102 S.Ct. 1186, 1191 , 71 L.Ed.2d 362 (1982); see New York v. Ferber, 458 U.S. 747, 769 , 102 S.Ct. 3348, 3361 , 73 L.Ed.2d 1113 (1982) (only substantially overbroad statute may be invalidated on its face); Provo City Corp. v. Willden, 768 P.2d 455, 458 (Utah 1989). 10 If it does not, then the overbreadth challenge must fail and we should then examine the facial vagueness challenge.

2002See Bigelow v. Virginia, 421 U.S. 809, 814-17 , 95 S.Ct. 2222, 2229-30 , 44 L.Ed.2d 600 (1975). 4 .

2002See Bigelow v. Virginia, 421 U.S. 809, 814-17 , 95 S.Ct. 2222, 2229-30 , 44 L.Ed.2d 600 (1975). 4 .

2021Thus, we express no opinion on the matter. 20190501-CA 11 2021 UT App 36 Lehi 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 tha

1989Nevertheless, the overbreadth doctrine is “strong medicine,” and we have “employed it with hesitation, and then only as a last resort.” State v. Jordan, 665 P.2d 1280, 1283 (Utah 1983); Broadrick v. Oklahoma, 413 U.S. at 613 , 93 S.Ct. at 2916 , 37 L.Ed.2d at 841 .

2021As 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 App. 1997), superseded by statute on other grounds as recognized by Baird v. Baird, 2014 UT 08 , 322 P.3d 728 ; cf.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.

2002"In the First Amendment area, the overbreadth doctrine gives a defendant standing to challenge a statute on behalf of others not before the court even if the law could be constitutionally applied to the defendant." Salt Lake City v. Lopez, 935 P.2d 1259 , 1263-64 n. 2 (Utah Ct.App.1997).

2021Thus, we express no opinion on the matter. 20190501-CA 11 2021 UT App 36 Lehi 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 tha

2021Thus, we express no opinion on the matter. 20190501-CA 11 2021 UT App 36 Lehi 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 tha

2004The overbreadth doctrine, therefore, cannot be properly relied upon to invalidate a portion of a statute under which a defendant has not been charged or convicted: “ When a line of excision is available, one standing within the zone which a truncated statute might reach may be barred from setting up the statute’s overbreadth as to others.’ ” Id. (quoting Note, The First Amendment Overbreadth Doctrine, 83 Harv.

1989Nevertheless, the overbreadth doctrine is “strong medicine,” and we have “employed it with hesitation, and then only as a last resort.” State v. Jordan, 665 P.2d 1280, 1283 (Utah 1983); Broadrick v. Oklahoma, 413 U.S. at 613 , 93 S.Ct. at 2916 , 37 L.Ed.2d at 841 .

2021Thus, we express no opinion on the matter. 20190501-CA 11 2021 UT App 36 Lehi 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 tha

2021Thus, we express no opinion on the matter. 20190501-CA 11 2021 UT App 36 Lehi 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 tha

2021A 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

2021A 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

2021See, 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. Alexande

2021The overbreadth doctrine “is strong medicine,” employed only “as a last resort.” Thompson, 2004 UT 14, ¶ 10 (cleaned up).

2021Thus, we express no opinion on the matter. 20190501-CA 11 2021 UT App 36 Lehi 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 tha

2021A 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

2021See, 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. Alexande

2019See, e.g. , Gillmor v. Summit Cty. , 2010 UT 69 , ¶ 27, 246 P.3d 102 (contrasting facial and as-applied constitutional challenges); Bushco v. Utah State Tax Comm'n , 2009 UT 73 , ¶ 49, 225 P.3d 153 (explaining the overbreadth doctrine as a basis for a facial challenge on First Amendment grounds); see also United States v. Stevens , 559 U.S. 460 , 472, 130 S.Ct. 1577 , 176 L.Ed.2d 435 (2010) (contrasting "typical" facial challenge requirements with an overbreadth challenge).

2019See, e.g. , Gillmor v. Summit Cty. , 2010 UT 69 , ¶ 27, 246 P.3d 102 (contrasting facial and as-applied constitutional challenges); Bushco v. Utah State Tax Comm'n , 2009 UT 73 , ¶ 49, 225 P.3d 153 (explaining the overbreadth doctrine as a basis for a facial challenge on First Amendment grounds); see also United States v. Stevens , 559 U.S. 460 , 472, 130 S.Ct. 1577 , 176 L.Ed.2d 435 (2010) (contrasting "typical" facial challenge requirements with an overbreadth challenge).

2019See, e.g. , Gillmor v. Summit Cty. , 2010 UT 69 , ¶ 27, 246 P.3d 102 (contrasting facial and as-applied constitutional challenges); Bushco v. Utah State Tax Comm'n , 2009 UT 73 , ¶ 49, 225 P.3d 153 (explaining the overbreadth doctrine as a basis for a facial challenge on First Amendment grounds); see also United States v. Stevens , 559 U.S. 460 , 472, 130 S.Ct. 1577 , 176 L.Ed.2d 435 (2010) (contrasting "typical" facial challenge requirements with an overbreadth challenge).

2019See, e.g. , Gillmor v. Summit Cty. , 2010 UT 69 , ¶ 27, 246 P.3d 102 (contrasting facial and as-applied constitutional challenges); Bushco v. Utah State Tax Comm'n , 2009 UT 73 , ¶ 49, 225 P.3d 153 (explaining the overbreadth doctrine as a basis for a facial challenge on First Amendment grounds); see also United States v. Stevens , 559 U.S. 460 , 472, 130 S.Ct. 1577 , 176 L.Ed.2d 435 (2010) (contrasting "typical" facial challenge requirements with an overbreadth challenge).

2003"The usual approach is to wait until a statute is applied in the suspected and offensive way." Graff, 986 F.2d at 1072 (citing FW/PBS, Inc., 493 U.S. at 223 , 110 S.Ct. at 603 ); see also City of Lakewood, 486 U.S. at 774 , 108 S.Ct. at 2153 (White, J., dissenting). *340 "[W]e cannot sustain [a] facial attack unless the ordinance is `substantially overbroad,' judged in relation to the statute's plainly legitimate sweep." FW/PBS, Inc., 493 U.S. at 259 , 110 S.Ct. at 622 (Scalia, J., dissenting) (citations omitted). ¶ 19 Thus, there are two ways in which an appellant can attain standing: (1) He

2003"The usual approach is to wait until a statute is applied in the suspected and offensive way." Graff, 986 F.2d at 1072 (citing FW/PBS, Inc., 493 U.S. at 223 , 110 S.Ct. at 603 ); see also City of Lakewood, 486 U.S. at 774 , 108 S.Ct. at 2153 (White, J., dissenting). *340 "[W]e cannot sustain [a] facial attack unless the ordinance is `substantially overbroad,' judged in relation to the statute's plainly legitimate sweep." FW/PBS, Inc., 493 U.S. at 259 , 110 S.Ct. at 622 (Scalia, J., dissenting) (citations omitted). ¶ 19 Thus, there are two ways in which an appellant can attain standing: (1) He

2003"The usual approach is to wait until a statute is applied in the suspected and offensive way." Graff, 986 F.2d at 1072 (citing FW/PBS, Inc., 493 U.S. at 223 , 110 S.Ct. at 603 ); see also City of Lakewood, 486 U.S. at 774 , 108 S.Ct. at 2153 (White, J., dissenting). *340 "[W]e cannot sustain [a] facial attack unless the ordinance is `substantially overbroad,' judged in relation to the statute's plainly legitimate sweep." FW/PBS, Inc., 493 U.S. at 259 , 110 S.Ct. at 622 (Scalia, J., dissenting) (citations omitted). ¶ 19 Thus, there are two ways in which an appellant can attain standing: (1) He

2003"The usual approach is to wait until a statute is applied in the suspected and offensive way." Graff, 986 F.2d at 1072 (citing FW/PBS, Inc., 493 U.S. at 223 , 110 S.Ct. at 603 ); see also City of Lakewood, 486 U.S. at 774 , 108 S.Ct. at 2153 (White, J., dissenting). *340 "[W]e cannot sustain [a] facial attack unless the ordinance is `substantially overbroad,' judged in relation to the statute's plainly legitimate sweep." FW/PBS, Inc., 493 U.S. at 259 , 110 S.Ct. at 622 (Scalia, J., dissenting) (citations omitted). ¶ 19 Thus, there are two ways in which an appellant can attain standing: (1) He

2001However, in Massachusetts v. Oakes, Justices Scalia and Blackmun asserted, in a concurring opinion written by Justice Scalia, that they would reject an overbreadth challenge to a Massachusetts statute prohibiting, with exceptions, a person from "hirfing}, coerc[ing], solicit[ing] or enticing], employ[ing], procur[ing], us[ing}, caus[ing], encouragling], or knowingly permit[iing]" a minor to "pose or be exhibited in a state of nudity." 491 U.S. 576, 579, 588-90 , 109 S.Ct. 2633 , 105 L.Ed.2d 493 (1989).

2001However, in Massachusetts v. Oakes, Justices Scalia and Blackmun asserted, in a concurring opinion written by Justice Scalia, that they would reject an overbreadth challenge to a Massachusetts statute prohibiting, with exceptions, a person from "hirfing}, coerc[ing], solicit[ing] or enticing], employ[ing], procur[ing], us[ing}, caus[ing], encouragling], or knowingly permit[iing]" a minor to "pose or be exhibited in a state of nudity." 491 U.S. 576, 579, 588-90 , 109 S.Ct. 2633 , 105 L.Ed.2d 493 (1989).