                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 18-30171
           Plaintiff-Appellee,
                                        D.C. No.
              v.                  2:17-cr-00212-SAB-1

ROBERT WAGGY,
        Defendant-Appellant.             OPINION


     Appeal from the United States District Court
        for the Eastern District of Washington
    Stanley Allen Bastian, District Judge, Presiding

         Argued and Submitted July 11, 2019
                 Portland, Oregon

               Filed September 5, 2019

     Before: A. Wallace Tashima, Susan P. Graber,
          and John B. Owens, Circuit Judges.

              Opinion by Judge Graber;
              Dissent by Judge Tashima
2                   UNITED STATES V. WAGGY

                            SUMMARY*


                           Criminal Law

   The panel affirmed a conviction under the Assimilative
Crimes Act for felony telephone harassment in violation of
Washington Revised Code section 9.61.230(1)(a), (b), arising
from the defendant’s repeated telephone calls to a Veterans
Administration medical center.

    The defendant argued that section 9.61.230 violates the
First Amendment as applied to him because he just wanted to
talk about his medical care and the VA’s unpaid bills, and
didn’t intend or want to harass the secretary who answered
the calls. The panel held that section 9.61.230(1)(a) requires
proof that the defendant specifically intended to harm the
victim when initiating the call; and that as applied here, that
requirement ensures that the defendant—who doesn’t
challenge the sufficiency of the jury’s finding that he had the
intent required by the statute—was convicted for his conduct,
not for speech protected by the First Amendment.

    The panel addressed other issues in a memorandum
disposition.

    Dissenting, Judge Tashima wrote that section 9.61.230(1)
is unconstitutional under the First Amendment, as applied in
this case, because it criminalizes speech that is—despite its
vulgarity and harassing nature—public or political discourse
protected by the First Amendment.

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. WAGGY                    3

                       COUNSEL

Matthew Campbell (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.

Timothy J. Ohms (argued), Assistant United States Attorney;
Joseph H. Harrington, United States Attorney; United States
Attorney’s Office, Spokane, Washington; for Plaintiff-
Appellee.

Eugene Volokh, Scott & Cyan Banister First Amendment
Clinic, UCLA School of Law, Los Angeles, California; Aaron
H. Caplan, Loyola Law School, Los Angeles, California; for
Amici Curiae American Civil Liberties Union of Washington,
Pennsylvania Center for the First Amendment, and Professors
Aaron H. Caplan and Eugene Volokh.

Robert W. Ferguson, Attorney General; Megan D. Lin,
Solicitor General’s Office Fellow; Callie Castillo, Deputy
Solicitor General; Office of the Attorney General, Olympia,
Washington; for Amicus Curiae State of Washington.


                        OPINION

GRABER, Circuit Judge:

    Defendant Robert Waggy repeatedly telephoned the
Mann-Grandstaff Veterans Administration Medical Center
(“Center”), a Department of Veterans Affairs (“VA”) facility
in Spokane, Washington. Some of those calls resulted in
federal charges of telephone harassment in violation of
Washington Revised Code section 9.61.230(1)(a), (b), which
4               UNITED STATES V. WAGGY

applies to federal land in Washington State through the
Assimilative Crimes Act, 18 U.S.C. § 13. A jury convicted
Defendant of two of the charges. On appeal, he argues
primarily that the Washington statute violates the First
Amendment as applied to his conduct. We disagree and
affirm. We resolve Defendant’s jury instruction claims in a
memorandum disposition filed concurrently with this opinion.

    FACTUAL AND PROCEDURAL BACKGROUND

    Defendant, a Marine Corps veteran, has an extensive
history with the Center. At various times, Defendant has
been barred from the premises because of his disruptive
behavior and frequent threats. He was previously convicted
of harassment and trespass for incidents involving the Center.
Because Defendant is not allowed on the premises, he
receives VA-authorized medical care through private
physicians instead. The VA also restricts Defendant’s contact
with the Center. Defendant has one point of contact whom he
is permitted to call—a “Care in the Community”
Supervisor—and the Center established a phone line
specifically for Defendant’s use.

    Defendant asserts that the VA owes him millions of
dollars for various reasons and that, because the VA has
failed to pay the debt, he is now the legal owner of the
Center’s land and facilities. Many of his telephone calls to
VA employees addressed this dispute and his related threats
to seize the Center by force.

    In April 2016, Defendant called the Center several times
in one day. Each time, he dialed the Spokane VA’s 1-800
number and asked to speak to the director. Defendant was
transferred to the director’s office. Sandra Payne, one of the
                     UNITED STATES V. WAGGY                                5

Center’s executive secretaries, answered the April 2016 calls,
which underlie the charged counts.

     Defendant was charged with two counts of violating
Washington Revised Code section 9.61.230(1)(c) (Counts 1
and 6); one count of violating section 9.61.230(1)(a),
(c) (Count 2); two counts of violating section 9.61.230(1)(a),
(b) (Counts 3 and 4); and one count of violating section
9.61.230(1)(b) (Count 5). Section 9.61.230(1) provides in
relevant part:

              (1) Every person who, with intent to
          harass, intimidate, torment or embarrass any
          other person, shall make a telephone call to
          such other person:

              (a) Using any lewd, lascivious, profane,[1]
          indecent, or obscene words or language, or
          suggesting the commission of any lewd or
          lascivious act; or

              (b) Anonymously or repeatedly or at an
          extremely inconvenient hour, whether or not
          conversation ensues; or

              (c) Threatening to inflict injury on the
          person or property of the person called or any
          member of his or her family or household;

          is guilty of a gross misdemeanor . . . .



   1
       “Profane” was not included in the jury instructions in this case.
6                    UNITED STATES V. WAGGY

    During his first call (“Count 2”),2 Defendant demanded
that the VA pay him $9.25 million or “get off [his] property.”
He threatened to come to the Center to seize the property and
to “use force to defend himself.” Payne testified that
Defendant’s threat frightened her and that he told her to “do
[her] fucking job.” After Payne asked Defendant to “be
respectful and to keep the call professional,” he screamed at
Payne and called her a “fucking cunt.” Payne testified that
Defendant “was screaming, not just yelling. I mean, there’s
a difference between yelling and screaming. And he was
screaming into the phone.” Payne then hung up on
Defendant; “I can handle yelling, I can handle screaming, but
I can’t handle being called names like that.” Count 2 was
dismissed by the magistrate judge at the conclusion of the
government’s case.3

    Defendant immediately called back (“Count 3”). Payne
testified:

           Payne: It’s never over. He always calls back.
           So he called back.

           Question: How did you know he was calling
           back?

           Payne: His caller ID. It was the same phone
           number I had just hung up with. And when I
           picked up the phone, he was just screaming,
           still yelling, um, just obscenities.


    2
        The government voluntarily dismissed Counts 1 and 6 before trial.
    3
      The parties consented to having a magistrate judge conduct
Defendant’s jury trial.
                UNITED STATES V. WAGGY                     7

Payne testified that Defendant used “a lot of F bombs,” such
as “Fuck everything. So, to do my, do my fucking job and to
fucking listen[.]” Payne also testified that, except for the
obscenities, she could not understand what Defendant’s
words meant. Asked whether she could “make sense of what
he was saying at that point,” Payne responded, “I really
couldn’t understand him on that . . . second call”; his tone
was “[b]eyond elevated.” Defendant hung up on Payne. The
jury found Defendant guilty of Count 3.

    Defendant called back a third time (“Count 4”). He
reiterated his demands for “his property” or “his money.”
Payne informed Defendant that she would “take a message
and get it to the appropriate department.” Defendant called
Payne a “fucking cunt” again. Payne hung up the phone,
testifying that Defendant “was so irrational on the phone, he
was just screaming, like screaming, um, and it made me
scared. I didn’t want to talk to him any more.” The jury
found Defendant guilty of Count 4.

    Defendant called back again. Payne did not answer the
phone, testifying that she felt that “it would never end.”
Defendant called yet again, and Payne refused to answer for
the second time. Payne then walked away from her desk, so
Defendant’s final two phone calls also went unanswered.
Those four calls were charged collectively as “Count 5.” The
jury found Defendant not guilty of Count 5.

     Defendant filed a motion for judgment of acquittal,
arguing that Washington Revised Code section 9.61.230(1)(a)
was unconstitutional as applied to his conduct. The
magistrate judge denied the motion and sentenced Defendant
to five years’ probation.
8                UNITED STATES V. WAGGY

    Defendant appealed his conviction to the district court.
He argued that his conviction violated the First Amendment
as applied to his conduct and that the jury instructions were
misleading, overbroad, and vague. The district court
affirmed. Defendant timely appeals. Reviewing de novo,
United States v. Laursen, 847 F.3d 1026, 1031 (9th Cir.
2017), we affirm.

                       DISCUSSION

    The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. “[A] law imposing criminal penalties on protected
speech is a stark example of speech suppression.” Ashcroft
v. Free Speech Coal., 535 U.S. 234, 244 (2002). The right to
free speech, however, “is not absolute.” Ashcroft v. ACLU,
535 U.S. 564, 573 (2002). Laws or policies that target
conduct, but that burden speech only incidentally, may be
valid. See, e.g., Virginia v. Hicks, 539 U.S. 113, 123–24
(2003) (holding that the defendant had not shown that the
contested policy “prohibits a ‘substantial’ amount of
protected speech in relation to its many legitimate
applications”). Additionally, there are traditional narrow
carve-outs to the First Amendment, which allow Congress to
restrict certain types of speech, “including obscenity,
defamation, fraud, incitement, and speech integral to criminal
conduct.” United States v. Stevens, 559 U.S. 460, 468 (2010)
(citations omitted).

    “An as-applied challenge contends that the law is
unconstitutional as applied to the litigant’s particular speech
activity, even though the law may be capable of valid
application to others.” Foti v. City of Menlo Park, 146 F.3d
629, 635 (9th Cir. 1998). Defendant argues that section
                     UNITED STATES V. WAGGY                                 9

9.61.230 is unconstitutional as applied to him because he just
“wanted to talk about his medical care and the VA’s unpaid
bills”; “he didn’t intend to—or want to—harass Ms. Payne.”
That characterization of Defendant’s intent is untenable in
light of the jury’s finding (the sufficiency of which Defendant
does not challenge on appeal) that he had the intent required
by Washington Revised Code section 9.61.230(1): the “intent
to harass, intimidate, torment or embarrass any other person.”
Accordingly, in deciding whether the Washington telephone
harassment statute is unconstitutional as applied to
Defendant’s conduct, we begin with the premise that, in
making the calls, he intended to harass, intimidate, torment,
or embarrass Payne.

    Moreover, in determining whether section 9.61.230(1)(a)
reaches protected speech as applied here, we must follow the
Washington courts’ construction of that statute.4 R.A.V. v.
City of St. Paul, 505 U.S. 377, 381 (1992). In State v. Dyson,
872 P.2d 1115, 1120 n.5 (Wash. Ct. App. 1994), the
Washington Court of Appeals specifically rejected the
contention that the statute would prohibit calls to a public

    4
       Although Defendant was convicted of violating both subsection
9.61.230(1)(a) and (b), his First Amendment argument focuses on
subsection 9.61.230(1)(a). Here, the jury returned a general verdict, and
it is impossible to say whether the jury found Defendant guilty of
subsection 9.61.230(1)(a) or (b) or both.               Thus, if subsection
9.61.230(1)(a) is unconstitutional, the conviction cannot be upheld. See
Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam) (“A conviction
based on a general verdict is subject to challenge if the jury was instructed
on alternative theories of guilt and may have relied on an invalid one.”);
Stromberg v. California, 283 U.S. 359, 368 (1931) (holding that, when
there is a general verdict, “the necessary conclusion from the manner in
which the case was sent to the jury is that, if any of the clauses in question
is invalid under the Federal Constitution, the conviction cannot be
upheld”).
10                   UNITED STATES V. WAGGY

official “in which swear words are used in order to persuade
the recipient to do something.” The court noted that “RCW
9.61.230(1) regulates conduct implicating speech, not speech
itself. Although RCW 9.61.230(1) contains a speech
component, it is clearly directed against specific
conduct—making telephone calls with the intent to harass,
intimidate, or torment another while using” obscene or
threatening words. Id. at 1119 (citation omitted). The
“statute primarily regulates conduct with minimal impact on
speech.” Id. at 1120. Indeed, to violate the telephone
harassment statute, Washington state courts have held that the
defendant must “form the specific intent to harass at the time
the defendant initiates the call to the victim.” State v.
Lilyblad, 177 P.3d 686, 687 (Wash. 2008); see also State v.
Sloan, 205 P.3d 172, 177 (Wash. Ct. App. 2009) (reiterating
that telephone harassment requires the specific intent to
harass at the time the defendant initiates the call); State v.
Meneses, 205 P.3d 916, 919 (Wash. Ct. App. 2009) (same).
The fact that subsection (b) prohibits repeated calls or calls
made at an extremely inconvenient hour, even if not a single
word is spoken, underscores the legislature’s intention to
target conduct, not speech.

    United States v. Popa, 187 F.3d 672, 677 (D.C. Cir.
1999), is distinguishable. The court in Popa observed that,
according to the defendant’s testimony at trial, his
“complaints about the actions of a government official were
a significant component of his calls,” id., which is not the
situation here.5 Defendant’s citations to cases concerning
political speech are similarly distinguishable.


     5
      To the extent that Popa is not distinguishable, its analysis is against
the great weight of authority—including our own—as discussed in text
below.
                 UNITED STATES V. WAGGY                     11

     As applied here, the statute was properly cabined in
accordance with the Washington courts’ interpretation of it.
That conclusion is made even clearer by the fact that, as the
district court observed, Defendant “used the same language
during the first phone call as he did during the third phone
call” but was convicted only for the third call because the
government failed to prove that he “formed the specific intent
to harass Sandra Payne during that first phone call.” In other
words, the convictions are not for obscene speech, but rather
for placing calls with the specific intent to harass. That
Defendant included some criticism of the government does
not necessarily imbue his conduct with First Amendment
protection. Cf. United States v. O’Brien, 391 U.S. 367, 376
(1968) (“[The Court] cannot accept the view that an
apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea.”); Knox v. Brnovich, 907 F.3d
1167, 1180 (9th Cir. 2018) (“A message ‘delivered by
conduct that is intended to be communicative and that, in
context, would reasonably be understood by the viewer to be
communicative’ is symbolic speech protected by the First and
Fourteenth Amendments.” (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 294 (1984)).
Similarly, because of the jury’s finding that Defendant
intended to harass Payne, we reject Defendant’s argument
that he was merely criticizing a government official. See,
e.g., United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir.
2001) (holding that the First Amendment protects profane
criticism directed at police and, in light of the record there,
rejecting the government’s claim that the defendant’s speech
constituted “fighting words”). We hold therefore that, as
applied to Defendant, section 9.61.230(1)(a) regulates
nonexpressive conduct and does not implicate First
Amendment concerns. Accord Dyson, 872 P.2d at 1119
12              UNITED STATES V. WAGGY

(rejecting a constitutional challenge and holding that,
“[a]lthough [Washington Revised Code section] 9.61.230(1)
contains a speech component, it is clearly directed against
specific conduct—making telephone calls with the intent to
harass, intimidate, or torment another while using” obscene
or threatening words); see also State v. Alphonse, 197 P.3d
1211, 1217–18 (Wash. Ct. App. 2008) (reaffirming Dyson’s
holding that the statute regulates conduct implicating speech,
not speech itself); State v. Alexander, 888 P.2d 175, 179–80
(Wash. Ct. App. 1995) (noting that “the telephone harassment
statute primarily regulates conduct, with minimal impact on
speech,” and that “[t]he gravamen of the offense is the
thrusting of an offensive and unwanted communication upon
one who is unable to ignore it”).

    The result that we reach is consistent with our analogous
holding in United States v. Osinger, 753 F.3d 939 (9th Cir.
2014). In Osinger, the defendant was convicted of engaging
in a course of harassing and intimidating conduct in violation
of the federal cyberstalking statute. Id. 940–41. We rejected
the defendant’s First Amendment challenge because the
statute in question “proscribes harassing and intimidating
conduct” and not speech, even though speech (text messages
and emails) was involved in the defendant’s conduct. Id.
at 944. We emphasized that the statute requires malicious
intent, as well as harm to the victim. Id. Other circuits also
have upheld the constitutionality of the federal cyberstalking
statute because it “targets conduct performed with serious
criminal intent, not just speech.” United States v. Sayer, 748
F.3d 425, 435 (1st Cir. 2014); accord United States v.
Conlan, 786 F.3d 380, 386 (5th Cir. 2015); United States v.
Petrovic, 701 F.3d 849, 856 (8th Cir. 2012).
                   UNITED STATES V. WAGGY                            13

    The requirement of a specific intent to harass—the mens
rea element contained in the Washington statute—has led
other circuits to uphold telephone harassment statutes against
First Amendment challenges. See, e.g., Thorne v. Bailey,
846 F.2d 241, 244 (4th Cir. 1988) (upholding a conviction for
telephone harassment under West Virginia law, against an as-
applied First Amendment challenge, because of the intent
requirement); Gormley v. Dir., Conn. State Dep’t of Prob.,
632 F.2d 938, 941–42 (2d Cir. 1980) (holding that
Connecticut’s telephone harassment statute “regulates
conduct, not mere speech [because] [w]hat is proscribed is the
making of a telephone call, with the requisite intent and in the
specified manner”); United States v. Lampley, 573 F.2d 783,
787 (3d Cir. 1978) (upholding a conviction under the federal
telephone harassment statute, against a First Amendment
challenge, because of the intent requirement).6

    Similarly, many state courts have upheld, against First
Amendment challenges, telephone harassment statutes that
require a specific intent to harass. See, e.g., State v. Brown,
85 P.3d 109, 113 (Ariz. Ct. App. 2004) (holding that statutes
containing a specific intent requirement while prohibiting
certain types of communication do not implicate the First
Amendment because they prohibit harassment, not speech);
Gilbreath v. State, 650 So. 2d 10, 12 (Fla. 1995) (upholding
a telephone harassment statute because the provision is not
directed at the communication of an opinion or idea but,
instead, at the conduct of making a call with the intent to


    6
      See also United States v. Sandhu, 740 F. App’x 595 (9th Cir. 2018)
(unpublished decision) (upholding a conviction for harassing telephone
calls under 47 U.S.C. § 223(a)(1)(D) against a First Amendment
challenge, because the statute regulates conduct, not speech). Although
that decision is not binding on us, we find it persuasive.
14               UNITED STATES V. WAGGY

annoy, abuse, threaten, or harass the recipient); McKillop v.
State, 857 P.2d 358, 364 (Alaska Ct. App. 1993) (holding that
a statute prohibiting obscene telephone calls made with the
intent to harass another did not violate the First Amendment
so long as calls with a legitimate communicative purpose are
permitted); People v. Taravella, 350 N.W.2d 780, 785 (Mich.
Ct. App. 1984) (holding that Michigan’s statute punishing
misuse of communications services targets conduct even
though a speech component is involved); State v. Camp,
295 S.E.2d 766, 768 (N.C. Ct. App. 1982) (holding that a
statute prohibiting misuse of a telephone regulates conduct
rather than speech and, therefore, survives a constitutional
challenge); von Lusch v. State, 387 A.2d 306, 310 (Md. Ct.
Spec. App. 1978) (holding that the First Amendment does not
protect the use of a telephone with the specific intent to annoy
and harass the recipient of the call); People v. Smith,
392 N.Y.S.2d 968, 970–71 (N.Y. App. Term 1977)
(upholding a conviction for harassment against an as-applied
constitutional challenge because the defendant’s intent was to
harass, not to communicate).

   In sum, Washington Revised Code section 9.61.230(1)(a)
requires proof that the defendant specifically intended to
harm the victim when initiating the call. As applied here, that
requirement ensures that Defendant was convicted for his
conduct, not for speech protected by the First Amendment.

     AFFIRMED.
                UNITED STATES V. WAGGY                     15

TASHIMA, Circuit Judge, dissenting:

    The majority opinion holds that the telephone harassment
statute, Wash. Rev. Code § 9.61.230(1), does not implicate
the First Amendment because it criminalizes conduct rather
than speech—that is, making a telephone call to another
person. Respectfully, because I cannot agree with that
conclusion, I dissent. I am ultimately persuaded that this
telephone harassment statute is unconstitutional under the
First Amendment, as applied in this case, because it
criminalizes speech that is—despite its vulgarity and
harassing nature—public or political discourse protected by
the First Amendment.

    I am persuaded of this view by United States v. Popa,
187 F.3d 672 (D.C. Cir. 1999), which reversed a conviction
under a telephone harassment statute in strikingly similar
circumstances. There, Popa left repeated racist insults on the
answering machine of the United States Attorney for the
District of Columbia. Over the course of a month, Popa made
seven telephone calls, in two of which he referred to the U.S.
Attorney as “a criminal, a negro,” a “criminal with cold
blood,” and a “whore, born by a negro whore.” Id. at 673.
By any account, these would be considered harassing
messages. Popa also testified that he called the U.S.
Attorney’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.” Id. at 677. Popa
was charged with violating 47 U.S.C. § 223(a)(1)(C), which
makes it a crime to:

       make[ ] a telephone call or utilize[ ] a
       telecommunications device whether or not
       conversation or communication ensues, . . .
16               UNITED STATES V. WAGGY

        with intent to annoy, abuse, threaten, or harass
        any person at the called number or who
        receives the communications.

Id. at 674. Both the federal statute in Popa and the
Washington statute here have near-identical intent
requirements. The Washington statute provides:

        Every person who, with the intent to harass,
        intimidate, torment, or embarrass any other
        person, shall make a telephone call to such
        other person: (a) using any lewd, lascivious,
        profane, indecent, or obscene words or
        language, or suggesting the commission of
        any lewd or lascivious act; . . . is guilty of a
        gross misdemeanor[.]”).

Wash. Rev. Code § 9.61.230(1).

     The D.C. Circuit concluded that the federal statute, as
applied to Popa, did not survive even intermediate scrutiny
because the “incidental restriction” the statute placed on
speech was “greater than is essential to the furtherance of an
important government interest.” Popa, 187 F.3d at 676
(internal quotation marks omitted). The D.C Circuit noted
that “[t]he statute sweeps within its prohibitions telephone
calls to public officials where 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 unaddressed.” Id. at 676–77. The D.C. Circuit rejected
the government’s argument that the statute was already
narrowly drawn because it contained a “stringent specific
intent requirement.” Id. at 677. It held that the federal statute
                 UNITED STATES V. WAGGY                     17

encompassed “public or political discourse,” and the court
rejected the government’s position that Popa’s calls had no
political content, “because complaints about the actions of a
government official were a significant component of his
calls.” Id.

    So too in this case, complaints about the actions of a
government official were a significant component of
Waggy’s calls, which were all made to a government office
during business hours at the VA. The VA executive secretary
testified that on the Count 3 and Count 4 calls, Waggy told
her to “do [her] fucking job and to fucking listen,” and made
demands for “his property” or “his money.” Based on the
executive secretary’s own testimony, the calls for which
Waggy was convicted included complaints about the VA’s
actions towards him as well as his disputes with the VA over
his healthcare and reimbursement issues. Despite the
vulgarity and harassing nature of the calls, they, nonetheless,
were complaints about the actions and inactions of the
government.

    The majority attempts to distinguish Popa, but that
attempt falls far short. The majority notes that the jury made
a finding that Waggy had “the intent to harass, intimidate,
torment, or embarrass any other person.” The majority then
asserts that this finding “contradicts Defendant’s assertion
that he intended to persuade or complain to a public official,
as was the case in . . . Popa.” But in Popa, “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.’” Popa, 187 F.3d at 674. The juries in both cases
implicitly found that the intent element of the respective
statutes was met. Therefore, I do not believe that Popa can
18                 UNITED STATES V. WAGGY

be meaningfully distinguished from the circumstances of
Waggy’s case.

    Section 9.61.230(1)(a) could have been drawn more
narrowly, with little loss of utility to the state of Washington,
by excluding from its scope those who intend to engage in
public or political discourse. See id. at 677. Punishment of
those who use the telephone to communicate a political
message is not essential to the furtherance of the
government’s interest in protecting individuals from
noncommunicative uses of the telephone. See id. Hence, the
statute fails even intermediate scrutiny as applied to Waggy.1
Id.

    Because I find Popa’s reasoning to be persuasive, I would
hold that § 9.61.230(1), as applied to Waggy, is
unconstitutional and reverse his conviction. I respectfully
dissent.




     1
      The Washington statute differs from the federal statute at issue in
Popa in another respect. Section 9.61.230(1) is directly aimed at
speech—not conduct—in that it criminalizes “making a telephone call”
“using [harassing] words.” (Emphasis added.) This may explain why the
jury found Waggy not guilty of Count 5, which collectively charged
Waggy’s four phone calls which went unanswered. Since no one
answered, Waggy did not have the opportunity to use any words,
harassing or otherwise. Also, as amici ACLU of Washington, et al.,
observe, Waggy’s speech does not fall within any category proscribable
under the First Amendment. See ACLU Amici Br. at 9–13.
