William & Mary Bill of Rights Journal


Clay Calvert


The 1999federal appellate court decision of United States v. Popa suggests the startling emergence of a nascent First Amendment right to engage in anonymous and racist telephonic harassment of government officials. Professor Calvert suggests that this decision sadly reflects the state of political discourse in the United States today, namely a dialectical free-for-all directly contrary to the vision of philosopher-educator Alexander Meiklejohn, a vision advanced by the United States Supreme Court in New York Times Co. v. Sullivan but rejected by the shout-and- attack cultures of cable news channel political talk shows and call-in radio programs. The Popa decision also serves to jeopardize the constitutionality of a number of state laws substantially mirroring the federal anti-harassment statute it held unconstitutional as applied. Professor Calvert argues that the Popa decision's initial impression of being a victory for freedom of expression belies its real significance as a signal of a stunning defeat for, and the deterioration of, rational, deliberative discourse.