Can Repeated Speech Be Criminalized Just Because It's Intended to "Seriously Annoy"?

No, says the New Jersey Supreme Court in an opinion that sharply limits the state criminal harassment statute.

|The Volokh Conspiracy |

I'm delighted to report that the New Jersey Supreme Court just handed down State v. Burkert, which sharply limited the scope of New Jersey's criminal harassment law. My Scott & Cyan Banister First Amendment Clinic students Daniel Korda, Melanie Rollins, and Sam Sazer and I filed an amicus brief at an earlier stage in the case on behalf of the Pennsylvania Center for the First Amendment, arguing in favor of the result that the court just reached, and the brief was then adapted to the Supreme Court stage of the case as well. (Many thanks to pro bono local counsel J. Gregory Crane for his help, and congratulations to Steve Kaflowitz, Burkert's lawyer, on the victory.)

[1.] New Jersey law, in relevant part, makes it a crime to engage in a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [a] person," when that is done "with purpose to harass." In this opinion, the court held that—because of the First Amendment—such a law must be limited when it's applied to expression (rather than other conduct or acts):

[F]or constitutional reasons, we will construe the [statute as covering only] repeated communications directed at a person [1] that reasonably put that person in fear for his safety or security or [2] that intolerably interfere with that person's reasonable expectation of privacy.

The first category appears to be limited to speech that's unprotected by the First Amendment because it falls within the "true threats" exception. The second appears to be limited to "unwanted communications to a subject" (which I assume wouldn't extend just to communications about the subject) such as

over the course of a week, either repeatedly yell[ing] outside an ex-partner's house during the night, or repeatedly follow[ing] closely next to a woman importuning her for a date or making other unwanted comments, despite constant demands to stop.

This is consistent with several recent cases striking down broad state criminal harassment statutes—or reading them narrowly to avoid invalidating them—such as People v. Relerford (Illinois), People v. Marquan M. (New York), State v. Bishop (North Carolina), and Commonwealth v. Welch (Massachusetts). And I think that, in broad outline, this is generally right; as I argued in my One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" (Nw. U. L. Rev. 2013), such speech must remain protected unless it (1) falls within a First Amendment exception, such as the one for "true threats," or (2) it is said specifically to a person rather than about the person (the classic example being harassing phone calls to the person's home). There are various complications, as usual (for instance, I think even repeated unwanted speech to government officials would often be protected), but that's the right broad outline.

[2.] And the court's rationale strikes me as generally sound, too. Here are some key elements:

a. The government can't defend a broad reading of the law on the grounds that the law bans "conduct" rather than speech. As applied to speech, the law operates as a speech restriction:

Speech … cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt.

b. The "purpose to harass" element doesn't save the law; because "one common definition of harass is to annoy," "the words 'harass' and 'annoy' are interchangeable"—and a purpose to seriously annoy cannot strip speech of constitutional protection.

c. Nor can the law be defended on the grounds that "harassment" is unprotected speech as such: "There is no categorical 'harassment exception' to the First Amendment's free speech clause." (Here, the New Jersey Supreme Court is quoting a 2001 Third Circuit opinion written by then-Judge Alito.)

[3.] As narrowed, the law can't apply to the facts of the case, even though the facts involve only a personal dispute with little political component. (Harassment laws sometimes have been applied to political debates, see the Introduction to my 2013 article, or for that matter the Moriwaki v. Rynearson restraining order case that I'm currently litigating in Washington court.)

As of January 2011, [complainant] Halton and [defendant] Burkert had both worked as Union County correctional officers for more than twenty years. Halton served as a sergeant and also as the vice president of the Fraternal Order of Police (FOP), a union representing high-ranking corrections officers. Burkert served as a corrections officer and also as the treasurer of the Policemen's Benevolent Association (PBA), a union representing rank-and-file corrections officers.

The rivalry between those two unions evidently caused friction in their personal relationship. The tension became much more acute when Burkert learned that Halton's wife was posting derogatory comments about him and his family on a public internet forum. Halton's wife referred to Burkert and his two brothers—who also were corrections officers—as bullies. According to Burkert, the postings also described him as "fat" and one of his brothers as "quirky" and "kind of retarded."

Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons' wedding photograph, which Halton's wife apparently had posted on a social media website. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom. On Flyer #1, over Halton's face were the words, "I know I'm a pussy with a little dick. Don't do the inmates please Laura," and over his wife's face were the words, "I wish you had a cock like the inmates." On Flyer #2, over Halton's face, the writing stated, "Fam, I got me another whore." According to Halton, "fam" is a term denoting the corrections officers as family, and the dialogue on the flyers obliquely referenced his prior wife, a former corrections officer who he claimed had relations with another officer and an inmate.

Halton testified that on January 8, 2011, at approximately 10:45 p.m., he arrived at the employee garage of the Union County Jail, parked his vehicle, and saw papers "blowing all over the place." He picked one up and discovered Flyer #1. Halton was offended and humiliated by the scurrilous writing over his wedding photograph. As he approached the gun locker area, Burkert and his brother … stood in his path. As he walked between them, Halton asked, "What's up," and Burkert replied, "You're what's up." Later, while Halton was working at the booking area, he received a call from Burkert. During their conversation, Burkert mentioned that Halton's wife had called him fat; Halton denied having any knowledge of it. When asked, Burkert denied knowing about the flyers. The conversation came to an inconclusive end.

The next day, January 9, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers' locker room. Halton identified the handwriting on both flyers as Burkert's.

On January 11, while Halton was off his usual schedule and engaged in union negotiations for the FOP, a lieutenant handed him Flyer #2, stating, "This came out the other night." The flyer was the same one turned over to Halton two days earlier. [Footnote: Lieutenant Patricia Mauko testified that she found twenty to thirty copies of one of the flyers during a routine inspection of the corrections officers' locker room on January 11.]

Halton indicated that he "was a mess in negotiations," went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment. He received workers' compensation benefits for this work-related injury and retired on November 1, 2011. Halton acknowledged that he did not know who was responsible for placing the flyers in the various locations.

The court stressed that Burkert's speech could have (and did) lead to discipline by the employer (since the government as employer has more power to discipline, or even fire, its employees for speech than to fine or imprison people for speech), and that it might also lead to civil liability, perhaps for defamation (footnote 8). But the speech couldn't be punished under the criminal harassment law:

[T]he bubble dialogue Burkert scribbled on Halton's wedding photograph was "lewd and obnoxious" and seriously annoyed Halton as it would have any reasonable person. Burkert clearly intended to seriously annoy Halton because he believed that Halton's wife had insulted Burkert and members of his family on an internet website. [There can be no doubt that] Burkert's expressive activity—placing offensive dialogue on Halton's wedding photograph and then circulating the flyers—was boorish, crude, utterly unprofessional, and hurtful….

[But the flyers] did not threaten or menace [Halton]. Nothing in the record suggests that Halton's safety or security were put at risk by the flyers, or that any inmates got ahold of them.

The record, moreover, does not establish that Burkert had repeated unwanted communications with Halton. Burkert's only direct interaction with Halton concerning the flyers occurred on January 8. The rude and loutish dialogue on the flyers obliquely referred to a matter apparently of common knowledge among many corrections officers—that Halton's former wife allegedly had relations with a corrections officer and inmate. Although Burkert displayed appalling insensitivity, he did not engage in repeated unwanted communications with Halton that intolerably interfered with his reasonable expectation of privacy.

This makes sense given the earlier language (quoted in item 1 above) that the category of speech "intolerably interfere with that person's reasonable expectation of privacy"—which the court views as criminally punishable—is limited to certain kinds of "unwanted communications to a subject," and not just speech about him.

[4.] One of the seven Justices, Justice Solomon (good name for a judge), agreed with the majority's limiting reading of the statute, but concluded that Burkert would indeed be punishable even under that reading.

a. First, he argued that the flyers might be punishable because they could put Halton at risk of physical attack (though not by Burkert):

The content of the flyers was such as to inspire mockery and potential disobedience by inmates. Halton testified that the flyers made him fearful because inmates might have seen or redistributed the flyers. Halton testified that "inmates clean [the locker room] … [s]o I was afraid that an inmate got a hold of it … part of my anxiety [was] that they got a hold of it and they were showing it to all the inmates in the jail and that my authority was going to be undermined." Halton also testified that he felt the flyers undermined his authority with co-workers as well, which led him to fear that his safety at the jail was in jeopardy…. [I]t was reasonable to find that Halton feared for his safety considering he worked in a position of authority in a county jail where Burkert distributed the two profane flyers.

b. Second, he argued that speech—at least in the workplace—it was indeed an "intolerabl[e] interfere[nce] with … reasonable expectation[s] of privacy" for a person's "personal life" to "be brought into his place of employment for all of his co-workers, and possibly inmates, to see, discuss, and ridicule." It thus appears that Justice Solomon would read the law as perhaps criminalizing the tort of disclosure of private facts (he mentions the intrusion upon seclusion tort, but I don't think it would apply here), at least when the facts are disclosured with a supposedly malign purpose. But the majority did not take this view.

[5.] So, on balance, this seems to me a sound and pretty strongly constitutionally protective decision—and one that, together with the other state high court decisions cited above (see item 1), will have influence outside New Jersey as well.