United States v. Robert Waggy, 936 F.3d 1014

Robert Waggy, a veteran barred from VA premises, repeatedly called the Mann-Grandstaff VA Medical Center demanding payment and threatening to seize property; calls were routed to staff who testified about threats and extensive profanity.
Waggy was charged under Washington Rev. Code § 9.61.230(1) (telephone harassment) on multiple counts alleging use of obscene/profane language, threats, and repeated calls; some counts were dismissed pre-trial or voluntarily.
A jury convicted Waggy of two counts (one count involving repeated obscene calls where he yelled obscenities and threats); one multi-call count where calls went unanswered resulted in acquittal.
Waggy challenged § 9.61.230(1)(a) on an as-applied First Amendment theory, arguing his calls were protected speech (complaints about government action).
The Ninth Circuit majority affirmed: it treated the statute as regulating conduct (placing calls with a specific intent to harass) rather than speech, relying on Washington court constructions and the statute’s specific-intent mens rea.
Judge Tashima dissented: he argued the statute, as applied, reached political/public complaints and therefore violated the First Amendment (following the D.C. Circuit’s Popa decision).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wash. Rev. Code § 9.61.230(1)(a) is unconstitutional as-applied under the First Amendment	Government: statute targets nonexpressive conduct (placing calls with specific intent to harass); valid restriction on conduct with incidental speech burden	Waggy: his calls were complaints about VA actions—protected speech; statute criminalizes obscene/profane political/public discourse	Held: statute constitutional as-applied. Court treats statute as regulating conduct (calls made with specific intent to harass), not protected speech; conviction affirmed.
Whether a general jury verdict dooms conviction if one statutory theory is potentially invalid	Government: Washington courts’ interpretation limits statute’s reach; the jury’s finding of specific intent supports conviction	Waggy: general verdict could rest on invalid subsection (a), requiring reversal	Held: Court acknowledges general verdict risk but upholds conviction because (a) is constitutional as-applied and the intent finding confines the statute to conduct.
Relevance of precedent finding similar statutes sweep political speech (Popa)	Government: Popa distinguishable; Waggy’s calls were primarily harassing, not political persuasion	Waggy (and dissent): Popa shows statute can criminalize public/political discourse and fail intermediate scrutiny	Held: Majority rejects Popa’s applicability; dissent would follow Popa and reverse.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (federal courts defer to state courts' statutory constructions when assessing constitutional challenges)
State v. Dyson, 872 P.2d 1115 (Wash. Ct. App. 1994) (construing § 9.61.230(1) as regulating conduct—telephone calls made with intent to harass—rather than pure speech)
United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999) (reversing harassment conviction where statute swept public/political complaints; held statute failed intermediate scrutiny as applied)
United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) (upholding cyberstalking statute as targeting harassing conduct, not protected speech)
United States v. O’Brien, 391 U.S. 367 (1968) (conduct-vs.-speech framework: not all expressive conduct is protected speech)
Virginia v. Hicks, 539 U.S. 113 (2003) (laws that target conduct with only incidental burdens on speech may be valid)
Hedgpeth v. Pulido, 555 U.S. 57 (2008) (general verdicts based on alternative theories may be invalid if one theory is unconstitutional)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (criminal penalties on protected speech are a severe restriction; some carve-outs exist)