Home » News » N.D. high court rejects First Amendment challenge to Fargo’s phone-harassment ordinance

By David L. Hudson Jr., published on August 13, 2021

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Photo courtesy iStock: Chainarong Prasertthai

Fargo’s telephone-harassment ordinance does not violate the First Amendment, the North Dakota Supreme Court has ruled in the case of a man who sent hundreds of vulgar phone messages to police officers over a two-year period.


Dennis Lee Roehrich left countless messages to three different police officers over the police department’s handling of his son’s car accident and traffic ticket. Roehrich apparently was convinced that a police officer had committed perjury related to his son’s incident.


In May 2019, authorities in the City of Fargo charged Roehrich with violating Fargo’s telephone-harassment ordinance, which reads:


A person is guilty of an offense, if, with intent to frighten or harass another, he:


  1. Makes a telephone call anonymously or in offensive coarse language;
  2. Makes repeated telephone calls or other electronic communication, whether or not a conversation ensues, with no purpose of legitimate communication; or
  3. Communicates a falsehood in writing or by electronic communication and causes mental anguish.

A jury in state district court found Roehrich guilty of harassment.


On appeal, Roehrich argued that the ordinance was unconstitutionally vague and in violation of the First Amendment. For his vagueness argument, Roehrich emphasized that the ordinance did not define “purpose of legitimate communication” and argued that his calls were made for a legitimate purpose, such as to inform officers about officer perjury.


However, the state high court rejected the vagueness argument, writing that the ordinance “provides a reasonable person with adequate and fair warning of the prohibited conduct.”


The court added that “the record established that he [Roehrich] made hundreds of telephone calls to three officers over a period of two years and many of the calls had no purpose of legitimate communication.”


One officer testified that Roehrich had made more than 150 telephone calls to him and that many of the calls never mentioned the accident report.


Roehrich also argued on appeal that the ordinance violated the First Amendment because it criminalized protected speech. But the North Dakota Supreme Court rejected this argument too in its Aug. 5, 2021, decision in City of Fargo v. Roehrich.


The court wrote that “[t]he First Amendment may protect the content of the speech, but the conduct used in delivering the speech may not be protected.” The court also explained that speech integral to criminal conduct is not protected by the First Amendment, citing the U.S. Supreme Court’s decision in Giboney v. Empire Storage & Ice Co. (1949).


The North Dakota Supreme Court concluded that Roehrich had made repeated telephone calls with the requisite intent to frighten and harass police officers.


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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).



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