In United States v. Waggy, --- F.3d ---, No. 18-30171 (9th Cir. 2019), a divided panel affirmed the defendant's convictions 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 raised a First Amendment challenge to the statute, as applied to his calls. The majority concluded that the Washington statute was constitutional as applied because it required proof that the defendant specifically intended to harm the
victim when initiating the call. It held, "as
applied to Defendant, section 9.61.230(1)(a) regulates
nonexpressive conduct and does not implicate First
Amendment concerns."
Judge Tashima dissented, explaining: "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."
