Free Speech

May the Law Ban Calls to Government Offices "Using Indecent Language" "With Intent to Harass or Embarrass"?

With a special cameo appearance by Eric Holder.


Neal Katyal, one of the leading appellate lawyers in the country, has filed a superb petition in Waggy v. U.S., urging the court to consider this question, cowritten by his Hogan Lovells US LLP colleagues Mitchell P. Reich and Benjamin A. Field, and federal public defender Matthew Campbell. (The Pennsylvania Center for the First Amendment and I filed an amicus brief supporting the petition—thanks to my student Nicole Patolai for her work on it.) Here are the facts and procedural history, from the petition (which is of course an advocacy document, but in my view quite reliable):

Robert Waggy is a disabled Marine Corps veteran who receives private medical care paid for by the Department of Veterans Affairs (VA). One day, Waggy called his local VA medical center to complain about its failure to reimburse him for $30,000 in medical bills. During the calls, Waggy became irate and used profanity. Waggy did not level true threats or incite violence; he merely petitioned—intemperately—for a redress of his grievances. Nonetheless, the Government made a federal case out of it, successfully charging Waggy with "mak[ing] a telephone call," "with intent to harass … or embarrass any other person," "using … lewd, lascivious, [or] indecent language." A divided panel of the Ninth Circuit affirmed Waggy's conviction, reasoning that it comported with the First Amendment because the statute punished Waggy solely for his "nonexpressive conduct" rather than for his speech.

The split among circuits on the broader question of the constitutionality of telephone harassment laws:

That decision deepens an intractable split among the lower courts as to the constitutionality of telephone harassment statutes. The Ninth Circuit has now joined three other circuits and six state high courts, as well as a bevy of intermediate state courts, that have upheld similar telephone harassment statutes against First Amendment challenge on the ground that they do not regulate protected speech at all. In contrast, two circuits, six state high courts, and numerous state intermediate courts have subjected telephone harassment statutes to searching First Amendment scrutiny—and have deemed such laws unconstitutional as applied to speech, like Waggy's, that raises matters of public concern. This split is widely acknowledged, deepening, and manifestly incapable of resolution without this Court's intervention. The time has come for the Court to step in and resolve the split once and for all.

A summary of the leading precedent in favor of holding such statutes unconstitutional, at least as to calls on matters of public concern to government offices:

The leading case on this side of the split is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999), which the panel below disagreed with and dismissed as inconsistent with the "great weight of authority," Pet. App. 9a n.5. In Popa, the defendant placed a series of calls to the office of Eric Holder, then the U.S. Attorney for the District of Columbia, in which Popa mixed racial epithets with complaints that the office had "violated … [his] rights." 187 F.3d at 673-674. The Government prosecuted Popa under the federal telephone harassment statute, charging him with making calls "without disclosing [his] identity and with intent to annoy, abuse, threaten, or harass." Id. at 674 (quoting 47 U.S.C. § 223(a)(1)(C))….

The principal problem, the D.C. Circuit explained, was that the statute extends to a broad swathe of "public or political discourse." Id. at 676-677. Among other things, the court noted that the law applies to calls in which "the caller has an intent to verbally 'abuse' a public official for voting a particular way on a public bill, 'annoy' him into changing a course of public action, or 'harass' him until he addresses problems previously left unaddressed." Id. Yet "the statute could have been drawn more narrowly, without any loss of utility to the Government, by excluding from its scope those who intend to engage in public or political discourse." Id. at 677. For instance, while the Government may have a legitimate interest in preventing callers from "tying up someone's line with a flood of calls," "[p]unishment of those who use the telephone to communicate a political message is obviously not 'essential to the furtherance of that interest.' " Id. (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)). That meant that Popa's conviction could not stand: "complaints about the actions of a government official were a significant component of his calls," and so the statute was "unconstitutional as applied to his conduct." Id. at 677-678….

And the broader errors by the majority below and by other courts in their First Amendment analysis:

Several lower courts, including the Ninth Circuit, have reasoned that telephone harassment laws like Washington's are exempt from First Amendment scrutiny because, by barring only those communications with an "intent to harass," these laws restrict "nonexpressive conduct" rather than speech. Pet. App. 10a-13a (citing cases). That is a puzzling characterization. The fact that speech is uttered with a particular intent does not transform it into unprotected conduct; a political protest made for vindictive reasons is no less protected than one made for lofty reasons. See FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449, 468 (2007) (lead op.) (A "speaker's motivation is entirely irrelevant to the question of constitutional protection." (citation omitted)).

Further, telephone harassment laws sweep into their prohibition speech that is plainly communication—namely, the calls themselves, and the ideas and thoughts the caller wishes to express through them. See Cohen, 403 U.S. at 18 (holding that a conviction that punishes "the fact of communication" is a restriction "upon 'speech' " (citation omitted)). That is particularly clear in the case of Washington's law, which expressly restricts the "words [and] language" a caller may utter. If a restriction on the use of particular words is not a speech restriction, then nothing is….

Some lower courts have also suggested that "harassment" is a type of speech categorically outside the ambit of the First Amendment. See, e.g., Eckhardt, 466 F.3d at 943-944. That too is wrong. " 'From 1791 to the present' … the First Amendment has 'permitted restrictions upon the content of speech in a few limited areas,' " and harassment is not one of them. Stevens, 559 U.S. at 468 (listing obscenity, defamation, fraud, incitement, and speech integral to criminal conduct as traditionally proscribable categories). Nor is harassing speech "part of a long (if heretofore unrecognized) tradition of proscription." Entm't Merchants, 564 U.S. at 792. To the contrary, this Court has time and again held that the First Amendment protects speech that is "annoying," Coates, 402 U.S. at 615, or that is "offensive and embarrassing to those exposed to" it, Carey v. Population Servs. Int'l, 431 U.S. 678, 701 (1977); see Street v. New York, 394 U.S. 576, 592 (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Simply put, "[t]here is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe, 240 F.3d at 204 (Alito, J.).

Nor is there a categorical exclusion from the First Amendment for speech that is "lewd, lascivious, profane, [or] indecent." Wash. Rev. Stat. § 9.61.230(1)(a). Although "obscenity" falls outside the protection of the First Amendment, "indecency" does not. See Reno v. ACLU, 521 U.S. 844, 874 (1997). And the Washington courts have expressly held that the Washington telephone harassment statute prohibits "'indecent' speech," as distinguished from obscenity. Dyson, 872 P.2d at 1119-20; see Pet. App. 27a (instructing Waggy's jury that the law prohibits "indecent" speech, and that "indecent" means "not decent, such as: grossly improper or offensive, unseemly, inappropriate")….

My view of when telephone harassment laws are constitutional, especially as to calls that aren't to government offices, is complicated (see this article); but I entirely agree that the Court should speak to this issue, and I hope it does so in this case. You can also read the government's brief opposing certiorari, the petitioner's reply brief, and the amicus brief filed on behalf of the National Coalition Against Censorship by Prof. Lisa Hoppenjans (Wash. U. First Amendment Clinic) and her students Megan Ferguson and Elliot Rosenwald.

NEXT: Part I of Interview about My Book "Free to Move" with Yale Law Professor Jack Balkin

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  1. “The Ninth Circuit has now joined three other circuits and six state high courts, as well as a bevy of intermediate state courts, that have upheld similar telephone harassment statutes against First Amendment challenge on the ground that they do not regulate protected speech at all. In contrast, two circuits, six state high courts, and numerous state intermediate …”

    Let’s see-
    Four circuits > two circuits.
    Six state “supreme” courts = six state “supreme” courts*
    Bevy of other courts > numerous other courts.

    That’s a nice bit of writing to say “We want the Court to adopt the minority rule.” 🙂

    *yeah yeah, New York etc.

    1. The Court adopts the minority rule all the time. Indeed, I have never studied this, but it wouldn’t surprise me if, in circuit splits, SCOTUS adopts the minority rule more often than it adopts the majority rule.

    2. loki13: It’s not a vote; the Court doesn’t feel obligated to take the 10-court side of a 10-to-8 split. If the split is very lopsided in one direction, that may sway the Justices (though not always); but with a near tie, the Court is unlikely to be much moved by which side is slightly in the lead.

      Beyond that, the first thing the petitioner needs here is to get the Court to take the case, and the deep split is very useful for that. Once the Court takes the case, then the petitioner will argue as to why the 45% minority view is correct.

  2. You might try imagining that the minority might be correct. Just try.

  3. First, thank you for another well-written piece!

    Telecommunications are considered non-public forum speech and as such are not entitled to the full 1A protections afforded public forum speech. The fact that no speech needs to be uttered at all makes this a conduct-based regulation, but the speech elements open the door to confusion for law enforcement. For instance, while profanity is protected speech, it can be probable cause for a disorderly conduct arrest when said in the same physical space as another, as the curse words could be deemed “fighting words,” even if they were only words of expression. Conduct laws that use speech as an indicator of harassment are fertile ground for unlawful arrest, and Misdemeanor-level contempt of cop arrests are largely unchallenged by those arrested, as well.

    All that to get to my unanswerable hypothetical question – What if Waggy had communicated his words (even the transcripts of his calls) in a public forum of speech? If his words were sent via interactive computer service, where “harassing” and “obscene” emails (for example), are not unlawful under 47 USCA 223, unless sent to a minor, would he still have been arrested? Sending emails is not conduct, not as defined in the federal statute.

    But, I’m not a lawyer. 😉

  4. There is no indecent language! Just because you might think a word or a symbol is indecent others don’t. In this nation where there is the first amendment a parson can use any word desired to get the meaning of what is being said across. But even though there is the first amendment and a person can use any word desired does not the meaning will be the same to the person hearing it.

  5. A “speaker’s motivation is entirely irrelevant to the question of constitutional protection.” That’s too strong, surely? The difference between a warning and a true threat may not be in the syntactic surface structure, but from the inferred intend of the speaker. Or the requirement of actual malice when it comes to certain defamatory statements? Or does this quote distinguish between intend and motive (which may work for the former, not sure if for the latter)

    1. Burkhard: I go into this in a lot of detail in my The Freedom of Speech and Bad Purposes article; but the short version is that, while the speaker’s mental state (such as lack of recklessness or knowledge) sometimes matters — especially when speech that’s viewed as valueless is protected because of honest mistake on the speaker’s part (as in libel law) — the speaker’s purpose generally can’t be used to strip otherwise valuable speech and constitutionally protected speech of that protection. (It ends up being a bit more complicated than the quote from Supreme Court’s FEC v. Washington Right to Life decision indicates, but not by much.)

  6. Heaven forbid the offended bureaucrat simply hang up….

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