The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
That's the holding of City of Fargo v. Roehrich, decided today by the North Dakota Supreme Court (in an opinion by Justice VandeWalle):
Roehrich was convicted of harassment in violation of Fargo Municipal Code § 10-0322. The relevant portion of the ordinance [which largely tracks North Dakota's criminal harassment statute] states:
A person is guilty of an offense if, with intent to frighten or harass another, he:
- Makes a telephone call anonymously or in offensively coarse language;
- Makes repeated telephone calls or other electronic communication, whether or not a conversation ensues, with no purpose of legitimate communication; or
- Communicates a falsehood in writing or by electronic communication and causes mental anguish….
Roehrich argues the ordinance is unconstitutionally vague because it criminalizes telephone calls with "no purpose of legitimate communication" and "legitimate communication" is not defined. He claims his calls were for the purpose of legitimate communication because he contacted the officers about their handling of his son's car accident and traffic ticket and to inform the department about an officer's perjury, and none of the officers ever addressed or investigated his claim that an officer committed perjury. He contends it is not clear at what point communication that was legitimate changes to harassment under the ordinance.
The phrase "legitimate communication" is not specifically defined in the ordinance, but the word "legitimate" is generally understood to mean "[g]enuine; valid." Although the phrase "no purpose of legitimate communication" may be subjective, the ordinance requires the person to act with a specific intent to be guilty of the offense. In Screws v. United States (1945) (plurality), the Supreme Court recognized "the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid." The Court further explained, "[W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of the law." The specific intent element removes the possibility that a person could be unaware of his criminal conduct and provides a reasonable person with adequate and fair warning of the prohibited conduct.
The harassment ordinance requires the defendant to have the intent to frighten or harass to be found guilty. Making a phone call that arguably does not have a legitimate purpose alone is not sufficient to violate the statute. The caller must make the phone call with the intent to frighten or harass another person. The combination of the specific intent element with the required conduct of repeated phone calls or other electronic communication with no legitimate purpose creates minimum guidelines for the reasonable police officer, judge, or jury and limits the dangers of arbitrary and discriminatory application. It also provides a reasonable person with adequate and fair warning of the prohibited conduct. We conclude the ordinance is not unconstitutionally vague on its face….
We also conclude the law is not unconstitutionally vague as applied to Roehrich. Roehrich may have initially called officers with the purpose of legitimate communication, but evidence in the record established he made hundreds of telephone calls to three officers over a period of two years and many of the calls had no purpose of legitimate communication.
Fargo Police Officer Charles Sullivan testified he received more than 50 voicemail messages from Roehrich over the course of a year, the messages were insulting and harassing, and many of the messages did not request Sullivan call him back or mention the traffic ticket Sullivan issued to Roehrich's son. Officer Jared Crane testified he was working in the police department's Office of Professional Standards when he had contact with Roehrich, he received a complaint from Roehrich in July 2017 related to his son's car accident, Crane investigated the complaint, he informed Roehrich there was no wrongdoing and no policy violations, and Roehrich demanded Crane change the accident report.
Crane testified there was no legitimate reason for Roehrich to contact him after Crane investigated Roehrich's complaint and made a determination, but Roehrich continued to call and Crane told him multiple times to stop contacting him about the matter. He testified Roehrich continued to contact him almost daily, he believes he received more than 150 telephone calls from Roehrich, and a majority of the calls did not mention the accident report. Approximately 80 voicemails Roehrich left for Crane were admitted into evidence at trial, and Crane testified he received all but one of them after he told Roehrich to stop calling him.
Officer Shane Aberle testified he worked in the Office of Professional Standards starting in September or October 2018, he received calls from Roehrich initially but the calls stopped for about six months and then started again in April 2019. He testified Roehrich called him approximately 30 times in April and May 2019. Evidence established an assistant city attorney sent Roehrich a cease and desist letter in October 2018, which advised Roehrich his telephone calls and voicemail messages consisting of offensive, coarse language and derogatory statements were harassing and had no legitimate purpose and a failure to immediately stop the harassing activities would result in criminal prosecution.
Recordings of more than 120 voicemail messages Roehrich left for the three officers were admitted into evidence during the trial. The calls were repetitive and included name calling and profanity, allegations the officers were liars or corrupt and did not know how to do their jobs, and other similar statements. Roehrich acknowledged in voicemail messages he left for Crane and Aberle that he may be charged with harassment but that he was going to continue to call regularly, and he left a voicemail message for Crane stating, "I want to be charged with harassment. … Charge me. Go ahead. I'm waiting."
Roehrich's voicemail messages often did not include any information about Roehrich's complaints related to his son's car accident or contain requests for an officer to return his call. The evidence was sufficient to support a determination by the jury that Roehrich made repeated telephone calls with no purpose of legitimate communication and that Roehrich had an intent to frighten or harass another when he engaged in this conduct.
In cases with comparable facts and circumstances, other courts have held harassment laws were not unconstitutional as applied to the defendant. See, e.g., People v. Smith (N.Y trial ct. 1977) (holding harassment statute was not unconstitutionally vague as applied to defendant when defendant called police 27 times in three hours after he was informed that a certain matter was civil and not criminal and that he should not call the police again, even though the defendant initially called with a purpose of legitimate communication, it was clear that his intent as to the later calls was not to communicate but solely to harass).
Using the plain and commonly understood meaning of "legitimate communication," under the facts and circumstances of this case a reasonable person would know Roehrich's conduct was prohibited by the harassment ordinance. We conclude the ordinance is not unconstitutionally vague as applied to Roehrich's conduct….
And the court also concluded that the speech was substantively unprotected:
The First Amendment may protect the content of the speech, but the conduct used in delivering the speech may not be protected. Furthermore, speech that is an integral part of conduct in violation of a criminal statute and that has a sole immediate purpose of continuing a violation of law is not protected. Giboney v. Empire Storage & Ice Co. (1949).
Evidence established Roehrich made hundreds of telephone calls to three officers, he was told to stop calling numerous times, he was sent a cease and desist letter, and he continued to call the officers after being told to stop. He stated in multiple voicemail messages that he would continue to call the officers until he was charged with harassment. The jury found Roehrich had an intent to frighten or harass when he called the officers, and Roehrich does not challenge the jury's findings. Under the facts of this case and when the totality of Roehrich's actions are considered, we conclude Roehrich's conduct was not protected by the First Amendment.
A few thoughts:
[1.] The "integral part of conduct" argument strikes me as wrong, for reasons I discussed in this article:
When speech tends to cause, attempts to cause, or makes a threat to cause some illegal conduct (illegal conduct other than the prohibited speech itself)—such as murder, fights, restraint of trade, child sexual abuse, discriminatory refusal to hire, and the like—this opens the door to possible restrictions on such speech [under Giboney]…. On the other hand, the Giboney doctrine 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.
For good discussion of this in court opinions, including related to "harassment" laws, see, e.g., In the Matter of the Welfare of A.J.B. (Minn. 2019), People v. Relerford (Ill. 2017), U.S. v. Weiss (N.D. Cal. 2020) (currently on appeal), and State v. Shackelford (N.C. Ct. App.) (Murphy, J., concurring).
[2.] I think that generally restrictions on repeated unwanted calls to people are constitutional (see Part I of this article), especially when the calls are placed even after the called person says "stop." But there are many cases holding that unwanted and insulting messages (including voice-mail) to government officials are constitutionally protected; see this post for details (though note that the Ninth Circuit upheld a conviction as to calls to VA officials in U.S. v. Waggy).
[3.] I do think that bans on speech said "with intent to … harass" and "no purpose of legitimate communication" are unconstitutionally vague, precisely because it's so unclear what counts as "harass[ing]" and what communication is not "legitimate." And that's especially so when the calls are to government officials; how exactly are people to determine when the desire to communicate one's disapproval of government officials is "legitimate" and when it's not "legitimate"?
I agree that 120 messages (even over the course of a year) may feel like too much, for whatever communicative purpose one might have. But nothing in the statute tells you how much is too much (what about the seven racist messages over the course of a month that were held to be constitutionally protected in U.S. v. Popa (D.C. Cir. 1999)?).