1st Circuit Construes Federal Phone Harassment Statute

January 7, 2009. The U.S. Court of Appeals (1stCir) issued another opinion in US v. Tobin, a case regarding application of 47 U.S.C. § 223(a)(1) to political operatives who use telemarketing techniques to tie up the phone lines of the other political party on election day to disrupt a turn out the vote effort.

The Court of Appeals affirmed the District Court's judgment of acquittal. Tobin had a purpose to disrupt phone calling, not to harassment people, as required by the statute. Phone call disruption is not a crime under Section 223(a).

In 2002 James Tobin was New England Regional Director of the Republican National Committee and Regional Political Director for the National Republican Senatorial Committee. He was involved in a scheme, which was put into effect for two hours, to disrupt the activities of the New Hampshire Democratic Party and a union that supported it.

Tobin's purpose was to disrupt phone operations, not to harass or to emotionally upset anyone.

At trial, Tobin was convicted of conspiracy, aiding and abetting, and violation of 47 U.S.C. § 223(a)(1)(D), and sentenced to ten months imprisonment. He appealed. In its previous opinion, reported at 480 F.3d 53, the Court of Appeals reversed and remanded. On remand, the District Court held that a specific purpose to cause emotional upset in a person at the telephone number called was required. It further found that the US had insufficient evidence to meet this mens rea requirement. Hence, it entered a judgment of acquittal. The US then brought the present appeal.

The US argued that 47 U.S.C. § 223(a)(1)(D)'s intent to harass any person at the called number does not require purpose, but only knowledge of probable consequences.

The Court of Appeals affirmed the judgment of the District Court.

The Court of Appeals noted that some states have statutes that prohibit not only harassment, but also disruption of phone calling. In contrast, the Congress has not banned disruption. It wrote that "The apt solution is not to stretch out of shape a law about harassment by ringing, but for Congress to prescribe such deliberate interference by whatever means."

This case is U.S.A. v. James Tobin, an appeal from the U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 08-1340, an appeal from the U.S. District Court for the District of New Hampshire, Judge Steven McAuliffe presiding. Judge Lynch wrote the opinion of the Court of Appeals, in which Judges Boudin and Stahl joined.