United States Court of Appeals, Fourth CircuitApr 25, 1979
596 F.2d 1205 (4th Cir. 1979)

No. 78-6148.

Argued April 6, 1979.

Decided April 25, 1979.

Marvin Schiller, Asst. Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N.C., on brief), for appellant.

George S. Daly, Jr., Charlotte, N.C. (Hugh G. Casey, Jr., Charlotte, N.C., on brief), for appellee.

Appeal from the United States District Court for the Western District of North Carolina.

Before WINTER, BUTZNER and RUSSELL, Circuit Judges.

After consideration of the record and the arguments of the parties, both oral and written, we think that the district court correctly granted a writ of habeas corpus. The district court held that §§ 14-196(a)(1) and (2), N.C.Gen.Stat. (1969), under which petitioner was convicted, violated the first amendment to the Constitution of the United States and were therefore invalid. These statutes proscribe profane, vulgar, lewd and threatening communications over the telephone. As we view the record, particularly the term of his probation, we think that petitioner was convicted only under § 14-196(a)(1); and as to it we affirm on the district court's memorandum opinion of May 25, 1977, and its order of February 20, 1978. See Radford v. Webb, 446 F. Supp. 608 (W.D.N.C. 1978).