Some Non-Foley Improper Communications

The Eleventh Circuit decided an interesting case yesterday: US v. Eckhardt. They affirmed a conviction for making obscene phone calls.

Initially, I was just going to make some stupid comments, but as I read the opinion, I think they may have made the wrong decision. No doubt this guy said some outrageously awful stuff, and you should NOT read this opinion unless you have really thick skin. But I don’t know if what he said is a crime.

The charges:

In Counts V and VI of the Indictment, the government charged Eckhardt with violating § 223(a)(1)(A). Section 223(a)(1)(A) prohibits individuals from using, in interstate communications, a telecommunications device to knowingly make “any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person . . . ” Id.

The definition of obscene:

In Miller [v. California], the Supreme Court defined obscenity as a work that (1) taken as a whole, appeals to the prurient interest under contemporary community standards,(2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615.

My first issue would be that this definition applies to “a work.” Phone calls are not “a work.” Hence, they cannot be obscene. At least not under this definition. Would this have succeeded? I don’t know, the defendant did not make this argument.

What he did argue is that the calls did not satisfy the third element. He said he made them because he was mad at his employer. The facts are not very clear, but it sounds like he was a contract employee for a local chapter of the Teamsters. His phone calls were to an office worker and in those calls he said things like this [these are the clean parts]:

Hey Sue! Why don’t you take one of them f****n’ school buses or one of them f****n’ passenger buses and use it like a vibrator . . . .

You listen to this. I said no over the road, I’m stayin’ right where I’m at.

No garbage, no over the road, no nothin’

To me, that sounds like he is complaining about a job assignment. His purpose was not to make sexually obscene comments; his purpose was to complain about his job and he used sexually obscene comments to do it.

He cited two sort of similar cases to support his claim that his intent to complain meant the calls were not obscene. In one, a man in the middle of a divorce proceeding used this type of language in a call to his wife. In another, a prisoner used this type of language against a US Attorney. In both cases, because the defendant had some legitimate purpose, the calls were not obscene.

The court quickly dismissed both cases, saying the current case did not involve a divorce or a government official. But that seems a bit shaky. The principle from those cases seems to apply here, even if the facts are different.

So I don’t know. This guy’s a loser, no doubt. But a criminal? 

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