Appeals court dismisses phone-harassment conviction on First Amendment grounds

Wednesday, September 22, 1999

The telephone-harassment conviction of a man who called a U.S. attorney for the District of Columbia numerous times has been thrown out by a federal appeals court due to First Amendment concerns.

In April and May of 1997, Ion Cornel Popa, a political refugee from Romania, allegedly made seven phone calls to Eric Holder, an attorney with the U.S. Attorney's Office in the District of Columbia.

In two messages, Popa referred to Holder as a “a criminal, a Negro” and a “criminal with cold blood.” In at least one of his calls, Popa allegedly complained that in 1992 two African-American officers beat him after he called the police to report a threat made against him.

A federal court jury convicted Popa of violating a federal telephone-harassment law. which criminalizes anonymous phone calls made “with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communication.”

On appeal to the U.S. Court of Appeals for the District of Columbia, Popa contended the phone harassment law was unconstitutional on its face and as applied to his conduct. Popa argued that the statute violated his First Amendment right to engage in critical, political speech to a public official.

In its Sept. 17 opinion in U.S. v. Popa, the federal appeals court determined that Popa's conviction should be set aside because of First Amendment concerns. The court agreed with the defendant's argument that the statute could punish someone who engaged in critical speech of a political nature.

“The statute sweeps within its prohibitions telephone calls to public officials where the caller may not want to identify himself other than as a constituent and the caller has the 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 unaddressed,” the court wrote.

The government had argued that Popa's conviction should stand, in part, because he had not engaged in any political speech. “We reject that position, because complaints about the actions of a government official were a significant component of his calls,” the court wrote.

The court concluded: “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.”

Evelina Norwinski, the assistant federal public defender for the District of Columbia who represented Popa, said that the case stands for the proposition that individuals cannot be prosecuted under the phone-harassment law if their speech is “of a political nature.”

“Oftentimes we intend our speech to public officials to be annoying or harassing because we want to prompt public officials to do something,” she said.

Channing Phillips, spokesman for the U.S. Attorney's Office, said the Justice Department has not decided whether to appeal the ruling. Phillips said the U.S. Attorney's Office would not comment on the federal appeals court ruling until a final decision had been made on whether to appeal the ruling.