United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 30, 1999 Decided September 17, 1999
No. 98-3017
United States of America,
Appellee
v.
Ion Cornel Popa,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00306-01)
Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender.
Anthony S. Barkow, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Elizabeth Tros-
man, Assistant U.S. Attorneys.
Before: Ginsburg, Sentelle, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Randolph.
Ginsburg, Circuit Judge: A jury convicted Ion Cornel Popa
of making anonymous phone calls with the "intent to annoy,
abuse, threaten, or harass any person," in violation of 47
U.S.C. s 223(a)(1)(C). Popa appeals, arguing that the statute
is unconstitutional both on its face and as applied to his
conduct, which involved calls to the office of the United States
Attorney. Because we agree that the statute, as applied to
Popa's conduct, violates the First Amendment to the Consti-
tution of the United States, we reverse his conviction on that
ground and therefore need not resolve his claim that the
statute is unconstitutionally overbroad.
I. Background
Popa is a political refugee from Romania. He has resided
in the United States since 1986. Between April 10 and May
9, 1997 he made seven telephone calls from locations in
Virginia to the office of the U.S. Attorney for the District of
Columbia, Eric Holder. In the two calls that were recorded
Popa refers to Mr. Holder as "a criminal, a negro," a "crimi-
nal with cold blood," and a "whore, born by a negro whore,
[who] became chief prosecutor of Washington, D.C." He also
claims that Holder "violated ... our rights." In the most
nearly lucid passage on the tapes, Popa says:
Eric Holder is a negro. Is a negro. Which is a criminal.
He make a violent crime against me, violating the rights
in court of the white people. [Inaudible] negro. He's
negro. Eric Holder. Criminal.
Popa was charged with violating 47 U.S.C. s 223(a)(1)(C),
which makes it a crime, punishable by a fine and up to two
years' imprisonment, to:
make[ ] a telephone call or utilize[ ] a telecommunications
device, whether or not conversation or communication
ensues, without disclosing [one's] identity and with intent
to annoy, abuse, threaten, or harass any person at the
called number or who receives the communications.
Popa moved to dismiss the indictment on the ground that
"this type of speech directed at a public official ... is entitled
to First Amendment protection." He argued that his deroga-
tory references to Holder are not punishable as "fighting
words," Chaplinsky v. New Hampshire, 315 U.S. 568, 572
(1942), and that the court should give s 223(a)(1)(C) strict
scrutiny in determining its constitutionality, see Cohen v.
California, 403 U.S. 15, 26, 91 (1971).
The district court denied Popa's motion. Applying inter-
mediate scrutiny, the court held that the statute is constitu-
tional on its face because it "regulates potentially expressive
conduct to serve the compelling interest of protecting people
from often frightening and annoying telephone harassment"
and its "intent requirement ... renders it narrowly tailored
to serve this interest." The court did not respond to Popa's
claim that the statute is unconstitutional as applied to his
conduct.
Popa, whom the court found competent to stand trial,
testified that he lacked the intent required to violate
s 223(a)(1)(C) because an acquaintance with whom he was
staying had plied him with liquor, made him read Ku Klux
Klan literature, and threatened to turn him out into the street
if he refused to make the calls. The court instructed the jury
that in order to convict Popa they had to find beyond a
reasonable doubt that he "had the intent to annoy, abuse,
threaten or harass any person at the number called." The
court defined those terms as follows:
To annoy means to irritate, to bother, to make someone
angry by repeated action; to abuse means to use insult-
ing, coarse or bad language about or to someone; to
threaten means to make an expression of one's intention
of hurting or punishing or destroying the other person;
and, fourth, to harass means to trouble, to worry or
torment.
After less than an hour of deliberation the jury found Popa
guilty. The district court sentenced him to time served,
which was nearly nine months.
II. Analysis
On appeal Popa again argues that s 223(a)(1)(C) is uncon-
stitutional both as applied and on its face. Whether the
Government has infringed a defendant's rights under the
First Amendment is, of course, a question of law, which we
would normally review de novo. See United States v. Doe,
968 F.2d 86, 88 (D.C. Cir. 1992). The Government agrees
that we should entertain Popa's facial challenge de novo but
claims that, because he neither argued to the district court
nor testified at trial that his speech was political in nature, we
should not reach his as applied challenge, see Henderson v.
Lujan, 964 F.2d 1179, 1183 (D.C. Cir. 1992), or should review
it only for plain error, see United States v. Spriggs, 102 F.3d
1245, 1257 (D.C. Cir. 1997). In this the Government errs with
regard to both the facts and the law.
Plaintiff's pretrial motion was adequate to preserve his as
applied challenge for appeal because, even if it did "not state
explicitly the grounds upon which [it was] made," it did
"contain facts and arguments that [made] clear the basis of
[his] objections." United States v. Bailey, 675 F.2d 1292,
1294 (D.C. Cir. 1982); accord United States v. Daniels, 770
F.2d 1111, 1114-15 (D.C. Cir. 1985) (Bailey standard not
demanding); see also United States v. Mitchell, 951 F.2d
1291, 1297-98 (D.C. Cir. 1991). Specifically, Popa's motion
presents the relevant facts, namely, that he made comments
critical of a public official; and it sets out the legal arguments
at the base of his objection, namely, that his use of epithets
did not render his speech unprotected and that the district
court should apply strict scrutiny.
Although the district court did not address the as applied
challenge, it denied Popa's motion in no uncertain terms.
Popa was therefore under no obligation to seek rehearing, to
raise the issue again at trial, or to request jury instructions
on the protection of political speech. See United States v.
Madoch, 149 F.3d 596, 600 (7th Cir. 1998) ("Although [the
defendant] failed to renew an objection [based upon Mi-
randa] ... at the time the government introduced [her
statements] at trial, the district court's clear ruling on [her]
motion in limine is sufficient to preserve the issue for
appeal"); United States v. Mejia-Alarcon, 995 F.2d 982, 986
(10th Cir. 1993). In addition, Popa did testify in essence, if
not in terms, that his speech was political in nature.* Ac-
cordingly, we review that claim de novo.
A. Level of Scrutiny
Popa contends his conviction was based upon "the expres-
sive content of his speech," that is to say, that there "was no
conduct, separate from his communication, that would have
caused his conviction." Therefore, he says, we should give
strict scrutiny to the law as applied.
The Government, on the other hand, contends that
s 223(a)(1)(C) is content neutral and therefore that we should
apply intermediate scrutiny. First, because the prohibition
applies by its terms "whether or not conversation or commu-
nication ensues," the Government reasons that the statute
cannot be viewed as making punishment depend upon the
content of the defendant's speech. Second, s 223(a)(1)(C)
focuses not upon how the speech affects the listener, which
would clearly turn upon the content of that speech, but rather
upon the intent of the speaker; and the intent of the speaker,
the Government argues, is not the same as the content of his
speech even if the content may, as in this case, be evidence
from which a jury can infer the speaker's intent. In support
of its argument, the Government cites a decision of the
Second Circuit holding that a similar Connecticut statute
__________
* Popa said he called Holder to complain about an event in 1992
during which "two Afro-American police officers [were] dispatched"
in response to his call complaining that he had been "threatened by
an Afro-American." Popa said that the officers "came after me and
beat me up." (The Government itself introduced in evidence a
letter that Popa wrote to Holder while awaiting trial in which he
referred to this event and stated that whites beaten by blacks "do
not get any justice.") Popa also testified that he called Holder to
complain about the Government's actions in a pending case against
him for making threats to an employee of a bank; he claimed the
Government had "fail[ed] to give me in advance what government
witnesses are against me."
"[c]learly ... regulates conduct, not mere speech. What is
proscribed is the making of a telephone call, with the requi-
site intent and in the specified manner." Gormley v. Di-
rector, Conn. State Dep't of Probation, 632 F.2d 938, 941-42
(1980) (emphasis in original).
Even if, as the Government maintains, s 223(a)(1)(C) "is a
generally-applicable regulation directed at conduct," it does
not follow that the statute is content neutral. As Popa notes,
s 223(a)(1)(C), unlike the Connecticut statute challenged in
the Second Circuit, applies only if the person makes the call
"without disclosing his identity." This at least appears to
make the prohibition depend upon the content of the call.
See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 345
(1995) (requirement that literature designed to influence vot-
ers in election contain name and address of persons responsi-
ble for documents "is a direct regulation of the content of
speech"); cf. NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 462 (1958).
In the end, however, we need not decide whether
s 223(a)(1)(C) is content based. For accepting the Govern-
ment's argument that any incidental restriction s 223(a)(1)(C)
places upon speech in a particular case is content neutral, we
would--as the Government suggests--apply intermediate
scrutiny, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
652 (1994), and the statute, as applied to Popa, does not
survive even that less searching inquiry.
B. Narrow Tailoring
In United States v. O'Brien, 391 U.S. 367 (1968), the Court
held that for cases in which " 'speech' and 'nonspeech' ele-
ments are combined in the same course of conduct," id. at
376, a government regulation passes intermediate scrutiny if:
[1] it is within the constitutional power of the Govern-
ment; [2] it furthers an important or substantial govern-
mental interest; [3] the governmental interest is unrelat-
ed to the suppression of free expression; and [4] the
incidental restriction on alleged First Amendment free-
doms is no greater than is essential to the furtherance of
that interest.
Id. at 377. Popa claims only that s 223(a)(1)(C) fails the
fourth part of the O'Brien test.
The Supreme Court has explained that the fourth part is
satisfied so long as the substantial government interest pro-
moted by the regulation "would be achieved less effectively
absent the regulation." Turner Broad. Sys., 512 U.S. at 662.
In O'Brien, the Court upheld a statute that prohibited the
burning of draft cards because it "perceive[d] no alternative
means that would more precisely and narrowly assure the
continuing availability of issued Selective Service certificates
than a law which prohibits their wilful mutilation or destruc-
tion." 391 U.S. at 381. In Turner Broadcasting, the Court
upheld the "must-carry" law, which required cable television
systems to carry local broadcast stations on some of their
channels in order to preserve the economic viability of broad-
cast stations for the 40 percent of American households
without cable. See Turner Broad. Sys., Inc. v. FCC, 520 U.S.
180, 215-16 (1997). The cable systems argued that the law
was too broadly drawn because it permitted a few hundred
network affiliates to opt for "must-carry" treatment even
though their economic viability was not threatened. None-
theless, the Court held that number "insufficient to render
must-carry 'substantially broader than necessary to achieve
the government's interest.' " Id. at 217.
In determining whether the incidental restriction
s 223(a)(1)(C) places upon speech "is no greater than is
essential to the furtherance of [an important governmental]
interest," we need consider only the "annoy, abuse, ... or
harass" forms of the intent element.* Popa argues that the
Government's interest in protecting individuals from annoy-
ing, abusive, and harassing phone calls would be equally well
served if the statute did not encompass "public or political
__________
* There is no evidence in the record to support a claim that Popa
made the phone calls with the intent to threaten and Popa does not
argue that the intent to threaten component needs to be drawn
more narrowly.
discourse [intended to] 'irritate,' 'bother,' 'insult,' etc." As
Popa correctly points out:
The statute sweeps within its prohibitions telephone calls
to public officials where the caller may not want to
identify [him]self other than as a constituent and 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.
Recall that Popa testified he called Holder's office, among
other things, to complain about having been assaulted by
police officers and about the prosecutor's conduct of a case
against him.
The Government responds that s 223(a)(1)(C) is already
narrowly drawn because it contains a "stringent specific
intent requirement." Certainly the statute would be broader
still if it required only a general intent--if, for example, it
penalized making an anonymous phone call that had the effect
of annoying, abusing, or harassing the recipient of the call.
That s 223(a)(1)(C) is not as broad as it could be, however,
does not suggest that it is as narrow as it must be to pass
intermediate scrutiny.
The Government also argues that calls such as Popa's can
impede its undoubted interest in "operational efficiency."
United States v. National Treasury Employees Union, 513
U.S. 454, 473 (1995). There is, however, no evidence that
Popa's seven phone calls over the course of a month in any
discernable way impeded the efficiency of the U.S. Attorney's
office. Indeed, we can safely say the Government's interest
in efficiency "is simply not implicated on the facts before us,"
which entail the brief distraction of the clerical staff who
answered Popa's calls. Texas v. Johnson, 491 U.S. 397, 407
(1989) (if "interest asserted by the State is ... not implicated
... we need not ask whether O'Brien's test applies").
Moreover, the Government never even suggests that its
interest would be less effectively furthered by a statute
applicable only to callers who did not intend to engage in
public or political discourse. Instead, it argues that Popa's
calls had no political content; we reject that position because
complaints about the actions of a government official were a
significant component of his calls. In the alternative, the
Government notes that "[p]olitical motivations simply do not
insulate someone from criminal liability for violating content-
neutral, generally-applicable, conduct-regulating statutes."
True enough, but such statutes are still subject to intermedi-
ate scrutiny. And unlike the interests implicit in the Govern-
ment's hypotheticals--which involve killing an abortionist and
giving false testimony at a criminal trial, in each case to
advance a political cause--the governmental interest at stake
here is no less effectively furthered by a statute that gives a
pass to those who intend in part to communicate a political
message.
In sum, we agree with Popa that 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. Indeed, the Govern-
ment itself, quoting United States v. Lampley, 573 F.2d 783
(3d Cir. 1978), describes the interest furthered by
s 223(a)(1)(C) as the "important interest 'in the protection of
innocent individuals from fear, abuse or annoyance at the
hands of persons who employ the telephone, not to communi-
cate, but for other unjustifiable motives.' " Id. at 787. In
other words, as Popa notes, the Government's "asserted
interest is limited to protecting individuals from non-
communicative uses of the telephone," such as tying up
someone's line with a flood of calls, each of which is terminat-
ed by the caller as soon as it is answered. Punishment of
those who use the telephone to communicate a political mes-
sage is obviously not "essential to the furtherance of that
interest." Hence the statute fails the fourth part of the
O'Brien test. 391 U.S. at 377.
Finally, unlike the proffered alternatives to the must-carry
law in Turner Broadcasting, the alternative to s 223(a)(1)(C)
that Popa suggests is substantially "less intrusive on a speak-
er's First Amendment interests." 520 U.S. at 217-18. Un-
der the statute as written, and as the jury in this case was
instructed, no protection whatsoever is given to the political
speech of one who intends both to communicate his political
message and to annoy his auditor--an auditor who might be
his elected representative or, as here, an Officer of the United
States appointed by the President with the advice and con-
sent of the Senate--from whom the speaker seeks redress.
* * *
The jury was instructed that it could convict Popa if it
found beyond a reasonable doubt that he had the "intent to
annoy, abuse, threaten or harass any person at the number
called." Because the jury delivered a general verdict, we
cannot know which intent the jury concluded Popa had when
he made the phone calls. Insofar as the intents to annoy, to
abuse, or to harass were implicated, the statute fails interme-
diate scrutiny as applied to Popa's conduct; insofar as the
jury may have found an intent to threaten, there is no
evidence to support the finding. We therefore vacate Popa's
conviction.
C. Overbreadth Challenge
Popa also challenges the constitutionality of s 223(a)(1)(C)
on the ground that the statute is overbroad on its face. This
he has standing to do. See Massachusetts v. Oakes, 491 U.S.
576, 581 (1989) ("The First Amendment doctrine of substan-
tial overbreadth is an exception to the general rule that a
person to whom a statute may be constitutionally applied
cannot challenge the statute on the ground that it may be
unconstitutionally applied to others"). To prevail upon such a
challenge, however, especially in a case involving conduct as
well as speech, the overbreadth of the statute "must not only
be real, but substantial," in relation to the legitimate coverage
of the statute. Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973). For the overbreadth doctrine is "strong medicine" to
be applied "sparingly and only as a last resort." Id. at 613.
Nonetheless, the Supreme Court has not always followed
the "rule that a federal court should not extend its invalida-
tion of a statute further than necessary to dispose of the case
before it." Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
502 (1985); see, e.g., Board of Trustees v. Fox, 492 U.S. 469,
487 n.2 (1989) (Blackmun, J., dissenting) (citing cases in which
the Court resolved the overbreadth challenge instead of the
as applied challenge). In Brockett the Court distinguished
between a case in which "an individual whose own speech ...
may validly be prohibited ... challenge[s] a statute on its
face" and one in which "the part[y] challenging the statute
... engage[s] in protected speech that the overbroad statute
purports to punish." 472 U.S. at 503-04. In the latter case
the Court concluded that, because there is "no want of a
proper party to challenge the statute, [and] no concern that
an attack on the statute will be unduly delayed or protected
speech discouraged," the reviewing court should declare the
statute "invalid to the extent that it reaches too far, but
otherwise [leave it] intact." Id. at 504.
In this case, as we have seen, Popa engaged in protected
speech that s 223(a)(1)(C) purports to punish. Therefore,
pursuant to Brockett, having vacated Popa's conviction be-
cause the statute is unconstitutional as applied to his conduct,
we shall not go on to inquire whether the statute is overbroad
and, if so, whether it is susceptible to a limiting construction.
See New York v. Ferber, 458 U.S. 747, 769 n.24 (1982).
III. Conclusion
As applied to the conduct at issue in this case, 47 U.S.C.
s 223(a)(1)(C) violates the First Amendment. The judgment
of the district court is therefore
Reversed.
Randolph, Circuit Judge, concurring: I do not agree with
the government that s 223(a)(1)(c) "is a generally-applicable
regulation directed at conduct." Brief for Appellee at 18. A
hang-up call could, I suppose, be characterized as conduct
only. So too perhaps calls consisting only of a grunt or a
moan. Nonetheless, in general, telephones are devices for
communicating and this statute regulates how telephones may
be used for that purpose. The acts of picking up the phone
and dialing are conduct. The act of speaking on the phone is
also a form of conduct but it still is "speech." Whether the
caller is exercising his "freedom of speech" depends on what
he says and why. A blackmail attempt, a bomb threat, a
fraudulent promise, a kidnapper's demands--all are communi-
cations, but none are protected by the First Amendment.
Partly this is because of history; partly it is because of the
consequences of such communications. To characterize anon-
ymous telephone calls intended to annoy or harass as "con-
duct" rather than speech is to confuse the analysis.