187 F.3d 672 (D.C. Cir. 1999)
United States of America, Appelleev.Ion Cornel Popa, Appellant
No. 98-3017
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 30, 1999Decided September 17, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cr00306-01)
Evelina J. Norwinski, Assistant Federal Public Defender,  argued the cause for appellant.  With her on the briefs was  A. J. Kramer, Federal Public Defender.
Anthony S. Barkow, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.  Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.
Before:  Ginsburg, Sentelle, and Randolph, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Randolph.
Ginsburg, Circuit Judge:


1
A jury convicted Ion Cornel Popa  of making anonymous phone calls with the "intent to annoy,  abuse, threaten, or harass any person," in violation of 47  U.S.C. § 223(a)(1)(C).  Popa appeals, arguing that the statute  is unconstitutional both on its face and as applied to his  conduct, which involved calls to the office of the United States  Attorney.  Because we agree that the statute, as applied to  Popa's conduct, violates the First Amendment to the Constitution of the United States, we reverse his conviction on that  ground and therefore need not resolve his claim that the  statute is unconstitutionally over broad.

I. Background

2
Popa is a political refugee from Romania.  He has resided  in the United States since 1986.  Between April 10 and May  9, 1997 he made seven telephone calls from locations in  Virginia to the office of the U.S. Attorney for the District of  Columbia, Eric Holder.  In the two calls that were recorded  Popa refers to Mr. Holder as "a criminal, a negro," a "criminal with cold blood," and a "whore, born by a negro  whore,  [who] became chief prosecutor of Washington, D.C."  He also  claims that Holder "violated ... our rights."  In the most  nearly lucid passage on the tapes, Popa says:Eric Holder is a negro.  Is a negro.  Which is a criminal. He make a violent crime against me, violating the right sin court of the white people.  [Inaudible] negro.  He'snegro.  Eric Holder.  Criminal.


3
Popa was charged with violating 47 U.S.C. § 223(a)(1)(C),  which makes it a crime, punishable by a fine and up to two  years' imprisonment, to:


4
make[ ] a telephone call or utilize[ ] a telecommunications device, whether or not conversation or communication ensues, without disclosing [one's] identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications.


5
Popa moved to dismiss the indictment on the ground that  "this type of speech directed at a public official ... is entitled  to First Amendment protection."  He argued that his derogatory references to Holder are not punishable as "fighting  words," Chaplinsky v. New Hampshire, 315 U.S. 568, 572  (1942), and that the court should give § 223(a)(1)(C) strict  scrutiny in determining its constitutionality, see Cohen v.  California, 403 U.S. 15, 26, 91 (1971).


6
The district court denied Popa's motion.  Applying intermediate scrutiny, the court held that the statute is constitutional on its face because it "regulates potentially expressive  conduct to serve the compelling interest of protecting people  from often frightening and annoying telephone harassment"  and its "intent requirement ... renders it narrowly tailored  to serve this interest."  The court did not respond to Popa's  claim that the statute is unconstitutional as applied to his  conduct.


7
Popa, whom the court found competent to stand trial,  testified that he lacked the intent required to violate  § 223(a)(1)(C) because an acquaintance with whom he was  staying had plied him with liquor, made him read Ku Klux  Klan literature, and threatened to turn him out into the street  if he refused to make the calls.  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."  The  court defined those terms as follows:


8
To annoy means to irritate, to bother, to make someone angry by repeated action;  to abuse means to use insult-ing, coarse or bad language about or to someone;  tothreaten means to make an expression of one's intentionof hurting or punishing or destroying the other person;and, fourth, to harass means to trouble, to worry or torment.


9
After less than an hour of deliberation the jury found Popa  guilty.  The district court sentenced him to time served,  which was nearly nine months.

II. Analysis

10
On appeal Popa again argues that § 223(a)(1)(C) is unconstitutional both as applied and on its face.  Whether the  Government has infringed a defendant's rights under the  First Amendment is, of course, a question of law, which we  would normally review de novo.  See United States v. Doe,  968 F.2d 86, 88 (D.C. Cir. 1992).  The Government agrees  that we should entertain Popa's facial challenge de novo but  claims that, because he neither argued to the district court  nor testified at trial that his speech was political in nature, we  should not reach his as applied challenge, see Henderson v.  Lujan, 964 F.2d 1179, 1183 (D.C. Cir. 1992), or should review  it only for plain error, see United States v. Spriggs, 102 F.3d  1245, 1257 (D.C. Cir. 1997).  In this the Government errs with  regard to both the facts and the law.


11
Plaintiff's pretrial motion was adequate to preserve his as  applied challenge for appeal because, even if it did "not state  explicitly the grounds upon which [it was] made," it did  "contain facts and arguments that [made] clear the basis of  [his] objections."  United States v. Bailey, 675 F.2d 1292, 1294 (D.C. Cir. 1982);  accord United States v. Daniels, 770  F.2d 1111, 1114-15 (D.C. Cir. 1985) (Bailey standard not  demanding);  see also United States v. Mitchell, 951 F.2d  1291, 1297-98 (D.C. Cir. 1991).  Specifically, Popa's motion  presents the relevant facts, namely, that he made comments  critical of a public official;  and it sets out the legal arguments  at the base of his objection, namely, that his use of epithets  did not render his speech unprotected and that the district  court should apply strict scrutiny.


12
Although the district court did not address the as applied  challenge, it denied Popa's motion in no uncertain terms.Popa was therefore under no obligation to seek rehearing, to  raise the issue again at trial, or to request jury instructions  on the protection of political speech.  See United States v.  Madoch, 149 F.3d 596, 600 (7th Cir. 1998) ("Although [the  defendant] failed to renew an objection [based upon Miranda] ... at the time the government introduced [her  statements] at trial, the district court's clear ruling on [her] motion in limine  is sufficient to preserve the issue for  appeal");  United States v. Mejia-Alarcon, 995 F.2d 982, 986  (10th Cir. 1993).  In addition, Popa did testify in essence, if  not in terms, that his speech was political in nature.*  Accordingly, we review that claim de novo.

A. Level of Scrutiny

13
Popa contends his conviction was based upon "the expressive content of his speech," that is to say, that there "was no  conduct, separate from his communication, that would have  caused his conviction."  Therefore, he says, we should give  strict scrutiny to the law as applied.


14
The Government, on the other hand, contends that  § 223(a)(1)(C) is content neutral and therefore that we should  apply intermediate scrutiny.  First, because the prohibition  applies by its terms "whether or not conversation or communication ensues," the Government reasons that the statute  cannot be viewed as making punishment depend upon the  content of the defendant's speech.  Second, § 223(a)(1)(C)  focuses not upon how the speech affects the listener, which  would clearly turn upon the content of that speech, but rather  upon the intent of the speaker;  and the intent of the speaker,  the Government argues, is not the same as the content of his  speech even if the content may, as in this case, be evidence  from which a jury can infer the speaker's intent.  In support  of its argument, the Government cites a decision of the  Second Circuit holding that a similar Connecticut statute "[c]learly ... regulates conduct, not mere speech.  What is  proscribed is the making of a telephone call, with the requisite intent and in the specified manner."  Gormley v. Director, Conn. State Dep't of Probation, 632 F.2d 938, 941-42  (1980) (emphasis in original).


15
Even if, as the Government maintains, § 223(a)(1)(C) "is a  generally-applicable regulation directed at conduct," it does  not follow that the statute is content neutral.  As Popa notes,  § 223(a)(1)(C), unlike the Connecticut statute challenged in  the Second Circuit, applies only if the person makes the call  "without disclosing his identity."  This at least appears to  make the prohibition depend upon the content of the call. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 345  (1995) (requirement that literature designed to influence voters in election contain name and address of persons responsible for documents "is a direct regulation of the content of  speech");  cf. NAACP v. Alabama ex rel. Patterson, 357 U.S.  449, 462 (1958).


16
In the end, however, we need not decide whether  § 223(a)(1)(C) is content based.  For accepting the Government's argument that any incidental restriction § 223(a)(1)(C)  places upon speech in a particular case is content neutral, we  would--as the Government suggests--apply intermediate  scrutiny, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,  652 (1994), and the statute, as applied to Popa, does not  survive even that less searching inquiry.

B. Narrow Tailoring

17
In United States v. O'Brien, 391 U.S. 367 (1968), the Court  held that for cases in which " 'speech' and 'nonspeech' elements are combined in the same course of conduct," id. at  376, a government regulation passes intermediate scrutiny if:


18
[1] it is within the constitutional power of the Government;  [2] it furthers an important or substantial govern-mental interest;  [3] the governmental interest is unrelated to the suppression of free expression;  and [4] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377.  Popa claims only that § 223(a)(1)(C) fails the  fourth part of the O'Brien test.


19
The Supreme Court has explained that the fourth part is  satisfied so long as the substantial government interest promoted by the regulation "would be achieved less effectively  absent the regulation."  Turner Broad. Sys., 512 U.S. at 662.In O'Brien, the Court upheld a statute that prohibited the  burning of draft cards because it "perceive[d] no alternative  means that would more precisely and narrowly assure the  continuing availability of issued Selective Service certificates  than a law which prohibits their wilful mutilation or destruction."  391 U.S. at 381.  In Turner Broadcasting, the Court  upheld the "must-carry" law, which required cable television  systems to carry local broadcast stations on some of their  channels in order to preserve the economic viability of broadcast stations for the 40 percent of American households  without cable.  See Turner Broad. Sys., Inc. v. FCC, 520 U.S.  180, 215-16 (1997).  The cable systems argued that the law  was too broadly drawn because it permitted a few hundred  network affiliates to opt for "must-carry" treatment even  though their economic viability was not threatened.  Nonetheless, the Court held that number "insufficient to render  must-carry 'substantially broader than necessary to achieve  the government's interest.' "  Id. at 217.


20
In determining whether the incidental restriction  § 223(a)(1)(C) places upon speech "is no greater than is  essential to the furtherance of [an important governmental]  interest," we need consider only the "annoy, abuse, ... or  harass" forms of the intent element.**  Popa argues that the  Government's interest in protecting individuals from annoying, abusive, and harassing phone calls would be equally well  served if the statute did not encompass "public or political discourse [intended to] 'irritate,' 'bother,' 'insult,' etc."  As  Popa correctly points out:


21
The statute sweeps within its prohibitions telephone calls to public officials where the caller may not want to identify [him] self other than as a constituent and 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.


22
Recall that Popa testified he called Holder'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.


23
The Government responds that § 223(a)(1)(C) is already  narrowly drawn because it contains a "stringent specific  intent requirement."  Certainly the statute would be broader  still if it required only a general intent--if, for example, it  penalized making an anonymous phone call that had the effect  of annoying, abusing, or harassing the recipient of the call. That § 223(a)(1)(C) is not as broad as it could be, however,  does not suggest that it is as narrow as it must be to pass  intermediate scrutiny.


24
The Government also argues that calls such as Popa's can  impede its undoubted interest in "operational efficiency."United States v. National Treasury Employees Union, 513  U.S. 454, 473 (1995).  There is, however, no evidence that  Popa's seven phone calls over the course of a month in any  discernable way impeded the efficiency of the U.S. Attorney's  office.  Indeed, we can safely say the Government's interest  in efficiency "is simply not implicated on the facts before us,"  which entail the brief distraction of the clerical staff who  answered Popa's calls.  Texas v. Johnson, 491 U.S. 397, 407  (1989) (if "interest asserted by the State is ... not implicated  ... we need not ask whether O'Brien's test applies").


25
Moreover, the Government never even suggests that its  interest would be less effectively furthered by a statute  applicable only to callers who did not intend to engage in public or political discourse.  Instead, it argues that Popa's  calls had no political content;  we reject that position because  complaints about the actions of a government official were a  significant component of his calls.  In the alternative, the  Government notes that "[p]olitical motivations simply do not  insulate someone from criminal liability for violating content neutral, generally-applicable, conduct-regulating statutes."True enough, but such statutes are still subject to intermediate scrutiny.  And unlike the interests implicit in the Government's hypotheticals--which involve killing an abortionist and  giving false testimony at a criminal trial, in each case to  advance a political cause--the governmental interest at stake  here is no less effectively furthered by a statute that gives a  pass to those who intend in part to communicate a political  message.


26
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.  Indeed, the Government itself, quoting United States v. Lampley, 573 F.2d 783  (3d Cir. 1978), describes the interest furthered by  § 223(a)(1)(C) as the "important 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.' "  Id. at 787.  In  other words, as Popa notes, the Government's "asserted  interest is limited to protecting individuals from noncommunicative uses of the telephone," such as tying up  someone's line with a flood of calls, each of which is terminated by the caller as soon as it is answered.  Punishment of  those who use the telephone to communicate a political message is obviously not "essential to the furtherance of that  interest."  Hence the statute fails the fourth part of the  O'Brien test.  391 U.S. at 377.


27
Finally, unlike the proffered alternatives to the must-carry  law in Turner Broadcasting, the alternative to § 223(a)(1)(C) that Popa suggests is substantially "less intrusive on a speaker's First Amendment interests."  520 U.S. at 217-18.  Under the statute as written, and as the jury in this case was  instructed, no protection whatsoever is given to the political  speech of one who intends both to communicate his political message and to annoy his auditor--an auditor who might be  his elected representative or, as here, an Officer of the United  States appointed by the President with the advice and consent of the Senate--from whom the speaker seeks redress.


28
* * *


29
The jury was instructed that it could convict Popa if it  found beyond a reasonable doubt that he had the "intent to  annoy, abuse, threaten or harass any person at the number  called."  Because the jury delivered a general verdict, we  cannot know which intent the jury concluded Popa had when  he made the phone calls.  Insofar as the intents to annoy, to  abuse, or to harass were implicated, the statute fails intermediate scrutiny as applied to Popa's conduct;  insofar as the  jury may have found an intent to threaten, there is no  evidence to support the finding.  We therefore vacate Popa's  conviction.

C. Over breadth Challenge

30
Popa also challenges the constitutionality of § 223(a)(1)(C)  on the ground that the statute is over broad on its face.  This  he has standing to do.  See Massachusetts v. Oakes, 491 U.S.  576, 581 (1989) ("The First Amendment doctrine of substantial over breadth is an exception to the general rule that a  person to whom a statute may be constitutionally applied  cannot challenge the statute on the ground that it may be  unconstitutionally applied to others").  To prevail upon such a  challenge, however, especially in a case involving conduct as  well as speech, the over breadth of the statute "must not only  be real, but substantial," in relation to the legitimate coverage  of the statute.  Broadrick v. Oklahoma, 413 U.S. 601, 615  (1973).  For the over breadth doctrine is "strong medicine" to  be applied "sparingly and only as a last resort."  Id. at 613.


31
Nonetheless, the Supreme Court has not always followed  the "rule that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case  before it."  Brockett v. Spokane Arcades, Inc., 472 U.S. 491,  502 (1985);  see, e.g., Board of Trustees v. Fox, 492 U.S. 469,  487 n.2 (1989) (Blackmun, J., dissenting) (citing cases in which the Court resolved the overbreadth challenge instead of the  as applied challenge).  In Brockett the Court distinguished  between a case in which "an individual whose own speech ...  may validly be prohibited ... challenge[s] a statute on its  face" and one in which "the part[y] challenging the statute  ... engage[s] in protected speech that the overbroad statute  purports to punish."  472 U.S. at 503-04.  In the latter case  the Court concluded that, because there is "no want of a  proper party to challenge the statute, [and] no concern that  an attack on the statute will be unduly delayed or protected  speech discouraged," the reviewing court should declare the  statute "invalid to the extent that it reaches too far, but  otherwise [leave it] intact."  Id. at 504.


32
In this case, as we have seen, Popa engaged in protected  speech that § 223(a)(1)(C) purports to punish.  Therefore,  pursuant to Brockett, having vacated Popa's conviction because the statute is unconstitutional as applied to his conduct,  we shall not go on to inquire whether the statute is overbroad  and, if so, whether it is susceptible to a limiting construction. See New York v. Ferber, 458 U.S. 747, 769 n.24 (1982).

III. Conclusion

33
As applied to the conduct at issue in this case, 47 U.S.C.  § 223(a)(1)(C) violates the First Amendment.  The judgment  of the district court is therefore


34
Reversed.



Notes:


*
 Popa said he called Holder to complain about an event in 1992  during which "two Afro-American police officers [were] dispatched"  in response to his call complaining that he had been "threatened by  an Afro-American."  Popa said that the officers "came after me and  beat me up."  (The Government itself introduced in evidence a  letter that Popa wrote to Holder while awaiting trial in which he  referred to this event and stated that whites beaten by blacks "do  not get any justice.")  Popa also testified that he called Holder to  complain about the Government's actions in a pending case against  him for making threats to an employee of a bank;  he claimed the  Government had "fail[ed] to give me in advance what government  witnesses are against me."


**
 There is no evidence in the record to support a claim that Popa  made the phone calls with the intent to threaten and Popa does not  argue that the intent to threaten component needs to be drawn  more narrowly.


Randolph, Circuit Judge, concurring:

35
I do not agree with  the government that § 223(a)(1)(c) "is a generally-applicable  regulation directed at conduct."  Brief for Appellee at 18.  A  hang-up call could, I suppose, be characterized as conduct  only.  So too perhaps calls consisting only of a grunt or a  moan.  Nonetheless, in general, telephones are devices for  communicating and this statute regulates how telephones may  be used for that purpose.  The acts of picking up the phone  and dialing are conduct.  The act of speaking on the phone is  also a form of conduct but it still is "speech."  Whether the  caller is exercising his "freedom of speech" depends on what  he says and why.  A blackmail attempt, a bomb threat, a  fraudulent promise, a kidnapper's demands--all are communications, but none are protected by the First Amendment. Partly this is because of history;  partly it is because of the  consequences of such communications.  To characterize anonymous telephone calls intended to annoy or harass as "conduct" rather than speech is to confuse the analysis.

