good morning your honor smack campbell from the federal defenders of eastern washington idaho about robert marc waggy going to attempt to reserve five minutes for rebuttal one man's civil garrity is it out there's a lyric those words were true when justice harlan spoke them and wrote them forty eight years ago and they are equally true today he spoke them in the cohen b california case and in that case one man's well garrity was quote fuck the draft in this case one man's vulgarity is similar that being mr wagner but even forty eight years ago the supreme court recognized that words that some may find offensive taboo words as they referred to in one of the are nevertheless protected by the st amendment and here the real question here is whether what the statute criminalize is his conduct that happens to use words to achieve it or whether it's expressive and that to me is the crux of the problem because certainly you know your money or your life is the use of words but it's not protected to express conduct so looking at the washington statute as a whole the telephone harassment statute almost all of it has to do with things that are either not about the expressions  themselves for example you can if you're repeatedly calling in the middle of the night it doesn't matter whether you even say anything so why isn't this statute named like the statute in the us in your conduct that happens to use words i understand you're the statute itself if we look at it it's broken up into three sort of sub parts right and i would agree that it's a part b which talks about repeatedly calling whether or not a call comes in that's content neutral we can agree on that i would also agree that part c which talks about threats provided they're true threats again it's outside the analysis but if we look at paragraph one which refers to using any lewd lascivious profane indecent or obscene words or language but that doesn't stand alone it's coupled with the beginning of the statute which requires the intent to harass intimidate or manned at septra which is the the point of the statute doesn't just broadly say well if you walk around using addressed this issue and it did so in the context of actually looking at the word profane but nevertheless it analyzed this statute and if this was purely a conduct driven statute belleview be ranked would have come out the other way st are you mounting a facial challenge or and has applied challenge or both you know i don't think we need to reach a facial challenge in this case i think we can handle it b look to the using any lewd lascivious profane etc language identified profane as the issue in that case and then proceeded to look at whether profane language is constitutionally protected and the court easily found that it was found the statute was overbroad and overturned the conviction on that ground in essence what happened here in this case was that admittedly they removed the word profane from that your instructions but they left in the other words blue the fifty s indecent all of which are constitutionally protected and we see that in the stable communications case in which the supreme court ultimately found indecent speech that didn't meet the definition of obscene speech as defined in miller is protected speech how do you distinguish the analysis that we should apply here from crossing you i think that the issue i think we have several issues regarding conduct or the allegations of conduct here and i think that the problem with the conduct analysis the district court implied that the government urged upon it in this case was that it looked to only what i would call subgraph one and it said that to deal with every person who with intent to harass etc makes a telephone call and it said that's conduct the crime is committed once a person makes a telephone call that might be correct if we were analyzing a one b case because in a one b case the call never need in a sense be completed nobody ever needs to speak the problem that we have here is that we have actress race language in sub paragraph namely that you have to use particular types of language so if a person for example were to make a but was on the panel and it seems to me a tough case for you to overcome and you've got to distinguish it to how would you distinguish that case now it wasn't cited in the way the briefs of either the parties here but one of the amicus did cite the case and fourteen decision that concerns the federal stalking statute which which is different in some ways but there there where as both an over breath expressive conduct offer it one way or another so the i think that the critical issue that the court has raised which we agree with is  problem of defining the speech and expressive speech as conduct and that is just continuously been rejected by the supreme court over and over again i would like to turn briefly to the jury instruction issues before i run out of time again there were two essential jury instruction problems one of which i think picked up on and exacerbated the issue of regarding indecent speech namely the definition of indecent speech that was given here that in essence allowed speech to be determined to be indecent if it was quote not decent board and inappropriate the problem with that is again that goes far beyond st amendment law it also creates vagueness problems because what one jury might find inappropriate or not decent another juror would clearly have to feel differently the nd issue which we touched on was the issue that arose regarding the specific intent that was needed to commit this crime the space it was determined under the lily bad case that the specific intent needed was needed to be formed at the time the call was made and it had to be specific to a particular person and the jury instructions which were submitted were not jury instructions agreed to by the defense they referred to another person and that other person the jury had significant confusion on that issue and specifically issued a question  which addressed those instructions stating that who was that other person who was the another person there was some discussion on the record about that and the court ultimately simply responded please read her instructions a host of cases saying that when a juror jury has legitimate confusion over an issue which this jury clearly did simply telling the jury to read your instructions was not sufficient there was an easy fix they simply had to be told that the individual victim in this case and her pain was the person referred to in all of those references so we do believe that even if this case the statute could be found as applied to have st amendment to comply with st that precedent the jury instructions alone would require a new trial at this point i think i'll reserve unless there's for further question may please the court my name is tim omes i mean assistant u s attorney from spokane here on behalf of the government so as is i reviewed the the defense briefs and arguments and they launch into this st amendment jurisprudence on on on on speech on the content of speech make a factual assertion and thereby their argument is really based upon the factual assertion that this case was about a private citizen trying to petition a government agency and that was what the trial was about oh that issue was fully vetted at trial the defendant testified the defense argued that the government presented countering evidence an argument that this was really about it an individual who  and the jury agreed with that so i think the starting point has to be that this defendant intended to harass or harm through harassment  was the specific individual that was targeted on on april th two thousand and sixteen and the defense an amicus brief does the same thing on page for that brief it starts out with a factual assertion that the facts of this case  a private citizen trying to petition the government so i think that that the legal argument that follows both the defense brief and the reason why there's so much emphasis on speech and so little discussion about the actual so based on that i think that the there is this body of case law out there that that it's it's fairly clear at this point in time because these statutes are not uncommon and they do differ from jurisdiction to jurisdiction there's a federal statute that's quite a bit i believe broader than the state statute that was applied in this case but but that body of case law says that the intent element brings this speech it's not those words are not being used to convey an idea what can i mean you're saying the in person state of mind turns words into conduct that's just what you said in the different words why is it different in terms of whether i'm you know whether it's speech or not what my state of mind is my thinking can turn a word into an act is that what you're saying well i think the supreme court  referred to it in one of the cases as words can be essentially like a clanging garbage truck that they're not intended to convey communication so in that instance  they're they're not protected speech because they're there they're conduct they're essentially a kind of verbal slap verbal assault and i think that's what the statutes are intended to get at and that's the distinction that other courts have made in looking at this and saying that this is a conduct based statute and yes it is triggered by use of language but that use of language is not protected because it doesn't convey doesn't it's not intended to communicate anything it's only intended to injure the person who's the recipient of it and this is specific to telephone harassment s and that's a kind of ripple repeated refrain that comes up over and over and over again in the cases in terms of how courts have looked at it and i don't have the supreme court case on in mind but i know it's cited in my brief and i think i have the actual quote from and it talks about the cleaning garbage truck and so there is there there is this and has been this sense that language is used for more than just to convey ideas and sometimes it's used you know in a way that it's not protected and can be criminal because it's intended to cause the specific harm of course that you know no one would contend that a clanking garbed struck his speech right to start with regardless of the inte no i understand that but but spring court was using the garbage truck as an analogy to some types of speech so in any event i think that's the that's the approach that some courts have  taken that's the approach i believe that the watching courts have taken that approach was persuasive to the magistrate judge in this case and ultimately also persuasive to the district court judge because there's a body of law that supports it it's like there's a fork in the road at a certain point and if you have a case in which there is no intent to harass you go and and it's a case where somebody is trying to petition the government you go down the expression fork in that road if you have a case where there's an intent to harass it forks in a different direction and you look at the speech in a different way you evaluate it differently so i think that the the briefs pretty fully address the body of law that talks about telephone harassment cases i would like to to get to the jury instruction issues just briefly so on the question of how the court how the court chose to define lewd lascivious indecent the government proposed in an instruction that contained a definition drawn centrally from dictionary the defense proposed no instruction they just objected to even the statutory words been included in the jury instruction and the court looked to some state law and through its definition from the state law but i think that the thing here that's most important is that however it was defined in my brief i think goes through the defense argument in some detail that point this out but the defense describes the defendant's own statements as offensive as inexcusable as inappropriate and there's there is never any defense mounted by the defense mounted by the defendant suggesting that the language used in this case didn't fit within the statutory categories and i would argue that essentially that that point was conceded by the defense throughout their argument and again i i think it's referenced in some detail in my brief with regard to the statutory terms and their inclusion in the instruction essentially followed the what washington pattern instruction with the exception that it included the victim's name in the st with regard to the  element so the defense didn't object to that they did propose an instruction that had the defendant's name in repeated and in fact when they argued to the to the jury that's how they argue they included the victim's name throughout their their recitation of the elements the jury did pose this question about whether or not the intent had to be specific to the victim that was identified and the court carefully considered how to respond and i think one of the problems one of the conundrums generally in assessing how to respond in a situation like that is you know when you when you begin to explain one point it can overemphasize that point and against lead the jury into error because this is a case in which the defendant had never met face to face this victim or any other person who testified on behalf of the v a other than  the inspector general special agent who testified he hadn't met them he didn't know what they looked like which was which was an issue for the victim coming to court and finally facing the defendant and having her face shown to him  and the defendant would not necessarily know that her voice goes with that name now the government had to prove that that the defendant intended to harass her the government presented evidence government argued but the government didn't have to prove that it knew her knew her name or anything of that nature it's not part of the statute it wasn't part of the elements so i think that the court was concerned a little bit about well if i say if once you start getting into addressing some questions how much further then do i need to go to also explain that it's not required th instruction she was the only person the defendant talked to that day both the government and the defense argued consistent with the precedent from the black that the defendant had to have specific intent to harass that victim and i think that also the fact that the jury also went out of the liberated the rest of that day into the following day and returned a verdict after lunch shows that they they accepted the court's answer let me ask you to you've got about a minute left at about a minute to address the i think there's an objection an appeal at least instruction eleven right you know to including in the definition of indecent something is indeed decent if that unseemly or inappropriate i soon the objection is on they did this or something like that what your response to that my response is again that the magistrate drew that language from washington state courts and how they had defined it they did not the court did not accept the government's instruction which is true of some some further definition and it's not part of the pattern instruction now it was drawn from case law and those cases are cited in the government's brief that the that the court was looking at but i think that  know the jury does have to sometimes go back and struggle with with terms and apply their collective common sense that's part of that process here most fundamentally is the problem that the defense essentially conceded that it the definition of the cyberstalking statute that was an issue in that case and specifically if we look at that statute and it seems to be a paragraph or two which is the most relevant if you're talking about  you're yes ok go that there what we see is a content neutral statute we see a statute that establishes  that it talks about a course of conduct not a course of speech or course of conduct and we see amends rather with the intent to kill injure harass or intimidate so arguably what we really have here is a statute that criminalizes  what might otherwise be considered some sort of common law assault for lack of a better term but doing it via the internet cell phone etc but we have a content neutral statute this statute i believe would be re entirely differently if it established the intent element and then the actus reus said and then proceeded to speak thirty words because then we're delving into a content specific statute that then has certain st amendment protections because someone evaluating that statute has to look at the content evaluate the words and decide whether those words are somehow prohibited and that's the entire  you call somebody and of statute so it wouldn't matter i mean it isn't that really you're it seems to me that that's what the legislature is trying to do here except they're trying to divide it up into  and so what would that be ok to just say you can't call people with the intent to harass you're i think the problem perhaps the problem with dan would be is there a reasonable definition of the word harass well because that's that's not ok but it wouldn't be because they would use words whether they're obscene or not obscene or what are well i do think in this case the primary problem with the statute is drafted is its inclusion of the laundry list of terms  if you say it here teasingly to your law partner it's clearly not a threat and it's protected conduct so protected speech so why doesn't the intent many years ago and it seems that that makes a certain amount of sense if in the example of a bank robbery where what is criminalized is the use of force to seize property from that unlike the bank robbery example that your honor uses where the words are sort of an incidental part the words are the crime here and one of the amica spoke about this more eloquently than i and said essentially one could criticize at that point one could criminal criticizing a president and then say well yes generally speaking criticize criticizing a president is protected speech but it's part and parcel of a crime so therefore it's ok and that's sort of what we're saying here which is if you call somebody and use taboo words that's part and parcel of the crime so therefore it's not protected and that can't at that point the give only exception would swallow the rule any time a statute simply  sought to criminalize words to get to the assault example assault requires either the intent or the apparent intent to use some sort of force or cause some sort of harm somebody by saying dirty words it seems to me that that's a far cry from pointing a gun at someone and causing them emotional psychic fear because of the fear of imminent harm seem to be two completely different things where somebody might be embarrassed by dirty words but if that were enough then coing be california should have come out differently or texas v johnson should have come out differently because flag burning clearly would offend some people or cause them some psychic distress or harm but under  hustler magazine versus falwell the supreme court has made clear that simply suffering emotional harm can't be enough if it were all of these cases where it turned out the other way i see him well over time thank you very much thank you have the case just argued is submitted and once again we're appreciative of helpful arguments from both counsel will take about a ten minute recess and can see if you don't mind coming back for one second to conference