(concurring):
I concur on the limited ground that the Connecticut telephone harassment statute, Conn.Gen.Stat.Ann. § 53a-183(a)(3) (Rev. 1958, Supp.1979), if narrowly construed by the Connecticut Supreme Court to apply only to speechless calls or to obscene or threatening calls of the type involved in this case, may be upheld if so construed. Unfortunately since appellant took no exception to the trial judge’s charge to the jury, the judge was never afforded the opportunity to so construe the statute and instruct the jury in terms of the narrower construction. However, I believe the Connecticut Supreme Court should be afforded the opportunity to construe the statute so that it will not penalize the exercise of First Amendment free speech rights.1 If it were *944not so construed, the statute would clearly be void for overbreadth.
No person enjoys being the victim of repeated speechless calls of the type presented here. The state has a legitimate interest in protecting persons against such unwarranted invasion of privacy by others. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Rowan v. Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). On the other hand, the First Amendment right of a person to communicate with another by telephone, even if the call may be considered “harassing” by the recipient, must also be respected.
Telephone calls by irate citizens to their Congressmen, by collectors seeking payment of legitimate bills overdue, by customers voicing to a seller dissatisfaction with goods or services purchased, and calls of like tenor, are likely to be annoying, even harassing, to the recipients. Such calls are usually made to influence the person called. No one could seriously question the caller’s free speech right under the First Amendment to engage in such telephone conversations. Yet, by prohibiting telephone calls made “with intent to annoy” and “in a manner likely to cause annoyance,” the Connecticut statute could be construed as prohibiting the exercise of this free speech. Thus, the fact that the statute also prohibits the mere making of telephone calls where no speech follows hardly saves it from unconstitutional overbreadth. It is no comfort to the citizen telephoning his Congressman or to the defrauded consumer calling the swindler to know that the statute was not intended to apply to their telephone calls if . its language plainly does so. The mere existence of a statute prohibiting such obviously lawful exercise of a free speech right has a chilling effect, particularly if enforcement is threatened by the recipient of a call.
Labelling the statute as one prohibiting “conduct” does not resolve this constructional dilemma. In most cases the “conduct” punished is the oral communication rather than the ringing of the telephone bell. The statute is not limited to the mere making of speechless telephone calls; were that the case, its constitutionality would be upheld. See, Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1964). Cf., Palma v. Powers, 295 F.Supp. 924, 941 (D.C.Ill.1969) (telephone service is not speech protected by the First Amendment). Indeed a statute prohibiting obscene, threatening, or speechless calls, made with intent to harass, would probably pass constitutional muster. But if the statute here were construed, as it easily could be, to prohibit any telephone call made “with intent to annoy,” which had such effect, it would patently violate the First Amendment. The overbreadth would not only be real, but substantial. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973).
Nor do any of the authorities relied upon by the majority support the view that such a potentially overbroad statute is constitutional on its face; on the contrary, most of the decided cases are to the contrary. Although the Third Circuit, in United States v. Lampley, 573 F.2d 783 (3d Cir. 1978), upheld the federal telephone harassment statute, 47 U.S.C. § 223, it did so against a claim of vagueness, not overbreadth. Nothing in the decision supports the majority’s citation of it as rejecting an overbreadth challenge, as is made here. In contrast, several courts have struck down similar telephone harassment statutes as overbroad. See, e. g., People v. Klick, 66 Ill.2d 269, 5 Ill.Dec. 858, 859, 362 N.E.2d 329 (1977) (Illinois statute providing that “A person commits disorderly conduct when he knowingly: . (2) with intent to annoy another, makes a telephone call, whether or not a conversation thereby ensues.”); State v. Dronso, 90 Wis.2d 149, 279 N.W.2d 710 (1979) (Wisconsin statute providing that one is guilty of disorderly conduct if “[wjith intent to annoy another, [he] makes a telephone call, whether or not a conversation ensues.”). See also, Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975) (Colorado statute providing that one commits harassment if, “with intent to harass, annoy or alarm another person, he: . . . communi*945cates anonymously or otherwise, by telephone, telegraph, mail or any other form of communication in a manner likely to harass or cause alarm.”).
The state may not abridge one’s First Amendment freedoms merely to avoid annoyances. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).
“The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971).
Moreover, the First Amendment protects more than just amiable communications. See, Norwell v. City of Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1948); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). A telephone harassment statute should be carefully tailored to avoid constitutional vulnerability on the ground that it needlessly penalizes free speech.
Applying these principles here, I am forced to conclude that, depending on how it is construed by the Connecticut Supreme Court, Conn.Gen.Stat. § 53a-183(a)(3) (Rev. 1958, Supp.1979), might be constitutionally vulnerable for overbreadth. Since we are precluded from construing this state statute, Gooding v. Wilson, 405 U.S. at 520, 92 S.Ct. at 1105, and a narrow construction by the Connecticut Supreme Court would lead to the statute’s being upheld as applied to the facts of this case, I concur in the result reached by the majority. Should the Connecticut Supreme Court, however, interpret the statute broadly to encompass constitutionally protected free speech, as distinguished from obscene, threatening or speechless telephone calls made with intent to harass the recipient, I would then feel compelled to declare the statute unconstitutional on its face.
. The Connecticut Supreme Court denied certification without opinion, State v. Gormlev, 174 Conn. 803, 382 A.2d 1332 (1978). This denial reflects nothing on the Connecticut Supreme Court’s opinion of the merits of this case. “[A] denial of certification does not necessarily indicate our approval either of the result reached by the Appellate Division or of the opinion rendered by it.” State v. Chisholm, 155 Conn. 706, 707, 236 A.2d 465, 466 (1968). Accord, State v. Doscher, 172 Conn. 592, 376 A.2d 359 (1977).