The Electric Commentary

Tuesday, January 10, 2006

Update: What Free Speech?

Yesterday I linked to a story that implicated that anonymous, annoying communication on the internet is now a federal crime. At the Volokh Conspiracy today, Orin Kerr points out that this is simply not the case:

Seems pretty broad, doesn't it? Well, there's a hook. It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court's First Amendment test in United States v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.

I'm quite sure that this is correct. The only way that this statute could have even been contemplated is if it included a rock solid exception for a First Amendment defense.


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