OBSCENE, THREATENING OR ANNOYING TELEPHONE CALLS
Making obscene, threatening or annoying phone calls is seen as a form of harassment in Nevada. Convictions for making such phone calls can carry harsh fines and even possible jail time.
What is the legal definition of Obscene, Threatening or Annoying Telephone calls?
NRS 201.255 defines Obscene, threatening or annoying telephone calls.
NRS 201.255 – Penalties.
- Any person who willfully makes a telephone call and addresses any obscene language, representation or suggestion to or about any person receiving such call or addresses to such other person any threat to inflict injury to the person or property of the person addressed or any member of the person’s family is guilty of a misdemeanor.
- Every person who makes a telephone call with intent to annoy another is, whether or not conversation ensures from making the telephone call, guilty of a misdemeanor.
- Any violation of subsections 1 and 2 is committed at the place at which the telephone call or calls were made and at the place where the telephone call or calls were received, and may be prosecuted at either place.
Wouldn’t phone calls be covered by the First Amendment freedom of speech?
Freedom of speech protects a broad range of action, but this is one situation where it does not apply. Specifically, speech used to harass another person is not protected.
So, then what is considered an “obscene” phone call?
NRS 201.255 criminalizes telephone calls that address obscene language, representation or suggestion to or about any person receiving the call.
Obscene language can be difficult to define. Prosecutors use a 3-part test to determine whether something is “obscene”
- After applying the standards of the local community, an average person would find that the language, taken as a whole, appeals to prurient interests;
- Taken as a whole, the language lacks adequate serious artistic, literary, political or scientific value;
- The language depicts or describes, in an offensive manner, either:
- Ultimate sexual acts, whether normal or perverted, or actual or simulated; or
- Masturbation, excretory functions, sadism or masochism.
I don’t really understand what all of that means?
Don’t worry, that’s not uncommon. As with most statutes, the language is intentionally vague to allow prosecutors leeway to decide when to charge the crime.
Breaking down the first element, there are two vague aspects: “standards of the community,” and “prurient” interests.
“Standards of the community” is not as confusing as it appears. Nevada is a large state, with a wide variety of communities, so this law allows for different morals among those communities. The “community” of Las Vegas may have a different idea of what is considered offensive than the “community” of Lake Tahoe, or Elko, or Carson City. In other words, you cannot be convicted if your language is common to the area where it was used.
“Prurient” is an uncommon word that most people outside the legal profession will never even hear, let alone understand the definition. Quite simply, it refers to an interest in sex that is morbid, degrading, and/or unhealthy. Clearly, this is a vague definition as everyone’s definition of an “unhealthy” interest in sex would likely be different. This is where the “standard of community” aspect becomes critical, as determining what is “prurient” is determined by what the general consensus of the community would be.
Please Note: the “standards of the community” apply both to the community where the call originated and to the community where it was received. If either community would consider the language appealing to the “prurient” interests, then the language violates this statute.
The second element is a little clearer, at it basically requires that the language lacks serious artistic, literary, political or scientific value. This element is more appropriate for conduct or materials (movies, print, etc.), but essentially relies on whether the language or conduct can be shown to have been done in the interest of art, literature, political or scientific value. This element will always be determined on a case-by-case basis, and is heavily determined by the specific facts of your case. As former Supreme Court Justice Potter Stewart was famously quoted as saying, describing “obscene” may never be fully possible, but “I know it when I see it.”
The final element is the easiest to understand because it is the least vague. Any language that depicts or describes sexual acts of any kind, whether actual or simulated, or which depict masturbation, excretory functions, sadism or masochism will satisfy this element.
Okay, then what would be considered a “threatening” phone call?
Any phone call that consists of threats to the person, property, or family of the person receiving the call is a “threatening” phone call.
And “annoying” phone calls? That seems extremely vague…
It is vague. Generally, this part of the statute can be seen as any type of “harassing” phone call that is meant to annoy the recipient. What is perhaps most important about this particular type of call is that it does not matter whether a conversation ever takes place, the simple act of placing the call violates the statute. In other words, making repeated phone calls to someone to harass or annoy them would create multiple violations of this statute even if the recipient ignored every call.
What are the possible penalties?
The crime of Obscene, Threatening or Harassing Phone Calls is a misdemeanor in Nevada meaning that it carries possible penalties of:
- Up to 6 months in a county jail; and/or
- Possible fines up to $1,000.
Please Note: as already pointed out above, a pattern of conduct wherein you repeatedly make obscene, threatening or harassing phone calls to someone can be prosecuted as multiple offenses, which means that you may be facing the above penalties for each such phone call that you made.
Are there any Defenses?
Yes, there are always defenses when a statute is as vague as this one. Some of the possible defenses include:
- No Obscenity – As discussed above, the definition of “obscene” is determined by the community that you live in (or where the recipient lives). Generally speaking swearing and other ‘off-color’ language is not considered obscene. If your attorney can show that your language was not “obscene” by the standards of the community, then the charges against you should be dropped or dismissed.
- No Threat – One of the most difficult aspects of this crime is proving that it ever occurred. If you can show that there is no proof that you “threatened” the recipient of the phone call, or that there was no threat made, then the charges against you should be dropped or dismissed.
- No Intent to Annoy – As noted above, part of the element of an “annoying” phone call is that you actually intended to annoy. If you can show that you had an intent other than to simply annoy or harass the recipient, then the charges against you should be dropped or dismissed.
- Lack of Evidence/False Allegations – Charges for making obscene, threatening or annoying phone calls are often levied out of anger, revenge, or misunderstanding. As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” Without a recording of the phone call, it is unlikely that the prosecutor can prove that the phone call occurred the way they claim. If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
What should I do if I’ve been charged with Making an Obscene, Threatening or Annoying phone call?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.