The Volokh Conspiracy

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Volokh Conspiracy

Harassing E-Mail to Sen. McConnell Can't Be Punished as "Speech Integral to Criminal Conduct"

"The First Amendment limits Congress; Congress does not limit the First Amendment."


In today's decision in United States v. Weiss, Judge Charles Breyer (N.D. Cal.) dismissed a prosecution for sending harassing e-mails (in violation of 47 U.S.C. § 223(a)(1)(C)) to Senator Mitch McConnell's office. The judge concluded that the e-mails weren't punishable threats of violence (more on that in a later post); but the government's chief argument was that they were constitutionally unprotected because they were "speech integral to criminal conduct"—the criminal conduct being the sending of harassing e-mails, in violation of 47 U.S.C. § 223(a)(1)(C). Judge Breyer rejected that argument on the government's part, in my view correctly so:

As to "speech integral to criminal conduct," the government contends that "any speech of [Weiss's] that is restricted by § 223(a)(1)(C) is integral to his criminal conduct in violating § 223(a)(1)(C)." That reasoning is fatally circular.

"Speech integral to criminal conduct" does not mean that Congress can make a law criminalizing otherwise-protected speech, and then, because a defendant's speech violates the law, deem the speech to be "speech integral to criminal conduct." "[I]f the government criminalized any type of speech, then anyone engaging in that speech could be punished because the speech would automatically be integral to committing the offense. That interpretation would clearly be inconsistent with the First Amendment." United States v. Matusiewicz (D. Del. 2015).

As Eugene Volokh explained, the exception "can't justify treating speech as 'integral to illegal conduct' simply because the speech is illegal under the law that is being challenged. That should be obvious, since the whole point of modern First Amendment doctrine is to protect speech against many laws that make such speech illegal." Eugene Volokh, The 'Speech Integral to Criminal Conduct' Exception, 101 Cornell L. Rev. 981 (2016) (hereinafter Volokh). Moreover, "[i]t is not enough that the speech itself be labeled illegal conduct, e.g., 'contempt of court,' 'breach of the peace,' 'sedition,' or 'use of illegally gathered information.' Rather, it must help cause or threaten other illegal conduct which may make restricting the speech a justifiable means of preventing that other conduct." Id. (emphasis in original).

"Speech incident to criminal conduct" applies to speech that "is a mechanism or instrumentality in the commission of a separate unlawful act," apart from the speech itself. People v. Relerford (Ill. 2017). The exception originates from the case of Giboney v. Empire Storage & Ice Co. (1949), in which, to pressure nonunion ice-sellers, a union picketed an ice company, demanding that it agree to stop supplying ice to the nonunion ice-sellers. What the union was demanding of the ice company was illegal under Missouri law, which prohibited any agreement in restraint of trade in the sale of any product. The union's picketing therefore was intended "to effectuate the purposes of an unlawful combination, and their sole, unlawful immediate objective was to induce [the ice company] to violate the Missouri law by acquiescing …." The Court explained that while "the agreements and course of conduct here were as in most instances brought about through speaking or writing it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language …." See also Volokh ("Many lower court decisions have cited Giboney in cases factually much like Giboney itself:  cases where the speaker is soliciting the commission of some other crime.").

The existence of a separate unlawful act is key. The Minnesota Supreme Court recently explained that "statutes criminalizing the use of the Internet or an electronic device to engage in communications with a child that relate to or describe sexual conduct and the intentional solicitation of prostitution fall within the" exception, because such speech is "directly linked to and designed to facilitate the commission of a crime." In re Welfare of A.J.B. (Minn. 2019). "On the other hand," that court held that "speech advising, encouraging, or assisting another to commit suicide was not speech integral to criminal conduct because the act advocated for—suicide—is not illegal."

In United States v. Osinger, which the government relies on, the Ninth Circuit held that the defendant's Facebook impersonation of the victim and his posting of sexually explicit photographs of her was integral to his "course of conduct" of stalking her, which began with in- person stalking even prior to his online speech. Had Osinger not done anything but engage in free speech, the "speech integral to criminal conduct" exception should not have applied, as Judge Watford wrote in a compelling concurring opinion. See id. (Watford, J., concurring). Judge Watford agreed with the majority's holding in that case because "whatever difficulties may arise from application of the exception in other contexts, it surely applies when the defendant commits an offense by engaging in both speech and non-speech conduct, and the sole objective of the speech is to facilitate the defendant's criminal behavior." But see Volokh at 1036–42 (criticizing Osinger and noting that "[s]peech that is intended to annoy, offend, or distress does not help cause or threaten other crimes, the way solicitation or aiding or abetting does.")….

The government also relies on United States v. Sandhu, in which the Ninth Circuit [in a nonprecedential decision] held that any speech involved in the commission of 47 U.S.C. § 223(a)(1)(D)—the statute making it a crime to cause another person's phone to ring repeatedly—was "speech integral to criminal conduct," The government asserts that "[t]he same analysis applies here." Opp'n at 19. But section 223(a)(1)(D) targets conduct separate and apart from any speech—speech was irrelevant to the prohibited conduct of "caus[ing] the telephone of another repeatedly or continuously to ring, with the intent to harass …." See 47 U.S.C. § 223(a)(1)(D); see also Osinger (Watford, J., concurring) (distinguishing the criminalization of pure speech from cases involving "non-communicative aspects of speech, like repeated unwanted telephone calls that are harassing due to their sheer number and frequency."). The First Amendment does not prevent Congress from criminalizing the causing of someone's phone to ring repeatedly; it does prevent Congress from criminalizing political speech.

{Imagine, for example, a law criminalizing the printing of a flyer with the intent to undermine the President. The government's argument here would mean that what is really criminalized is the printing of the flyer with bad intent, and that whatever political speech is on the flyer is integral to the criminal conduct of printing a flyer with unlawful intent. That would be absurd. As Weiss asserts: "The First Amendment limits Congress; Congress does not limit the First Amendment."}

The government also cites to United States v. Alvarez as recognizing the "speech integral to criminal conduct" exception. In fact, while the Supreme Court in Alvarez recognized the existence of that exception, it did not employ that exception to resolve the case. Alvarez had been charged with and convicted for violating the Stolen Valor Act, because he lied about receiving the Congressional Medal of Honor. The Ninth Circuit reversed Alvarez's conviction, and the Supreme Court affirmed, holding that the Stolen Valor Act was a content-based restriction on free speech that violated the First Amendment.

Applying the government's reasoning here would have led the Court to uphold Alvarez's conviction: his speech violated the Stolen Valor Act, so it was speech integral to violating the Stolen Valor Act. Instead, the Court found that fact patterns involving "speech integral to criminal conduct" were "inapplicable[.]" Similarly, while the government argues that "[United States v. Popa (D.C. Cir 1999)] has no bearing here because it did not address the speech integral to criminal conduct exception[,]"the better interpretation of Popa is that it did not employ such an expansive interpretation of the exception because the law does not support it. Popa committed no criminal conduct other than his harassing phone calls. Why would the D.C. Circuit have bothered to undertake a lengthy analysis of intermediate scrutiny as applied to Popa's speech when it "could merely hold that the speech has been criminalized, apply the exception, and be done with it"?

As in Popa, this case involves no criminal act by Weiss apart from his violation of the statute by using his telephone to harass a public official with his speech (some of which was political). The government conceded as much at the hearing. When the Court asked the government what criminal conduct Weiss's speech facilitated, the government identified that conduct as the harassing and threatening use of a device. Weiss was not also soliciting a company to enter into an agreement in restraint of trade, he was not also engaging in a course of conduct of stalking, and he was not also conspiring to defraud the United States. Because Weiss's speech did not help cause or threaten other illegal conduct, the "speech incident to criminal conduct" exception does not apply.

{Moreover, there is no categorical exception to the First Amendment for speech made with the intent to harass someone. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (holding that the "right to be free of purposeful workplace harassment under the Equal Protection Clause" of the Fourteenth Amendment did "not retract[] the freedoms enshrined in the First.").}