Henning [Wayne State]: Political Harassment Indictment Commentary
Henning [Wayne State]: Political Harassment Indictment

Peter Henning, Wayne State University Law School:

"The former New England Regional Director of the Republican National Committee, James Tobin, was charged in a four-count indictment on Wednesday, Dec. 1, with conspiracy to make harassing telephone calls to the New Hampshire Democratic headquarters on election day in 2002.  According to the indictment, Tobin worked with Charles McGee (who is not charged in the indictment), the Executive Director of the New Hampshire Republican Party, to hire a vendor to make telephone calls to five telephone numbers associated with the New Hampshire Democratic Party and one number for the Manchester Professional Firefighters Association, to prevent them from being able to use the telephones as part of a get-out-the-vote program.  The vendor would place the calls, and then hang up once the telephone was answered, and then place calls again to the numbers.  The conspiracy count and substantive charges allege violations of 47 U.S.C. 223(a)(1)(C), which makes it a crime for any person who

makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;

The statute does not require any actual conversation, so it covers a wider range of conduct than, say, 18 U.S.C 875, which requires the interstate communication of an actual threat.  An issue will be whether calling and hanging up constitutes harassment.  In U.S. v. Lampley, 573 F.2d 783 (3d Cir. 1978), the Third Circuit stated that "in enacting section 223 the Congress had a compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives."  Is interfering with a political party's use of the telephone for political purposes the same as causing them "fear, abuse or annoyance"?  The indictment was returned in the District of New Hampshire, and the prosecutors are from the Computer Crime Section in Main Justice." [December 2, 2004; White Collar Crime Prof Blog has the post]

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