UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

POPA, ION CORNEL


98-3017a

D.C. Cir. 1999


*	*	*


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 


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


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


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


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




__________

n * 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


"[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,


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 


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




__________

n * 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


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


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.