Even I Think This is Vulgar
Howard Bashman, lord of all things appellate, posted a link to a great Eleventh Circuit Court of Appeals case today. Here's what happened in US v Eckhardt...
The feds charged Eckhardt with a violation of the Communications Decency Act (47 USC § 223). He claimed that he didn't make the calls, the statute was unconstitutionally vague, the speech was protected, the speech was not obscene, and the speech was not harrassing (For those of you non-law types, you can argue in the alternative like this. It doesn't sound coherent, but you're allowed to throw as many defenses at the court as you can). It was futile though, and Eckhardt was convicted and sentenced to 24 months in prison.
On appeal, the Eleventh Circuit shot down all of Eckhardt's arguments. Here they take on the constitutionality issue...
During the 1980's, Robert Eckhardt occasionally worked for the Teamsters Union Local 390 in south Florida. Eckhardt was not a full union member and he worked only when called. Eckhardt's relationship with the union deteriorated and he began making threatening calls to its office. In 1994, he pled guilty to making threatening phone calls to the union in violation of 18 U.S.C. § 875(b).For those of you playing along at home who aren't familiar with the federal criminal code, 18 USC § 875(b) criminalizes interstate threats of violence (as well as other things). Unfortunately, Eckhardt couldn't quit his phone shenanigans and he kept calling the union...
During that year and a half period, Eckhardt made approximately 200 calls to a voicemail extension belonging to Local 769 office worker Sue Ann Creech. Although Ms. Creech never met Eckhardt, he called her number up to 30 times per week between March 28 and June 8, 1999.If you're like me, you're wondering what Eckhardt said. If you're like me, you're happy that the judges put the transcripts in the footnotes. Avert your eyes, children. Here's the first one...
Hey Sue! Why don't you take one of them fuckin' school buses or one of them fuckin' passenger buses and use it like a vibrator up your cunt. When your mother and father died, did they put the casket in a bus? Did they? And if they're not dead, when they do die, I hope they stick it in a bus. Say hello to Tony. Capiche? Remember, use them buses and them fuckin' garbage trucks like a fuckin' dildo and stick 'em up your cunt. Good bye.Pretty salty, huh? There's more...
Hey! You sent that little greasy bitch here uh? And take that little guinea fuckin' cunt with that pimple face fuckin' bitch from fuckin' Fort Lauderdale? Or some of them kids from fuckin' Florida. You listen to this. I said no over the road, I'm stayin' right where I'm at. And you fuck up, here's your threat pal, have me locked up. This way I can fuckin' wet my balls off. Fuck you! How does that sound? Fuck you! No garbage, no over the road, no nothin' Fuck you. There's your threat, have me locked up. Go ahead. Take your conventions and everything else and stick 'em up your mother's cunt. (laughs)What, no "good bye" this time? That's not very polite. I know what you're asking yourself: how does one "wet" his balls off? Good question. The judges explain in the footnote that Eckhardt actually said "rat" but the record was incorrect and Eckhardt didn't object.
The feds charged Eckhardt with a violation of the Communications Decency Act (47 USC § 223). He claimed that he didn't make the calls, the statute was unconstitutionally vague, the speech was protected, the speech was not obscene, and the speech was not harrassing (For those of you non-law types, you can argue in the alternative like this. It doesn't sound coherent, but you're allowed to throw as many defenses at the court as you can). It was futile though, and Eckhardt was convicted and sentenced to 24 months in prison.
On appeal, the Eleventh Circuit shot down all of Eckhardt's arguments. Here they take on the constitutionality issue...
Eckhardt was tried and convicted of anonymously making "annoying, abusive, harassing, or threatening" telephone calls in violation of 47 U.S.C. § 223(a)(1)(C). Eckhardt asserts that § 223(a)(1)(C) is overbroad because it potentially criminalizes protected speech and vague because it failed to give him notice that his conduct was forbidden. The Sixth Circuit rejected an identical challenge to § 223 in United States v. Bowker (citations omitted).I don't think that the Supreme Court will be sympathetic to Eckhardt, so he better get used to the idea of federal prison.
...
Eckhardt called his victim approximately 200 times during a year and a half period. Although Eckhardt claims for the first time on appeal that the calls addressed matters of public concern (i.e. alleged corruption), his calls rarely addressed anything that could be construed in that manner. The overarching purpose of Eckhardt's sexually laced calls was to harass and frighten Ms. Creech. "This type of speech is not constitutionally protected."
