(dissenting).
I believe the words “harass” and “harassing” are unconstitutionally vague as employed in Code § 729.1.
As the majority opinion acknowledges, this defendant has standing to mount a facial attack upon the statute because it bears upon First Amendment rights. In determining the merits of this attack, we need not decide whether this defendant’s actual conduct was prohibited. He is permitted to challenge the statute on its face not because his own right of free expression has been violated “but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 840 (1973). See Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 2568-2569, 45 L.Ed.2d 648, 660 (1975).
Thus the question is whether the statute on its face “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * * Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). Criminal responsibility should not attach to anyone under a penal statute which does not give fair warning of what is prohibited and provide a normative standard for its enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227-228 (1972).
The vagueness test can best be understood and applied in light of the evils it seeks to prevent:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms’. Uncertain meanings inevitably lead citizens to ‘ “steer far wider of the unlawful zone” * * * than if the boundaries of the forbidden areas were clearly marked’.” Id., 408 U.S. at 108-109, 92 S.Ct. at 2298-2299, 33 L.Ed.2d at 227-228.
*310Even after the effort of the majority opinion to explain the meaning of the terms “harass” and “harassing” in § 729.1, I do not believe the statute can survive defendant’s vagueness attack.
The statute is broadly drawn. It defines “property” as “any land, dwelling, building, conveyance, vehicle, or other temporary or permanent structure whether publicly or privately owned”. § 729.1(1), The Code. It purports to put public places in the same category as private places in defining what constitutes a criminal trespass. The statute does not distinguish between the quality of one’s right to enter or remain in a public place and one’s right to enter or remain in a private place. However, this distinction is important when First Amendment rights are involved. When private property is not ordinarily open to the public, access to it for the purpose of exercising First Amendment rights may be denied altogether. When private property is dedicated to public use or public property is involved, access to it for the purpose of exercising First Amendment rights may not unreasonably be denied, although the exercise of First Amendment rights may be regulated so as to prevent interference with the public use to which the property is ordinarily put. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). The vagueness challenge to the terms “harass” and “harassing” in § 729.1 raises First Amendment questions. The failure of the statute to recognize the distinction between exercise of First Amendment rights in public and private places contributes to the uncertainty created by its use of those terms.
Next, in defining a punishable “trespass”, the statute creates four categories of what it describes as “acts”. Only two of these categories, §§ 729.1(2)(a) and 729.1(2)(d), use the terms “harass” or “harassing”. Insofar as pertinent here, the gist of an offense under § 729.1(2)(a) is entering upon or in property without legal justification, or without permission, with the intent to harass anything animate or inanimate thereon or therein, without permission. What is made punishable as a trespass is the entering of property in these circumstances with an intent to harass. The “intent to harass” is not an act but the mental element of the offense.
Under § 729.1(2)(d) the presence on the property involved is presumably lawful. Insofar as relevant here, that provision permits conviction for (1) “[bjeing upon or in property” and (2) “harassing * * * thereon or therein anything animate or inanimate”, without permission. No act similar to a common-law trespass is required. Cf. Mann v. Des Moines By. Co., 232 Iowa 1049, 1056, 7 N.W.2d 45, 50 (1942). What is made punishable as a trespass is “harassing” while lawfully present on the property involved. The offense consists entirely of “harassing” while there.
Interpretation of the word “harass” in the majority opinion falls far short of providing an ascertainable standard by which to determine what conduct the statute purports to proscribe in its use of the word. The majority’s interpretation does not support its conclusory assertion that the term does not infringe First Amendment rights.
The majority opinion adopts a dictionary definition of harass. That definition, from Webster’s Third New International Dictionary, p. 1031, includes several alternatives which are difficult to reconcile. Moreover, the majority contributes to the vagueness problem by the very multiplicity of approved alternative meanings. For example, one definition is “to lay waste”. The dictionary adds parenthetically “(as an enemy’s country) RAID, HARRY (hostile Indians [harassed] the frontier)”. This definition suggests the term refers to physical damage inflicted upon inanimate property.
The next definition is “to worry and impede by repeated attacks”. The dictionary adds as an illustration “(his guerilla forces cooperated with United States parachute troops in [harassing] the Japanese)”. Al*311though this definition suggests the term refers to physical attacks upon animate beings, we are left to wonder whether the intent of such attacks may be limited to a mental or emotional reaction instead of physical damage.
Another definition is “to tire out”. The dictionary adds “(as with physical or mental effort): EXHAUST, FATIGUE (I have been [harassed] with the toil of verse — William Wordsworth).” This meaning suggests harassment can consist of mere mental effort which results in fatigue. Apparently Wordsworth felt harassed by his own work. Here we are left to wonder whether • a petty bureaucrat might not believe himself harassed any time a citizen’s demand or request discomforts him.
Finally, the dictionary supplies “to vex, trouble, or annoy continually or chronically”. It adds “(as with anxieties, burdens, or misfortune): PLAGUE, BEDEVIL, BADGER (sciatica occasionally [harassed] her— Arnold Bennett) ([Harass] the pilot and thus keep him in a constant state of * * upset — H. G. Armstrong) ([harassed] * * by lack of funds — Henry Miller) (begins to [harass] her with questions — Donald Hei-ney) syn. see WORRY.” In this meaning the word sweeps in communicative as well as ordinary conduct, and the resulting vexation, trouble, or annoyance is mental or emotional, not physical. This definition does not impose any limits on the communications or acts which are sufficient to vex, trouble or annoy. A provision like § 729.-l(2)(d) which permits prosecution for “harassing” another while lawfully present in a public place is thus a sword in the hands of any official or other person who deems himself “vexed”, “troubled”, “annoyed”, or “worried” by the conduct of a citizen.
As defined in the majority opinion, the words harass and harassing have several alternative and inconsistent meanings. The majority assures us no vagueness problem exists because a common thread joins these definitions: “Each alternative involves some overt, intentional, persistent action,” so that “Unknowing harassment is precluded.” This is no answer to the problem. At most, the opinion tells us something about what harassment is not; it does not tell us what it is. Saying there is no problem because what is done which is punishable must be done on purpose fails utterly to identify what it is that should not be done. Neither the statute nor the majority opinion tells us what “overt, intentional, persistent action” is punishable. Men of common intelligence must still guess at the statute’s meaning and differ as to its application.
All of the evils of vague statutes noted in Grayned v. City of Rockford, supra, attend the use of the words harass and harassing in § 729.1.
No standard of conduct is specified. In this respect the statute as interpreted in the majority opinion is indistinguishable from the ordinance in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). The Cincinnati ordinance made it a criminal offense for three or more persons to assemble in certain public places and “conduct themselves in a manner annoying to persons passing by”. In an effort to save the ordinance, the Ohio Supreme Court adopted a dictionary definition of “annoy” as “to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.” 21 Ohio St.2d 66, 69, 255 N.E.2d 247, 249. Just as with the statute in the present case, neither the ordinance nor the state court’s interpretation of it indicated upon whose sensitivity a violation would depend, whether it would be “the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man”. This problem did not involve a distinction between intentional and inadvertent conduct, nor did it involve mere imprecision in providing a standard. As with the statute in the present case, the ordinance provided no standard at all:
“Conduct that annoys some people does not' annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative *312standard, but rather in the sense that no standard of conduct is specified at all. As a result, ‘men of common intelligence must necessarily guess at its meaning’.” Coates v. Cincinnati, supra, 402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217.
The Supreme Court in Coates did not base its decision upon the fact that annoyance could be inadvertent. The asserted significance of this factor surfaces for the first time in the majority opinion in the present case.
Besides the fact this distinction fails to meet the actual basis of the decision in Coates, it is fallacious. The same authority relied upon by the majority in defining “harass”, Webster’s Third New International Dictionary, also defines “annoy”, at page 87. That definition includes:
“to irritate with a nettling or exasperating effect esp. by being a continuous or repeatedly renewed source of vexation. PROVOKE, VEX * * *.
“to harass esp. by quick and brief attacks (dogs [annoying] a cornered bear) (infiltrating behind the lines so as to [annoy] the enemy replacement) syn. VEX, IRK, BOTHER, WORRY”
In light of these meanings, it is difficult to see how annoyance would rest any more or any less upon “some overt, intentional action” than harassment.
Nor should the majority take comfort from the opinion of the Oregon Court of Appeals in State v. Sallinger, 11 Or.App. 592, 504 P.2d 1383 (1972). That case dealt with a challenge to an Oregon statute defining a crime of “harassment”. Insofar as relevant here, the statute , said a person was guilty of harassment “if, with intent to harass, annoy or alarm another person, he * * * subjects another to offensive physical contact”. The court held the “intent to harass, annoy, or alarm” constituted the mental element of a crime which was complete only with physical contact “substantially the same as a strike, shove or kick”. 11 Or.App. at 599, 504 P.2d at 1386.
In this context the Oregon statute specifically articulated the conduct which was proscribed. It provided an objective standard. The statute itself was a purported definition of harassment; it did not leave one wondering what conduct was outlawed.
The majority opinion’s summary conclusion that § 729.1’s use of “harass” and “harassing” does not inhibit First Amendment freedoms is also unjustified. This conclusion depends wholly upon the premise that the First and Fourteenth Amendments do not afford the same kind of freedom to those who communicate ideas by conduct as to those who communicate ideas by pure speech. Although this premise is accurate so far as it goes, it does not support the conclusion. Nonviolent conduct employed as symbolic speech is protected First Amendment activity. Tinker v. Des Moines Community School Disk, 393 U.S. 503, 508-509, 89 S.Ct. 733, 737-738, 21 L.Ed.2d 731, 739 (1969); State v. Kool, 212 N.W.2d 518 (Iowa 1973). Public places provide a traditional forum for activities protected by the First Amendment. Citizens are constitutionally assured rights not only of free speech but of free assembly and to petition for redress of grievances. These rights are subject only to reasonable regulations which may be imposed to prevent interference with the public use to which the property is dedicated. See Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). As these cases make clear, regulation by vague statutes or ordinances infringes the protected First Amendment rights. Regulations must be carefully, precisely, and narrowly drawn so they do not sweep in constitutionally protected activities. They must give fair notice of what is prohibited. When citizens exercise First Amendment rights in public places in a manner which does not interfere with the use to which the property is ordinarily put, they may not be punished simply because their conduct is provocative, vex*313ing, annoying, worrying, discomforting, irritating, tiring, exhausting, badgering, bede-villing, harrying, or upsetting to someone else. Because of the uncertainty about just what “overt intentional action” is proscribed, the majority’s limitation of prosecutions based upon “intent to harass” or “harassing” does not obviate the chilling effect § 729.1 inevitably has upon the exercise of First Amendment freedoms. The words are too vague to give notice of the conduct prohibited.
In its use of those vague terms, the statute strikes at the heart of a citizen’s right of free speech, right of assembly, and right to carry a grievance to the seat of government, assured by the First Amendment. This situation is like that in Terminiello v. Chicago, 837 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). There the Illinois Supreme Court had sustained the constitutionality of a Chicago breach of the peace ordinance which permitted conviction upon proof of speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance”. In reversing the case, the United States Supreme Court said:
“The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 [284], it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. 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, supra (315 U.S. pp. [568] 571, 572, 62 S.Ct. 766, 86 L.Ed. [1031], 1034, 1035), 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.” 337 U.S. at 4, 69 S.Ct. at 895-896, 93 L.Ed. at 1134.
Statutes and ordinances which regulate conduct must not permit punishment of the fair exercise of First Amendment rights. Brown v. Louisiana, Cox v. Louisiana, Edwards v. South Carolina, supra.
I would sustain defendant’s facial vagueness attack on § 729.1 based upon use of the word “harass” in § 729.1(2)(a) and the word “harassing” in § 729.1(2)(d). The effect would be to excise those words from the statute. State v. Aldrich, 231 N.W.2d 890, 895-896 (Iowa 1975), and citations. The result would be a viable statute.
Since the trial court erred in permitting the jury to find defendant guilty on the basis of the statute as it presently reads, I would reverse and remand for new trial under the statute with the words “harass” and “harassing” omitted.
MASON and RAWLINGS, JJ., join in this dissent.