Eugene Volokh's Blog, page 2741

Court Dismisses Prosecution for Leaving Nasty Voice-Mails for Prosecutor, Suggests New York Telephone Harassment Statute Is Facially Unconstitutional

(Eugene Volokh)

The case is People v. Louis, a New York trial court case decided Wednesday. This seems consistent with United States v. Popa (D.C. Cir. 1999), discussed in this post, and also (though the analogy is less direct, given the difference in the statutes involved) with the Nebraska Supreme Court People v. Drahota decision).

The defendant is accused of having committed a violation of PL §240.30(1), Aggravated Harassment [in the second degree].... The supporting deposition in this case states, in pertinent part, the following:

... On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney's Office ... as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre-Louis.... In the voice mails, Nicolas Pierre-Louis yells, screams and uses profanity, stating in part, "I'm coming at you with fury," and, "piece of shit faggot fucking cock sucking cock," and "bitch, you will lose your fucking job," and "I got all the juice enough to make sure that you're holding a can in the fucking street," and "and I will keep calling until you arrest Jessy Pierre-Louis, so do your fucking job" and "when you lose your job bitch, don't say I didn't warn you," and "I will rain hell on your office and make sure heads roll," "you racist bitch" and "you assholes" and "you motherfuckers." Nicolas Pierre-Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre-Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney ... because of the screaming outbursts of rage and anger directed toward [the other ADA] ... and I [sic] and the content of what he was saying during his many calls.

"Speech is often 'abusive' — even vulgar, derisive, and provocative — and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be 'abusive' and intended to 'annoy'; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized."

Having reviewed the supporting deposition containing the statements made by the defendant, the court is of the opinion that, though vulgar and vituperative in nature, the statements do not rise to the level of "fighting words" as described by Chaplinsky and Cohen nor do they rise to the level of a true threat. In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, "I'm coming at you with fury," is too vague to be considered a true threat, but is more properly understood in context with the defendant's other statements.

A person is guilty of the violation of Aggravated Harassment [in the second degree] when "with intent to harass, annoy, threaten or alarm another person, he or she either:

(a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication in a manner likely to cause annoyance or alarm.

The statute does not seek to distinguish between speech which is protected by the First Amendment and that which is not.

Historically, this statute has been supported in caselaw by asserting that the gravamen of the offense is in the act of invasion of the complainant's privacy rights… [But i]n People v. Mangano, 100 NY2d 569, 571 (2003), the court recognized that this statute was unconstitutional, as it was applied to the defendant. In that case, the defendant left several messages in which the defendant "rained invective" upon two employees at a Parking Violations bureau. The court stated "... defendant's messages were crude and offensive but made in the context of complaining about government actions, on a telephone answering machine set up for the purpose (among others) of receiving complaints from the public. We cannot agree with the People's argument that appellant's messages fall within any proscribable classes of speech or conduct." Other courts have reached the same conclusion. See e.g., People v. DuPont, 107 AD2d 247 (App. Div. 1st Dept.) (harassment statute was void for vagueness and overbroad when applied to actions of defendant); People v. Yablov, 183 Misc 2d 880 (Crim. Ct. NY Cty) (statement "we'll get you", too vague to constitute harassment within the meaning of the statute); People v. Behlin, 21 Misc 3d 338 (Crim Ct Kings Cty) (statement that principal should watch it and that defendant was going to get her was insufficient to allege a violation of the statute).

On the federal level, courts which have considered the issue of the constitutionality of PL §240.30(1) have declared it unconstitutional on its face. See, Schlagler v. Phillips, 985 F. Supp 419 (SDNY 1997), revd on other grounds; Vives v. City of New York, 305 F. Supp2d 289, (SDNY 2003), rev'd on other grounds; Vives v. City of New York, 405 F3d 115, (2d Circ. Ct. App., 2004) opinion concurring in part, dissenting in part, in which J. Cardamone argues that court should have reached the issue of the constitutionality of PL §240.30(1), which he would have found was unconstitutional on its face:

A criminal prohibition on communicating in an annoying or alarming way is facially unconstitutional. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

It has been frequently argued as justification for this statute … that the conduct prohibited by the statute is a "trespass by telephone," and that it protects the privacy rights of the complainant. This argument fails on a number of levels.

First, this statute has been used as a grounds for prosecution when no privacy rights were at issue, as is the case at bar. See, also, People v. Mangano, supra (statements which were made to employees working in an official capacity); People v. Dupont, in which the "harassment" was accomplished by publication of a magazine.

Secondly, the Legislature has made clear through amendments to the statute that its intent is to encompass those situations where a communication occurs, regardless of who initiates that communication. Such was the source of a prosecution where the communication was initiated by a principal to the parent of a student. See, People v. Behlin, supra. One would be hard-pressed to allege a violation of privacy rights in such a situation.

Thirdly, even in those cases in which calls are initiated by the defendant, there is no basis for asserting a "trespass by telephone." Such a designation would be a prohibition based upon the content of the communication, since making a phone call, even uninvited to an individual is not a trespass. To create a trespass solely based upon the content of the communication would be violative of basic and fundamental principles of the First and Fourteenth Amendments.

Finally, the concept that "a showing that substantial privacy interests are being invaded in an essentially intolerable manner," in the context of contemporary society, must be read to be more than just making an
annoying phone call. Today, as many people in our society travel daily with their telephones in tow, making and receiving calls on the go, the privacy interests that may be impacted must be more carefully scrutinized.

To return to the case at hand, the defendant is alleged to have called an Assistant District Attorney and to have used abusive and crude language in expressing his discontent that Jessy Pierre-Louis had not been arrested for undisclosed crimes. The court has previously determined that the statements allegedly made by the defendant were not among those proscribed by prior caselaw. Rather, the calls alleged were made to the District Attorney's Office on a telephone line used for the purpose of sending and receiving calls from the public. As such, this court finds that the statute is unconstitutional as applied to this case.

The vagueness and overbreadth of this statute is readily apparent. It cries out to be reworked, and sharply limited, to those areas where speech should be circumscribed. It is not enough that charges may be dismissed on a case by case basis. As opined in [an earlier precedent],

While it is argued that the statute's unconstitutional overbreadth might be cured by restricting its reach to "fighting words" or other words which, by themselves, inflict substantial personal injury, such a "cure" would, indeed, be fraught with significant problems of its own. First, although to be sure, a statute ought normally to be saved by construing it in accord with constitutional requirements, it is basic that the very language of the statute must be fairly susceptible of such an interpretation; put otherwise, the saving construction must be one which the court "may reasonably find implicit" in the words used by the Legislature.

Accordingly, and consistent with First Amendment principles, this case is hereby dismissed.

Nature and Art

(Eugene Volokh)

I generally don't pay much attention to photography (or art more broadly), but this array of photographs of joggers after a sprint, matched against their photographs in "real life", struck me as quite interesting. "I wanted to show the difference between our natural and brute side versus how we represent ourselves to society," said photographer Sacha Goldberger. Thanks to GeekPress for the pointer.

No First Amendment Right to Bark at a Police Dog

(Eugene Volokh)

So an Ohio trial court judge held last Friday in State v. Stephens. There had been an earlier case on the subject in Ohio, State v. Gilchrist (Ohio Ct. App. 2003), and the Gilchrist trial judge found that applying the law to the defendant did violate the First Amendment, a decision that the state apparently didn't properly challenge on appeal. But the judge in the most recent case concluded that Gilchrist was limited to situations where the defendant was quite far from the dog. In a case where the defendant was much closer to the dog, the law (here, a city ordinance banning "willfully and maliciously taunt[ing], torment[ing], [or] teas[ing] ... any dog used by the Police Department in the performance of the functions or duties of such Department") could constitutionally be applied to him.

New Survey of Muslim Youth (Age 15 to 25) in Malaysia and Indonesia

(Eugene Volokh)

This report (Values, Dreams, Ideals: Muslim Youth in Southeast Asia, with a pointer to the questionnaire and the raw data) struck me as interesting, because Malaysia and Indonesia are often mentioned as places in which a more moderate form of Islam is generally practiced, and because Indonesia has the largest Muslim population of any country in the world. The results are pretty complicated, so let me just give a couple of reported results, based on the questionnaire and raw data document (many of these items don't seem to be mentioned in the report, though perhaps I missed them):

The statement "Terrorism gives Islam a bad image" was endorsed by 55.3% to 27.2% among Indonesian youths and "Terrorism gives Islam a bad name" was endorsed by 59.3% to 39.8% among Malaysian youths.The statement "Suicide bombers are needed to defend Islam" was rejected by 77.5% to 15.5% among Indonesian youths and 55.8% to 43.3% among Malaysian youths.The question "Do you think the Quran should replace the 1945
constitution?," was answered "no" by 75.3% to 20.4% of Indonesian youths, but "In your view, should the Quran replace the constitution of your country?," was answered "yes" by 71.6% to 25.2% among Malaysian youths.The statement "It's OK to be gay or lesbian" was rejected by 98.8% to 0.6% among Indonesian youths (though note that the question did not ask about whether such behavior should be outlawed), and 99.4% to 0.5% among Malaysian youths.The statement "The cartoonist who drew the image of the Prophet Muhammad had freedom of expression" was rejected by 70.5% to 19.7% among Indonesian youths and "The cartoonist who made the Mohamed-Cartoons had freedom of expression" was rejected by 82.8% to 15.5% among Malaysian youths.The statement "Osama bin Laden is an Islamic liberation fighter" was endorsed by 51.1% to 28.1% among Indonesian youths and "Osama bin Laden is a freedom fighter" was endorsed by 62.4% to 33.3% among Malaysian youths. This makes me wonder whether the endorsement of "terrorism gives Islam a bad image" tends to include the view that Bin-Laden-style terrorism gives Islam a bad image, or tends to exclude it because so many view Osama bin Laden as a "freedom fighter" and thus presumably not a "terroris[t]."The statement "I like the US more since Barack Obama became president" is endorsed by 50.2% to 40.5% among Indonesian youths, but rejected by 60.8% to 35.8% among Malaysian youths.

There's a lot more there in the questionnaire and raw data file; check it out yourself, and please let me know if I erred in any of my summaries above. Many thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Justice Liu

(Jonathan H. Adler)

The Los Angeles Times is reporting that California Governor Jerry Brown is nominating University of California at Berkeley law professor Goodwin Liu to the California Supreme Court.  President Obama had nominated Liu to the U.S. Court of Appeals for the Ninth Circuit, but Liu withdrew his nomination after Senate Republicans blocked his confirmation.

(Hat tip: Ed Whelan)

"A Revenge Plot So Intricate, the Prosecutors Were Pawns"

(Orin Kerr)

The New York Times has a remarkable — and remarkably disturbing — story about a man who framed his girlfriend for several armed robberies after she filed rape charges against him. Fortunately, his plot unraveled before her case went to trial; now he is the one facing charges.

Which Part of "Make No Law" Don't I Understand?

(Eugene Volokh)

I've heard many people argue that "Congress shall make no law ... abridging the freedom of speech, or of the press" means that all speech restrictions — or at least all federal speech restrictions — are unconstitutional, period. Which part of "make no law" don't you understand?, some people colorfully argue. Well, I understand "make no law" just fine, as do those who support the constitutionality of some speech restrictions. The real difficulty is with "the freedom of."

Let's begin with "the freedom of." Note that the First Amendment doesn't say that Congress shall make no law restricting speech or press; rather, Congress can't restrict "the freedom of speech" and "the freedom of the press." Maybe that's just a fancy way of saying "speech" and "press." But maybe it suggests that "the freedom of speech" and "the freedom of the press" were references to broader legal concepts that were used to refer to limited freedom, not unlimited freedom. For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

This interpretation is supported, I think, by the pre-First-Amendment state constitutional free press provisions (and, much less commonly, free speech provisions) that are written in absolute terms, yet coexisted with some speech restrictions, chiefly libel law. Thus, from Virginia in 1776: "That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." From Pennsylvania in 1776 (closely followed by Vermont in 1777): "That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained." From Maryland in 1776: "That the liberty of the press ought to be inviolably preserved." From North Carolina in 1776: "That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained." From Massachusetts in 1780 (closely followed by New Hampshire in 1784): "The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth." From Georgia in 1789: "Freedom of the press and trial by jury shall remain inviolate forever." (Provisions in later state constitutions were much more likely to specifically provide that "abuse" of the freedom could lead to liability, but my sense is that those new provisions were not seen as deliberately shifting from a categorical protection for speech and press to a more limited protection.)

To my knowledge, these provisions were never seen as categorically banning libel and slander law. My sense is that there were nearly no calls, even unsuccessful calls, for reading those provisions that broadly — people did think that the provisions limited the scope of slander and libel law (both civil liability and the law of criminal libel), but not that the provisions categorically forbade such liability. Some saw the freedom of the press as broader and some as narrower. Some saw the freedom of the press as including the freedom to publish what had been earlier seen as "seditious libel" and some saw it as not including this. Some saw it as chiefly forbidding licensing schemes (archetypical "prior restraints") and perhaps judicial injunctions, while others saw it as also limiting the imposition of civil and criminal liability by juries.

But nearly everyone, as best I can tell, saw "freedom of speech" and "freedom of the press" as providing less than complete constitutional protection for spoken or printed words. And this suggests that the term "freedom of" referred to some understanding that there is a proper scope of such freedom (even if the scope was unsettled in some particulars), rather to unlimited freedom to say or print anything one pleases. It's much like, if tomorrow a state enacted a law protecting "the freedom to marry," we probably wouldn't think that it means the freedom to marry a 10-year-old, or the freedom to marry one's daughter, or (depending on the circumstances) even the freedom to marry several people at once. "The freedom to marry" would be seen as referring to a broad but not unlimited concept that is less than the freedom to marry anyone one pleases.

Now, to be sure, during and after the controversy over the Sedition Act of 1798, some foes of the Act argued that the First Amendment did bar Congress from any authority to restrict spoken or printed words. But I'm rather skeptical that this was then or is now a sound interpretation of the constitutional text. After all, as I noted, and as some others argued at the time, even seemingly categorical protection for "freedom of the press" in state constitutions wasn't seen as precluding some restrictions on the press — "freedom of the press" was seen as the freedom for many uses of the press but not all uses. It stands to reason that equally categorical protection for "freedom of the press" in the federal Constitution would likewise provide protection for many uses of the press but not all uses.

And though it's fair to say that national opinion and legal opinion in the early 1800s came to be against the Sedition Act, my sense is that this stemmed from the general conclusion that seditious libel should not be seen as outside the "freedom of the press"; seditious libel prosecutions even at the state level died down by the 1810s and 1820s. I don't think it stemmed from a conclusion that Congress indeed lacked all power over speech and press, even when the restriction would be within an enumerated power of Congress (say, the power over D.C., the territories, or the post office) and even when similar state restrictions would be constitutional.

This notion that the freedom of speech and of the press is not unlimited makes sense. A threat to kill the President is literally speech. So is "your money or your life," said to someone in a dark alley. Assume no weapon is brandished, and the victim escapes, so that no money changes hands; then "your money or your life" is nothing but speech. Attempted fraud is often nothing but speech. The list could go on. There are, I recognize, arguments for barring the government from punishing any of this speech (likely arguments based on the value of super-sharp lines and of trying to eliminate all risk of valuable speech being punished). But if one is to conclude that the government (or even just the federal government, acting within its enumerated powers) is so categorically restrained by the First Amendment, I think it would take some very powerful and clear historical and textual evidence that the First Amendment has indeed been understood this absolutely. As I mentioned, the history cuts against any such absolutist position, and the text — especially given the history — does not actually support that position.

Readers of this blog know that I take a broad view of First Amendment protection. I wish I could just say "the Constitution says it, I believe it, that settles it." But, for the reasons I give here, I don't think such an argument would be sound.

"How Campaign Finance Laws Made the British Press So Powerful"

(Eugene Volokh)

That's the title of an article in The New Republic. England apparently sharply constrains campaign spending (both by candidates and by advocacy groups that are acting independently of the candidates), so unsurprisingly this means dramatically greater power for newspapers. And equally unsurprisingly this is leading the author to call for still more restrictions, this time on newspapers.

To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

The most obvious strategy in this regard is to limit the concentration of the media. Given the unrivalled capacity to engage in unrestrained electoral advocacy that comes with owning a newspaper, it is important that no single person or company be able to dominate the market. Others, by contrast, have called for the regulation of media content. Most of the content regulations being discussed at present are aimed at stopping invasions of privacy and preventing the acquisition of information through hacking and blagging. There have, however, been some calls that newspapers be required to cover political matters with due impartiality, as is required on UK television and radio. But even at the height of anti-Murdoch feeling, such a far-reaching measure seems very unlikely to be pursued....

[W]hile the robust political tradition of the UK press should not be sacrificed, it is time to think about how newspapers can better reflect a wide range of opinions and not give so much power to the proprietor.

Thanks to Paul Sherman (Institute for Justice's Make No Law blog) for the pointer.

PS on Consensus

(Kenneth Anderson)

One additional comment about the nature of consensus.  Consensus is sometimes offered as a sign of a respectful political system — one that respects every stakeholder so much that each is given the possibility of a true hold-up.  It would be more accurate to say that consensus only works where the community of stakeholders has sufficient common interests that holdups will be rare, and more often a set a informal process rules — sometimes nearly invisible to outsiders — that structure when it is legitimate to invoke a hold up and when it is not.  In that regard, consensus requires a level of social trust that goes far beyond the requirements of majoritarian democracy.

But there is a flip side to this as well.  Consensus also takes root in circumstances where trust is far lower than it would be in a majoritarian system.  Consensus — as a system of each having a holdup — also develops in circumstances in which participants do not trust what the majority would do, and fear that the majority would help themselves with regard to the minority and that they might also change the process rules so that things cannot (easily or practicably) get changed back.  One vote, one time is the extreme example.  In those circumstances, consensus develops because it gives each stakeholder a veto because they have no trust in the longer run operations of a majoritarian system.

Consensus can reflect, in other words, an extraordinarily high trust society or an extremely low trust one.  Majoritarian processes tend to operate somewhere in the middle — and are both more dynamic for that reason, but also, strikingly, more fragile.

(Update:  Actually, the correct answer might well be ... a majoritarian democracy is the privilege of a very high trust society but which has at least the possibility of sharply different policies that can only be settled by a majoritarian process leading down one path or the other, but in which high trust enables the currently losing side to hold out the possibility of, if not total revision, serious revision down the road.  The combination of high trust and possibly high dissensus around policy is potentially unstable and hence fragile.  Cue Edmund Burke.)

A Couple of Things That Puzzle Me in the Debt Ceiling Negotiations

(Kenneth Anderson)

Watching the current negotiations unfold, I remain puzzled by a couple of things.

First, what would happen — purely hypothetically, obviously — if the Republicans suddenly announced that they would support raising the debt ceiling to a trillion trillion dollars — infinity.  The immediate effect is to remove the (contested) matter of default from the table.  One might almost say, stretching concepts a bit, that the liquidity problem had been removed from the discussion.  So the rating agencies should now go away?  But isn't the far more important issue one of sovereign solvency, not liquidity?  The immediate pressure of a default, if a default were assumed to be truly at risk, is gone.  Okay.  So then the question becomes not the default, but the debt.  The rating agencies, and the markets, now have to focus on the longer term, but less and less long term, question, is the debt sustainable?

Another way to put this, I suppose, is that Democrats are arguing about liquidity; Republicans about solvency.  I understand that the debt ceiling, or my hypothetical removal of it, creates many "signaling" issues both to the other political party as well as to rating agencies and markets.  The assumption has been that Republicans holding tough on the debt ceiling is signaling behavior about their seriousness in addressing the solvency question.  If that's so, then dropping the debt ceiling issue is interpreted as surrender.

But it is possible that the signal sent by raising the ceiling effectively to infinity, not incrementally and in amounts that take the debt ceiling as an important barrier, is to signal that it is no longer at issue.  No longer at issue, that is, in the sense that the Republicans are brushing aside the liquidity question in order to force the only parties that the Democrats will care about — markets and rating agencies — to engage on the question of solvency.  The signal, presumably, is that the attempt by Democrats to avoid the solvency question by using the pressure of the liquidity-default trigger has been called (from the Republicans' view) as a bluff, and now the Democrats face the markets and the rating agencies not through the Republicans, but directly and unbuffered, and on the question of the deficits and the debt, not the ceiling.

What would be the effect of my hypothetical?

Second, I don't understand the F**k Washington rhetoric.  I mean, sure, at 40,000 feet, everyone can say that Washington is the problem.  I get that; I agree on most things, but not specially on this issue.  Sure, this "negotiation" reflects the basic breakdown of Congress — but it also reflects that even a more functional Congress would still break down into bitter disagreement on this issue.  Come down to 20,000 feet, in other words, and the happy consensus breaks down into a near perfect dissensus because people genuinely disagree.  The call to come together is illusory, because there is a genuinely deep fault line around fundamental economic policy.

I call Washington all f**ked up and mean, because no rational person would seriously entertain default.  You call Washington all f**ked up and mean, because no rational person would agree to these kinds of deficits.  We think — in the current twitter-talk of a pox on both their DC houses — Washington is a mess because we can't find a compromise.  The truth is, however, we don't actually think there is much room to compromise and, given that our principles on this represent a fairly sizable difference in world view, that's probably right.  The structural problem of Washington is that everyone has a hold-up; "let's vote and majority policy wins" doesn't work because we've allowed a consensus system informally to take hold, rather than a majoritarian one (albeit one revisable at least in part by a future majority).

Third, although the negotiations seem to appear amenable to compromise and splitting of differences — it's just how much of this and how much of that — this is deceptive.  The structure of the game is closer to chicken, with sharp downside discontinuities — train wrecks — built into the nature of the game.  Meaning, if you are the Republicans, your only ability to address the long term deficit issue is by using the debt ceiling as hostage; you have some room to manuever as to when increases are triggered and how much, but it is fundamentally your hostage.  If you are the Democrats, by contrast, then you have an incentive to raise the stakes around the hostage on the downside as much as possible — no Social Security check for Grandma — and hold your own hostage on tax increases.  Again, I don't think it's simply bad negotiating on each side that has led to so much brinkmanship — apparently incremental and continuous issues, presumably favorable to compromise, are actually much more hostage-like, not surrenderable in parts, as it were.  It seems to me much more like a game of chicken, and the sides have not been irrational, from their own perspectives, in keeping their guns to their hostages' foreheads.

But perhaps I am wrong about the nature of the game at issue.  If you want, explain the game theory of this particular negotiation.  If you want to comment, please remain with these issues; I don't think there's much point in rants on why one side or the other is right or wrong.