United States v. Darsey, Crim. No. 72-133.
| Citation | 342 F. Supp. 311 |
| Decision Date | 08 May 1972 |
| Docket Number | Crim. No. 72-133. |
| Parties | UNITED STATES of America v. Frederick Freeman DARSEY. |
| Court | United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania) |
Louis C. Bechtle, U. S. Atty., Barton A. Hertzbach, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
David Rudovsky, Philadelphia, Pa., for defendant.
The defendant in this case was originally charged in a fourteen count information charging eight violations of 47 U.S.C. § 223(1) (A), which provides that:
"Whoever—in the District of Columbia or in interstate or foreign communication by means of telephone, makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent, shall be fined not more than $500 or imprisoned not more than six months, or both."
and further charging six violations of 47 U.S.C. § 223(1) (D) provides that:
"Whoever—in the District of Columbia or in interstate or foreign communication by means of telephone, makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number, shall be fined not more than $500 or imprisoned not more than six months, or both."
Subsequent to the bringing of this information, a further information was filed, charging one count of violation of 47 U.S.C. § 223(1) (D). Jury trial was waived and trial was held on March 16, 1972, at which time the two informations were consolidated, and the United States moved to dismiss the seven counts relating to § 223(1) (A) and Count 14, relating to § 223(1) (D). That motion was granted and trial was held on the remaining six counts, all charging violations of § 223(1) (D). The defendant was found not guilty on all counts. This memorandum is written to set forth the rationale of that decision.
Section 223 of Title 47 was passed in 1968. It was drawn up as a single legislative proposal, and directed toward a fairly narrow though serious constellation of problem behavior. The meaning of any one part of § 223 can only be properly understood in the content of the whole of § 223, which reads as follows:
The legislative history of this section makes it clear that § 223(1) (A) was pointed at the problem of what is generally and colloquially understood to be an "obscene telephone call", that is, a verbal sexual or sado-sexual assault made over the telephone for the perverted pleasure derived from it.1 The language of § 223(1) (A) was drawn broadly to prevent technical escape by the guilty. Nowhere in the legislative history is there the slightest intimation that this section was intended or should ever be interpreted to make criminal the use of ungenteel or vulgar language sometimes called "obscene" in the course of an interstate telephone conversation, either from habit, anger, or slanderous intent.2
§ 223(1) (B) was directed at a somewhat different problem, the problem of anonymous phone calls. Most obscene phone calls are anonymous, but not all anonymous phone calls are obscene. The anonymity of the caller is in itself a circumstance raising discomfort and fear in the receiver of the call, and Congress decided that virtually any wilfully bad motive in making an anonymous phone call should be punishable.
§ 223(1) (C) was directed at still another problem, the problem of those who ring another's telephone to harass them with the ringing. It appears that the simple intent standard of "intent to harass" was used in § 223(1) (C) rather than the broader standard used in § 223(1) (B) or the narrower standard used in § 223(1) (D) because nothing broader or narrower was called for in light of the behavior prohibited by § 223(1) (C). Repeated ringing can have only two intents—benign, attempting to get in touch in good faith, and harassing. Therefore, since repeated ringing is so nearly content free, it presents few problems in defining standards by which to judge the intent with which it is done.
§ 223(1) (D) with which we are chiefly concerned here, addresses itself to yet another problem, the problem which arises when repeated phone calls are made with the sole intent of harassment, even though conversation ensues which is not a sexual assault, and even though the phone call is not anonymous. The effect of this section is two-fold. It prevents ingenious persons from escaping the effect of the other sections by the structuring of their harassment, and it outlaws clear harassment under certain conditions by a person who is known or makes himself known to the party called. Yet, Congress was apparently very aware of the potential abuses of such a section when applied to the ordinary and not always amicable dealings of persons with one another which might happen to be over the telephone. To prevent the flooding of the Federal courts with complaints from persons who feel annoyed by some dealing they have had with another which happened to be by way of an interstate telephone call, Congress wisely imposed two very important and very strict conditions which must be proved before an offense under this section is established regarding conversations between people known to each other. First, the phone calls must be "repeated". The court takes this to mean repeated in close enough proximity to one another to rightly be called a single episode, and not separated by periods of months or years. This condition both requires the repeatedness as an element of the legally cognizable charge, and at the same time insures that the courts will not be flooded with complaints growing out of a single unpleasant call with some acquaintance. Second, the repeated calls...
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State v. Thorne
...by them, that alone is insufficient evidence to show the defendant intended that effect when he called. Finally, in United States v. Darsey, 342 F.Supp. 311 (E.D.Pa.1972), the defendant who was divorced called his mother-in-law on a number of occasions to inquire about the whereabouts of hi......
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State v. Elder
...the call without disclosing his identity. We wholly agree with the analysis of the United States District Court in United States v. Dorsey, 342 F.Supp. 311 (E.D.Pa.1972), that the "anonymity of the caller is in itself a circumstance raising discomfort and fear in the receiver of the call." ......
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Gov't of the Virgin Islands v. Vanterpool
...lead to unsatisfactory, unpleasant discourse that still falls under the protection of the First Amendment. See United States v. Darsey, 342 F.Supp. 311, 314 (E.D.Pa.1972) (“Up to a point these are the normal risks of human intercourse, and are and should be below the cognizance of the law.”......
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Gov't of the Virgin Islands v. Vanterpool
...lead to unsatisfactory, unpleasant discourse that still falls under the protection of the First Amendment. See United States v. Darsey, 342 F.Supp. 311, 314 (E.D.Pa.1972) (“Up to a point these are the normal risks of human intercourse, and are and should be below the cognizance of the law.”......
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Ask not for whom the bell tolls - ask why a look at the harassing telephone call statutes.
...part of the statute requires the making of only one call. The legislative intent behind this subsection is discussed in US. v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972), a case dealing with the identical wording of the federal statute. In discussing the degree of intent required to obtain a ......