dissenting:
An equally divided Supreme Court of Appeals of West Virginia affirmed the conviction and six-month sentence imposed on Hillery C. Thorne, Jr. The opinion of Chief Justice Miller, in which Justice McGraw joined, explains that W.Va. Code § 61-8-16(a)(4), as interpreted by the trial court and the opinion of the two justices who upheld Thorne’s conviction, is over-broad and abridges the freedom of speech secured by the first amendment. Chief Justice Miller’s opinion also explains the unconstitutionality of the statute’s application to Thorne. I subscribe to the sound reasoning of Chief Justice Miller’s opinion. See State v. Thorne, 333 S.E.2d 817, 821 (W.Va.1985).
I
Affirmance of the district court’s denial of a writ of habeas corpus rests on the mistaken notion that the statute prohibits conduct and not protected speech. Conversation is an essential element of the crime the statute punishes. Without some speech by the defendant there can be no conviction. The statute therefore is constitutional only if, as authoritatively construed by the West Virginia court, “it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.” Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Because the Supreme Court of Appeals of West Virginia could not muster a majority, it has not authoritatively construed the essential element of “conversation” to include only unprotected speech.* Nor has it authoritatively construed the statute to be limited to conduct, not speech.
The federal district court placed a gloss on the statute narrowing its meaning to punish conduct, not speech. A federal court, however, is unable authoritatively to construe the state statute. Gooding, 405 U.S. at 520, 92 S.Ct. at 1105. Consequently this judicial gloss does not insulate the statute from Thorne’s challenge that it is overbroad and abridges the freedom of speech protected by the first amendment.
The statute on its face permits the state to prosecute a person who has made repeated legitimate inquiries by phone, even if only protected speech ensued, whenever it is charged that the person intended to harass the recipient of the calls. Chief Justice Miller’s opinion describes many legitimate inquiries which if persistently pressed would run afoul of the statute because it is not limited to unprotected *246speech. See 333 S.E.2d at 824-25. Similarly, Judge Mansfield, concurring in Gormley v. Director, Connecticut Department of Probation, 632 F.2d 938, 944 (2d Cir.1980), illustrates how a statute prohibiting telephone calls made with “intent to annoy” infringes the exercise of free speech when it is not narrowed to exclude legitimate speech. As Judge Mansfield observed, “[T]he First Amendment protects more than just amiable communications .... A telephone harassment statute should be carefully tailored to avoid constitutional vulnerability on the ground that it needlessly penalizes free speech.” 632 F.2d at 945.
Precisely because the West Virginia statute is not carefully tailored, it is unconstitutional. It suffers the defect of over-breadth that made unconstitutional a Virginia telephone statute proscribing vulgar, profane, threatening, abusive, or indecent language. See Walker v. Dillard, 523 F.2d 3 (4th Cir.1975).
II
The statute is also unconstitutional as applied to Thorne. Thorne was not prosecuted for causing a telephone to continuously ring, using it to convey threats or obscenities, or making anonymous calls. Such conduct is proscribed by other sections of the statute. All four justices of the West Virginia Supreme Court of Appeals agreed that Thorne’s calls “started out in a civil manner.” See 333 S.E.2d at 819, 821. Without contradiction, Chief Justice Miller noted that the state’s witnesses “could only recall the substance of eight calls made over a three and one-half month period.” 333 S.E.2d at 821. The evidence discloses that Thorne “was making legitimate inquiries about his status as a student, his eligibility to take certain courses, and an accident on the Marshall University campus when his bicycle was destroyed.” 333 S.E.2d at 821. Thus Thorne could not be convicted under the federal telephone harassment statute which proscribes the making of repeated phone calls “during which conversation ensues, solely to ha-rass_” (emphasis added). 47 U.S.C. § 223(a)(1)(D) (1982).
Contrary to the gloss the district court put on the statute, the state trial court did not explain to the jury that the statute proscribed conduct, not speech. Throughout the trial the content of Thorne’s speech was emphasized as evidence of his intent to harass. The majority opinion correctly identifies the “harassing language” as Thorne’s description of university officials and employees as “pigs,” “racist pigs,” “bigot,” and “local trash,” and his reference to the former college president as “the head hog.” The other “harassing language” attributed to Thorne was his observation that “the law has a way of catching up with people and crushing them.”
The evidence supports the majority’s identification of the “harassing language.” The dean of student affairs testified that she was offended by the language about bigots and pigs and that she hung up the phone. The assistant dean of student development and director of the counseling center testified that he hung up after Thorne talked about pigs and claimed responsibility for the former president’s departure, saying “we’ve barbecued the big hog” and “the little piggys would be next.”
There can be no doubt that Thorne’s “harassing language” caused his conviction. It is also clear that Thorne’s vituperative description of the college officials, who are also public officials, is insufficient to sustain his conviction. In Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949), Court stated:
Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, [315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ], is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
Chaplinsky, to which the Court referred, dealt with “fighting words,” but no claim has ever been made that Thorne's name calling could be similarly characterized.
*247Time and again, the Supreme Court has extended the protection of the first amendment to persons who discomfited public officers. In Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664 (1969), the Court reversed the conviction of a person who used “a kind of very crude offensive method of stating a political opposition to the President.” In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982), the Court emphasized “[s]peeeh does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” Quite recently the Court has reaffirmed that speech that undoubtedly vexed the persons to whom it was directed is nevertheless protected by the first amendment. City of Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). This is true even when the speaker intends to distress the target of his outrageous language. See Hustler Magazine v. Falwell, — U.S. -, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
I respectfully dissent.
The West Virginia Constitution states that "[n]o decision rendered by the court shall be considered as binding authority upon any court, except in the particular case decided, unless a majority of the justices of the court concur in such decision.” W.Va. Const., Art. 8, § 4. Thorne has standing to raise the issue of over-breadth. See Broadrick v. Oklahoma, 413 U.S. 601, 611-15, 93 S.Ct. 2908, 2915-17, 37 L.Ed.2d 830 (1973).