Tuesday, January 10, 2006

Out of Article 88 Pan and Into the Section 223 Fire

As I was venting my spleen last week, I thought how glad I was that I was no longer under the military's jurisdiction, particularly with regard to Article 88 of the Uniform Code of Military Justice, which states:
“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”
Until I read this:
"Whoever... makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both." [47 USC 223 (a)(1)(C)]
"The use of the term “telecommunications device” in [section (a)(1)(C)], includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet." [47 USC 223 (h)(1)(C), (at section 113) signed into law on January 5]
So: anonymous, annoying, internet (or telephone) communications are illegal. However, even Clarence Thomas understands that there just might be a First Amendment issue in there somewhere...
Now, in addition to declaring that he will not obey the law, Bush has decreed that we must obey a law that is clearly unconstitutional. Great.
Even more troublesome, remember those prank phone calls we all made when we were kids? They're violations of Federal law.

(and I know, section 223 is ostensibly directed toward domestic violence/stalking by phone - so why not go with the earlier version that required 'substantial emotional harm' (House version, section 509)

Jack

2 Comments:

Anonymous Gary Slinger said...

Those prank calls were already violations. Anyways, read this, and see what you think:

http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136873535

1/11/2006 8:27 PM  
Blogger Gideon's Guardians said...

I agree the prank calls were already violations at least as far back as the 1970's, which would have covered my youthful indiscretions. I'm too lazy to pull the statute, but I'll bet that provision goes back to the original 1934 enactment.

I also agree with Volokh's assessment that it's a no-brainer that the first amendemnt will trump the statute. (see again Thomas' concurrence in McIntyre). But if it's a no-brainer, why pass another unconstitutional law?

1/12/2006 4:34 PM  

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