IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 51866-2024
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, February 2026 Term
)
v. ) Opinion filed: September 1, 2026
)
NICHOLAS JAMES ORR, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
)
Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
Bannock County. Rick Carnaroli, District Judge.
The decision of the district court is affirmed.
Erik R. Lehtinen, State Appellate Public Defender, Boise, for Appellant. Kierra W.
Mai argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Kale D. Gans
argued.
ZAHN, Justice.
This case concerns the constitutionality of Idaho’s witness intimidation statute, Idaho Code section 18-2604. Nicholas James Orr made phone calls to the alleged victim in a domestic battery case, S.O., during which he discussed S.O.’s potential testimony. The State then charged Orr with intimidating a witness in violation of Idaho Code section 18-2604(3). Orr moved to dismiss the charge and argued that section 18-2604(3) violates the First Amendment’s free speech provision because it is facially overbroad and unconstitutional as applied to Orr’s conduct. The district court denied Orr’s motion to dismiss and concluded the statute did not infringe upon protected speech. Orr entered a conditional guilty plea to the intimidation charge and reserved his right to appeal the denial of his motion to dismiss.
On appeal, Orr argues that the use of the phrase “any manner” in section 18-2604(3) is impermissibly overbroad and criminalizes protected speech in violation of the First Amendment.
1
Orr further argues the statute is unconstitutional as applied to him because he was charged based “solely on his spoken word” and that the First Amendment protects what he describes as requests that S.O. provide additional information in her testimony.
For the reasons discussed below, we affirm the district court’s denial of Orr’s motion to dismiss because there is no First Amendment protection for speech incidental to criminal activity. The conduct underlying Orr’s witness intimidation charge concerned speech that would constitute subornation of perjury in violation of Idaho law. As such, it constituted speech incidental to criminal conduct and was not protected by the First Amendment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Orr was arrested for domestic battery against S.O. and placed in the Bonneville County Jail. Subsequently, a criminal no contact order was issued prohibiting Orr from contacting S.O. Orr concedes that he received notice of the order the day it was issued. Despite this, he made multiple phone calls to S.O. while he was in jail. During these phone calls, Orr made a variety of statements related to the pending domestic battery charge, including “[y]ou got to try and fix this,” and requests to contact his attorney, to attend his preliminary hearing, and to “revise [her] story.” During these calls, Orr also told S.O. that he had nothing to live for, to tell his daughter he said goodbye, and that he will get out of jail “one way or another even if it’s in a body bag . . . .”
The State later filed criminal charges against Orr related to the phone calls. The Information accused Orr of one count of witness intimidation in violation of Idaho Code section 18-2604(3) and five counts of violation of a no contact order in violation of Idaho Code section 18-920. Specifically, with regard to the witness intimidation charge, the Information alleged that:
Nicholas James Orr, on or about June 11, 2023 through June 26, 2023 in the County
of Bannock, State of Idaho, did, by direct force, indirect force, threat, or by any
manner, willfully attempt to deter, harass, threaten, impede, influence, intimidate,
and/or prevent [S.O.], a person [Orr] believes/believed to be a witness and/or
potential witness from testifying freely, fully, and truthfully at a criminal
proceeding through phone conversations.
Orr moved to dismiss the witness intimidation charge pursuant to Idaho Criminal Rule 48 and the First Amendment of the United States Constitution. Relevant to this appeal, Orr argued that section 18-2604(3) was facially unconstitutional in violation of the First Amendment because the “by any manner” clause of the statute criminalized a substantial amount of protected expression. Orr also asserted that section 18-2604(3) was unconstitutional as applied to him because the phone calls were not threats but rather pleas “for [S.O.] to tell a more complete story
2
that would validate a self-defense claim by [Orr].” As such, his speech was lawful and the statute was unconstitutional as applied to his protected speech.
The State opposed Orr’s motion, arguing that: (1) Orr had not demonstrated that the statute was facially unconstitutional because he failed to demonstrate that the statute was substantially overbroad; and (2) Orr failed to demonstrate that it was unconstitutional as applied because Orr’s statements, when viewed in light of the pending domestic battery charge and prior “relational violence,” were made to threaten or deter S.O. from testifying freely and therefore constituted speech integral to criminal conduct, which is not protected by the First Amendment.
The district court held a hearing on Orr’s motion, at the conclusion of which the district court noted that a plea agreement had been filed with the court several weeks prior to the hearing. Before the district court issued its decision on the motion, Orr entered a conditional guilty plea to the witness intimidation charge in exchange for the State’s agreement to dismiss the no contact order violations. Orr reserved the right to appeal if the district court denied his motion to dismiss. The district court sentenced Orr to a three-year unified sentence with the first eighteen months fixed and then suspended the sentence and placed Orr on probation for three years. One day after the sentencing hearing, the district court issued its written decision denying Orr’s motion to dismiss. Orr timely appealed and challenges the district court’s denial of his motion to dismiss.
II. STANDARD OF REVIEW
We generally review a trial court’s decision on a motion to dismiss for abuse of discretion. See State v. Akins, 164 Idaho 74, 76, 423 P.3d 1026, 1028 (2018). However, where the decision turns on the constitutionality of a statute, this Court exercises de novo review because statutory interpretation is a question of law. Id.
III. ANALYSIS
Orr argues that section 18-2604(3) violates the First Amendment. He argues the statute is facially unconstitutional because it criminalizes a substantial amount of protected speech, rendering it unconstitutionally overbroad. He also argues that the statute is unconstitutional asapplied to his conduct because his statements to S.O. could be construed as asking her to tell the truth. As discussed in more detail below, we affirm the district court’s decision denying Orr’s motion to dismiss because Orr’s statements to S.O. were incidental to criminal conduct because he sought to convince her to commit perjury.
3
A. The district court did not err when it denied Orr’s facial constitutional challenge.
We begin with Orr’s argument that section 18-2604(3) is facially unconstitutional. His argument asserts that the statute criminalizes a substantial amount of protected speech due to its use of the phrase “by any manner”:
Any person who, by direct or indirect force, or by any threats to person or property,
or by any manner wilfully intimidates, influences, impedes, deters, threatens,
harasses, obstructs or prevents, a witness, including a child witness, or any person
who may be called as a witness or any person he believes may be called as a witness
in any criminal proceeding or juvenile evidentiary hearing from testifying freely,
fully and truthfully in that criminal proceeding or juvenile evidentiary hearing is
guilty of a felony.
I.C. § 18-2604(3) (emphasis added). Orr states that his appeal only challenges the “by any manner” language of the statute as being unconstitutionally overbroad, both facially and as-applied to his conduct. Orr argues that the “by any manner” language criminalizes a substantial amount of protected speech. Orr offers several examples of lawful speech that he claims are criminalized: (1) a defense attorney who advises a client to assert the Fifth Amendment right to remain silent; (2) a prosecutor who informs a witness that changing testimony at trial could result in a criminal perjury charge; (3) a parent counseling their own child not to testify against the child’s abuser to protect the child’s mental health; and (4) a detective investigating false accusations “by applying pressure to a victim.”
The district court denied Orr’s motion. It noted that there is a strong policy against applying the overbreadth doctrine in a facial constitutional challenge. It observed that the statute had never been held unconstitutional by Idaho’s appellate courts and that legislative enactments are presumed to be constitutional. Relying on prior decisions of this Court and the United States Supreme Court, the district court concluded that Orr failed to demonstrate that “a real and substantial amount of protected speech is caught in the legislative net relative to the State’s legitimate goals” of encouraging and promoting truthful testimony while protecting witnesses.
The First Amendment to the United States Constitution prohibits laws that “abridg[e] the freedom of speech[.]” U.S. Const. amend. I. “[A] statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008). See State v. Cartwright, 168 Idaho 802, 808–09, 487 P.3d 737, 743–44 (2021). The guarantee of free speech is not absolute; not all types of speech are protected. Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942). If the speech at issue is integral to criminal conduct, then it is
4
unprotected. See United States v. Hansen, 599 U.S. 762, 783–84 (2023); Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 121 (2011). Speech is integral to criminal conduct when it is “intended to bring about a particular unlawful act[,]” like promoting contraband, soliciting illegal employment, or even “picketing with the sole, unlawful and immediate objective of inducing a target to violate the law.” Hansen, 599 U.S. at 783 (citation modified).
We hold that section 18-2604(3) is not facially unconstitutional because it regulates speech that is integral to criminal conduct, which is not protected by the First Amendment. More specifically, the statute prohibits attempts to convince or persuade a person to provide perjured testimony or to prevent the person from testifying at all. Perjury occurs when a person, having taken an oath to testify truthfully then willfully “states as true any material matter which he knows to be false . . . .” I.C. § 18-5401. The witness intimidation statute prohibits a person “by any manner” from willfully intimidating, influencing, impeding, deterring, threatening, harassing, obstructing or preventing a witness in any criminal proceeding from testifying freely, fully and truthfully in that criminal proceeding. I.C. § 18-2604(3). The plain language of the statute prohibits one from using any means to attempt to persuade or convince another to testify untruthfully, which is the very nature of the allegations against Orr here. To the extent the plain language of the statute prohibits using words to prevent a witness from testifying at all, the statute largely, if not entirely, proscribes speech incidental to criminal conduct. Words used to intimidate, threaten, harass, obstruct or prevent a witness from testifying freely, fully, and truthfully could also run afoul of criminal statutes prohibiting assault. See I.C. §§ 18-901, 18-902.
Orr’s singular focus on the “by any manner” clause of the statute takes that language out of context. The “by any manner” clause of the statute simply describes the mechanism by which one can violate the statute. The mechanism employed to persuade another to testify untruthfully or to prevent them from testifying altogether could include spoken words. But it could also extend to mannerisms, physical intimidation or emotional manipulation. The “by any manner” language does not proscribe the content or message of the spoken words used to accomplish the objective of soliciting untruthful testimony or preventing a witness from testifying altogether.
Nor do Orr’s hypotheticals demonstrate that the statute criminalizes a substantial amount of protected speech. First, the defense attorney who advises a client to assert their Fifth Amendment right to remain silent is providing legal advice to the client concerning their legal rights. Truthful and accurate legal advice to a client regarding their constitutional rights does not constitute
5
intimidation, influence, impediment, deterrence, threats, harassment, obstruction or prevention of free, full, and truthful testimony, particularly where the Fifth Amendment expressly provides that the client cannot be compelled to be a witness against themselves. Second, a prosecutor who informs a witness that changing testimony at trial could result in a criminal perjury charge is attempting to alert the witness to the consequences of providing perjured testimony. Third, a parent counseling their own child not to testify against the child’s abuser to protect the child’s mental health may not possess the necessary mens rea to violate the statute because the parent is acting to protect the child. However, to the extent this type of conduct may run afoul of the statute (a point which we are not deciding and need not decide today), this limited circumstance does not constitute a substantial amount of protected speech. Finally, a detective investigating false accusations “by applying pressure to a victim” is not attempting to persuade a witness or potential witness to testify untruthfully in a criminal proceeding. Rather, the detective is investigating a crime and is testing the veracity of the victim’s story during an investigation.
For these reasons, Orr has not demonstrated that section 18-2604(3) criminalizes a substantial amount of protected speech because the speech prohibited by section 18-2604(3) is speech incidental to criminal activity. We therefore hold that the district court did not err when it denied Orr’s motion to dismiss on the basis that the statute was facially unconstitutional. B. The district court did not err when it determined Idaho Code section 18-2604 was
constitutional as applied to Orr.
Orr also argues that section 18-2604(3) is unconstitutional as applied to him because it criminalizes his protected speech. “To prove a statute is unconstitutional ‘as applied,’ the party challenging the constitutionality of the statute must demonstrate that the statute, as applied to the defendant’s conduct, is unconstitutional.” State v. Manzanares, 152 Idaho 410, 426, 272 P.3d 382, 398 (2012) (citation omitted). Accordingly, to prevail on his as-applied challenge, Orr must demonstrate that section 18-2604(3) infringes on his freedom of speech protected by the First Amendment. Id. As previously discussed, speech that is integral to criminal conduct is unprotected. Hansen, 599 U.S. at 783.
The district court concluded the statute was constitutional as applied to Orr because Orr’s speech violated a criminal no-contact order and therefore was speech incidental to criminal conduct. The district court also determined that because Orr never asked S.O. to “simply tell the truth[,]” a jury could have determined that he was encouraging or harassing the witness to falsely testify.
6
Orr contends the district court erred in rejecting his as-applied challenge because Orr’s statements can be interpreted as requesting that S.O. supplement her testimony with truthful information or that she speak to Orr’s attorney for guidance on how to help him. He argues that he never requested the witness to testify untruthfully. At oral argument, Orr additionally contended that his statements to S.O. that he loved her, that he is not able to sign his paychecks, and that he loved his children are protected speech.
We hold that Orr’s as-applied challenge fails for the same reason his facial challenge fails: his speech was integral to criminal conduct. The witness intimidation charge against Orr did not concern his statements expressing his love for S.O. and his children or that he was unable to sign his paychecks. Instead, the prosecutor pointed to other statements Orr made during the phone calls, which are reflected in written transcripts of the calls. Those transcripts are contained in the record on appeal and include the following statements that Orr made to S.O.:
• “You can fix this and they’ll release me on everything.”
• “The only way your [sic] going to try and fix this is to go to my prelim.”
• “Tell them it didn’t happen.”
• “It’s possible to get it to go away, its [sic] just up to you.”
• “If you don’t testify it will go away. If you state that it never happened it will go away.”
• “You don’t have to worry about it anymore I’m not going to be around.”
• “Tell them you were mad.”
• “Do everything you fucking can.”
• “Are you going to revise your story or what?”
• “Just live your life ok, mine is done.”
• “The only thing you can do [is] tell em [sic] like you did last time.”
• “There’s no way of getting out of this, unless you can try and do everything you can do.”
A jury could conclude that these statements were attempts to persuade S.O. to testify untruthfully. If the jury reached that conclusion, the statements are not protected by the First Amendment because they would be incidental to the criminal conduct of perjury.
Though Orr contends that these statements could also be interpreted as encouraging the witness to testify truthfully, that is an argument for the jury. Rather than make this argument, Orr opted to plead guilty. The fact a jury could construe Orr’s statements in two different ways does not establish that the statute was unconstitutional as applied to Orr.
7
Because a jury could reasonably construe Orr’s statements to S.O. as attempts to convince her to testify untruthfully, the factual allegations that formed the basis for the witness intimidation charge concerned speech integral to criminal conduct. As such, Orr’s as-applied challenge fails because the speech at issue was unprotected by the First Amendment. See Carrigan, 564 U.S. at 121. For that reason, the district court did not err when it denied Orr’s motion to dismiss on the basis the statute was unconstitutional as applied to him.
IV. CONCLUSION
For the above reasons, we affirm the district court’s decision denying Orr’s motion to dismiss.
Chief Justice BEVAN, and Justices BRODY, MOELLER, and MEYER CONCUR.
8