The US Court of Appeals for the First Circuit has reversed the conviction of James Tobin, the Republican operative who was sentenced to 10 months in prison for his role in the New Hampshire phone-jamming scandal. Basically, the Court concluded that the jury instructions, which laid out the type of conduct that could constitute “harassment” within the meaning of the relevant statute (47 USC 223(a)(1)(D)), impermissibly broadened the range of conduct that Congress had intended.
You can read the opinion here. The Court did not mandate that Tobin be acquitted; rather, it held that certain legal issues regarding the scope of the statute had to be resolved by the lower courts, after which a retrial might be needed. However, the Court made quite clear its sense that the statute was not a good fit for what happened in this case.
In sum, we think a jury could convict Tobin under subsection (D) on the evidence presented at the trial unless a purpose to harass is required; the purpose issue, not developed by either side on appeal, is left for remand. We think it fair to add that despite the unattractive conduct, this statute is not a close fit for what Tobin did. If the government thinks this a recurring problem, it better seek an amendment.
My guess: Tobin walks. We’ll see.
