[9] I must respectfully dissent to this opinion for the reason that I believe our statute, Laws 1978, ch. 121, § 1, now 21 O.S.Supp. 1980 § 1021[21-1021](4) is unconstitutionally overbroad and therefore void. The statute states: "Every person who wilfully: . . . speaks any words by means of a telephone to any person which would be offensive to decency or is calculated to excite vicious or lewd thoughts or acts . . . is guilty of a felony." Because the violation is not limited to cases where the listener does not consent to use of the proscribed language it would be reasonable to assume telling off-color jokes between friends or a sexually oriented conversation between lovers is a criminal offense. To outlaw obscene language where both the caller and listener have consented to its use is a violation of the parties' First Amendment constitutional right to freedom of speech.
[10] Although this particular issue has never been addressed by the U.S. Supreme Court, an analogous situation is found in Stanleyv. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), where the Supreme Court determined that mere private possession of materials defined as obscene could not constitutionally be made a crime. The *Page 1257 argument that a State may regulate all obscenity was rejected; the Court found that as a general rule obscenity was not protected in commercial regulation situations but did have First Amendment protection in the context of private possession. "It is now well established that the Constitution protects the right to receive information and ideas. . . This right to receive information and ideas, regardless of their social worth, . . . is fundamental to our free society."Stanley, 89 S.Ct. at 1247.1
[11] While the majority opinion appears to agree with this view, it chooses to read our statute to imply a limitation that the prohibited language be spoken to an unwilling listener. However, I find this judicial limitation of the statute to be contrary to the general rule of criminal statutory construction and therefore unacceptable. "It is an ancient rule of statutory construction and an oft-repeated one that penal statutes should be strictly construed against the government or parties seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed." Sutherland, Statutes andStatutory Construction, Vol. 3, § 59.03 [3-59.03] (footnotes omitted). "The words of a criminal statute must be such as to leave no reasonable doubt as to its meaning or the intention of the legislature, and where such doubt exists the liberty of the citizen is favored." Id. at § 59.04. See also State v.Hamilton, 298 P.2d 1073 (Okla. Cr. 1956). I would therefore find the statute unconstitutional for over-breadth.
. . . [T]he first amendment freedom of speech . . . prohibits the punishment of the mere use of obscene language in a telephone conversation. . . . . . [T]he danger of an overbroad statute lies in its possible chilling effect upon the exercise of a precious first amendment right by those who read its provisions. Keaton at 91.