15 June 2005

It's All Speech in the End?

A wants to defraud B. Two federal statutes might apply to this conduct: 18 U.S.C. §§ 1341 (mail fraud) and 1343 (wire fraud).1 Section 1341 coveres the con artist who

places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing

while § 1343 covers the con artist who

transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice

Which of the following does not support federal jurisdiction over A's scheme?

  • A postcard dropped in the mail
  • A telephone call from another state
  • A letter FedExed from Bermuda
  • An e-mail from a "bank" in Panama
  • A Western Union telegram, although both A and B live in the same state
  • A package delivered by UPS within the same state that never leaves the state
  • A letter delivered by a local-only courier service
  • A package dropped on the doorstep by an unknowing assistant

The first four are easy—they're all within federal jurisdiction, as they use either the US postal service or cross a state boundary. The fifth one is a little bit harder, but it is not a "matter or thing" so it must fall within § 1343—and it didn't cross state lines, so it shouldn't support federal jurisdiction. The sixth one is also a bit harder, but UPS is a "private or commercial interstate carrier," so the fact that this particular package didn't cross state lines still implicates the Commerce Clause enough to support federal jurisdiction under Heart of Atlanta Motel.

The fun is in the last two items. Neither of these supports federal jurisdiction, unless something in the particular communications invites the use of the mails or interstate wire transmission as part of the scheme (such as including a postal-reply card). There's a limit on federal authority here—the statute just doesn't give that permission.

So why, then, does the FCC get to exceed its mandate? Professor Crawford's well-taken confusion at the basis for the FCC's apparent power grab—an excellent example of an agency captured by those it purportedly regulates2—looks even more interesting. One can argue that the communications in the last two items are "just speech," and therefore should fall within one or the other of the statutes. They don't, though; and, therefore, the federal government doesn't regulate it. I suppose that one could argue that, unless one lives in Washington, Idaho, or Oregon, the paper certainly came from another state; that argument didn't help much with guns in school zones, though, so I don't think it's going to help with something related to speech.

The real problem here is that the FCC wants to regulate something that might overlap in part with something that it can regulate, but falls outside its boundaries. The most powerful argument in favor of FCC regulation is that "it's all speech in the end"—it was transmitted through something that is inherently part of the web of the interstate wire system (pun intended). However, Professor Crawford properly notes that we're talking about something—911 services—that is inherently local in nature. So, then, where does the FCC get its authority? It's not in the FCC Act as amended, so far as I can tell. Either I'm missing something, which is certainly possible… or the FCC is. Which is certainly possible.

  1. Assume that there are no securities issues, no victimization of the Federal government, no bribery of a public official… in short, assume that federal criminal jurisdiction depends only on mail and wire fraud.
  2. As if we didn't already know that after the attempts to relax media-ownership rules through an invalid process failed. Note that the old-line, station-to-station telephone companies are leading the charge here, as they want to ensure there's no competition for local telephone service.