Friday, March 23, 2007

Political Telephone Harassment Conviction Reversed

The First Circuit reversed the conviction of James Tobin, the former New England Regional Director for the Republican National Committee, for his role in a scheme to jam telephones used by the Democrat party on election day in November 2002 to get out the vote.  Tobin was convicted on conspiracy and aiding and abetting charges for violation of 47 U.S.C. Sec. 223(d), which makes it a crime to make telephone calls with an "intent to harass."  The First Circuit found that the district court's jury instructions "unduly broadens" the intent level for the statute by allowing a conviction if the defendant's purpose was to interfere with the operation of the telephone lines even though the caller never directly harassed or threatened the recipient of the call (see opinion below).  The court stated:

The district court's "bad faith-improper motive" instruction would include harassing conduct so defined but would also include almost anything else of which the jury might disapprove including conduct that was solely designed to interfere with telephone communications. We think that a Congress that sought to reach and outlaw attempts wrongfully to disrupt communications would have used quite different language (e.g., "impede" access or use; "disrupt"), along the lines of state statutes that are expressly so aimed. It is also hard to think why a Congress seeking to protect access to unimpeded telephone communication would have been worried only about disruption caused by ringing (as opposed, for example, to cutting the line or sabotaging the gear where the drop cable enters the home).

The appellate court remanded the case to the district court to consider further the "intent to harass" issue, but the opinion ends with a strong hint that the government's theory of prosecution may not be tenable.  The opinion states: "We think it fair to add that despite the unattractive conduct, this statute is not a close fit for what Tobin did. If the government thinks this a recurring problem, it better seek an amendment."  Of course, any amendment would not do any good for the prosecution of Tobin, whose conduct may be that rare instance which is not addressed by a federal statute. (ph)

Download us_v_tobin_opinion_march_21_2007.pdf

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