The Volokh Conspiracy
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From State v. Burkert, released today by a New Jersey appellate court, the summary:
Defendant's conviction [for harassment] was based upon his creation of two "flyers" that contained the wedding photo of a fellow Union County corrections officer (the Sergeant), which was altered to include vulgar handwritten comments in speech bubbles….
We reverse defendant's conviction because the evidence failed to prove he engaged in harassing conduct directed to the Sergeant …. Rather, the commentary defendant added to the Sergeant's wedding photograph was constitutionally protected speech….
The Sergeant and defendant had been co-workers for twenty years. Throughout that time, "tension" and "animosity" developed between the two, in part because each was a member of a different union that represented corrections officers.
On January 8, 2011, when he arrived at work, the Sergeant found a flyer in the parking garage containing his wedding photo on which "pornographic things" were written. The Sergeant testified he was "upset, angry" and "very offended and humiliated." He recognized the handwriting on the photo as defendant's. As the Sergeant proceeded to the gun locker, he saw defendant and defendant's brother, a fellow corrections officer, blocking the doorway….
On January 9, 2011, the Sergeant was given a second flyer by a co-worker, which was found in the locker room vestibule area. Although the photograph was identical to the first, the added message was different, and the Sergeant recognized it too as being written by defendant. On January 11, 2011, Lieutenant Patricia Mauko found two lockers overturned and the offensive photos strewn on the floor. The Sergeant was not at work that day but was involved in union business, during which a superior officer handed the Sergeant a copy of the second flyer stating, "this came out the other night." …
The Sergeant testified he became distraught, embarrassed, and feared for his safety because he believed his authority with inmates was undermined. He left work and never returned. He filed for worker's compensation, asserting a work-related psychiatric injury, and thereafter retired….
[D]efendant [eventually] admitted to printing the Sergeant's wedding photograph, which was posted on NJ.com's Union County forum, and to adding the captions. Defendant denied making any other copies, circulating the flyers, or asking anyone else to do so….
Defendant testified … [that] over the years he noticed derogatory posts repeatedly appearing on an NJ.com forum, which increasingly became "personal" regarding him, his brothers, and other family members. Defendant checked the screenname attached to these posts, and found the Sergeant's wedding picture, which was also posted on the forum. Defendant became angry, copied the wedding picture at home, added the captions, and hung them in his office "in the union house." …
[T]he [trial] judge concluded the direct and circumstantial evidence supported a finding defendant made copies of the flyers and distributed them in the garage and the locker room as "payback" for the derogatory internet postings. Defendant was found guilty of harassment based on the incidents occurring on January 8 and 11. Fines and assessments were imposed.
The relevant statute:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he … [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
And the appellate court's reasoning, which concluded that defendant's speech was protected by the First Amendment against punishment (though it might have led to firing or other discipline by the government employer), and which reversed a contrary decision below (emphasis added):
[T]he evidence does not support a finding that defendant's creation of the flyer found in two areas of the jail were directed to and invaded the privacy rights of the Sergeant. Also, no proof supports such acts were a direct attempt to alarm or seriously annoy the Sergeant. Rather, defendant's uncouth annotations to the Sergeant's wedding photograph that was generally circulated amounts to a constitutionally protected expression, despite its boorish content, which bothered or embarrassed the Sergeant.
United States Supreme Court precedent repeatedly holds expressions remain protected even where the content hurts feelings, causes offense, or evokes resentment. [Many citations omitted. -EV] …
[T]he altered photograph in question was not directed to the Sergeant. Were the Law Division's application of N.J.S.A. 2C:33-4(c) upheld, criminal harassment would curb speech ranging from a person submitting a Facebook post excoriating an ex-lover for cheating, to the creation of offensive political flyers criticizing a city council member. One-To-One Speech vs. One-To-Many Speech, Criminal Harassment Laws, and "Cyberstalking", 107 Nw. U. L. Rev. 731, 732-34, 774 (2013) (distinguishing the constitutional protections applicable to "one-to-one speech" and from those protecting "one-to-many speech")….
"Speech is often 'abusive'—even vulgar, derisive, and provocative—and yet it is still protected under the … Federal constitutional guarantees of free expression unless it is much more than that …. [b]ut unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized." "It is now clear that words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment."
Defendant's comments were unprofessional, puerile, and inappropriate for the workplace. Our opinion does not address whether the nature of defendant's written comments, which were posted in his workplace, may subject him to discipline by his employer. However, they do not amount to criminal harassment.
Sounds quite right to me. My students Daniel Korda, Melanie Rollins, and Sam Sazer and I filed an amicus brief in the case on behalf of the Pennsylvania Center for the First Amendment, arguing in favor of the result that the court just reached. (Many thanks to pro bono local counsel J. Gregory Crane for his help, and congratulations to Steve Kaflowitz, Burkert's lawyer, on the victory.) Here is the substance of that brief, though you can also read it in PDF:
* * *
The Superior Court interpreted the criminal harassment statute in an unusually broad way. Criminal harassment laws have traditionally punished only speech to a particular person who does not want to hear it (as well as constitutionally unprotected speech such as true threats of violence). See, e.g., State v. Hoffman, 149 N.J. 564 (1997) (discussing harassment prosecution for ex-husband's unwanted mailing to his ex-wife). But the Superior Court read the statute as also applying to speech about a particular person—a reading that would sweep in a vast amount of constitutionally protected speech: Facebook posts condemning cheating ex-lovers, leaflets saying offensive things about political officials, criticisms of businesses by disgruntled consumers, and more. Such a reading would render the statute unconstitutionally overbroad.
Unlike speech communicated to an unwilling listener, speech communicated to others about an unwilling subject has consistently been protected by the United States Supreme Court. Compare, e.g., Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (holding that speech about an unwilling subject is constitutionally protected), with Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 736-37 (1970) (holding that speech to an unwilling recipient is restrictable). Speech to an unwilling listener is likely of little value, since the only listener does not want to hear it. But speech about an unwilling subject, said to an audience that includes willing listeners, is potentially valuable. It thus may not be restricted, unless it fits within a recognized exception to the First Amendment (such as the "true threats" exception).
Nor would the statute, as read by the Superior Court, be saved by the requirement of a "purpose to harass" and a "purpose to alarm or seriously annoy." As the Supreme Court has repeatedly held, a "speaker's motivation" is generally "entirely irrelevant to the question of constitutional protection." FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007) (lead opinion) (citation omitted); id. at 495 (Scalia, J., concurring in part and concurring in the judgment) (likewise rejecting a test based on speaker motivation). While New Jersey courts are required to find a "purpose to harass" and a "purpose to alarm or seriously annoy" in order to convict a defendant under N.J.S.A. 2C:33-4(c), such a finding by itself does not strip speech of constitutional protection.
The amicus therefore asks this Court to follow recent decisions in neighboring jurisdictions and limit the reach of N.J.S.A. 2C:33-4 to cases where, as in Hoffman, speech is communicated solely to an unwilling listener….
I. The Superior Court's Interpretation of N.J.S.A. 2C:33-4(c) Is Overbroad Because It Criminalizes a Substantial Amount of Protected Speech
A. Unwanted Speech Said Solely to a Person Is Often Constitutionally Unprotected, but Speech Said About a Person Must Generally Be Protected
Criminal harassment laws have traditionally been applied to speech said to a particular unwilling person—for instance, telephone calls, letters sent to a particular home, or e-mails sent to a particular person. This, for instance, was the speech involved in Hoffman, where the harassment prosecution was based on an unwanted mailing sent by an ex-husband to his ex-wife; in State v. L.C., 283 N.J. Super. 441, 444-45 (1995), where the prosecution was based on unwanted face-to-face statements to defendant's ex-husband; and State v. Finance American Corp., 182 N.J. Super. 33, 36 (1981), where the prosecution was based on unwanted telephone calls to a debtor by a creditor.
And the Supreme Court has held that such speech is generally unprotected, because "no one has a right to press even 'good' ideas on an unwilling recipient." Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 738 (1970) (upholding statute that let residents order a sender to stop sending them mail); see also Hill v. Colorado, 530 U.S. 703, 717, 727 (2000) (upholding ordinance barring speakers from coming within eight feet of health care facility patrons without the patrons' consent, precisely because "only attempts to address unwilling listeners [were] affected" by the law); Frisby v. Schultz, 487 U.S. 474, 483, 486 (1988) (upholding residential picketing ban because it focused on speech "narrowly directed at the household, not the public," and left people free to communicate with willing listeners). Speech to a particular unwilling listener is unlikely to persuade or enlighten anyone, precisely because the listener does not want to hear it. It is therefore of lesser constitutional value than other speech.
But when speech is said to a group of people, and can thus reach willing listeners, such speech is constitutionally protected even when it says offensive things about a particular person. For instance, in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Court held that members of the Organization could not be enjoined from distributing leaflets alleging that Keefe, a local real estate broker, engaged in supposedly unfair business practices. "No prior decisions," the Court held, "support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court." Id. at 419. And Rowan did not apply, the Court in Keefe held, because Keefe was "not attempting to stop the flow of information into his own household, but to the public." Id. at 420.
Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the United States Supreme Court held that speech revealing the names of African-Americans who had refused to go along with an NAACP-led boycott was constitutionally protected—even though the speech was doubtless embarrassing to some people who were named, and even exposed them to some risk of violence. Id. at 889-91, 910. And Snyder v. Phelps, 131 S. Ct. 1207 (2011), and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), both likewise upheld the right to say highly offensive things about people.
The United States Supreme Court's caselaw thus distinguishes offensive speech to a person (often constitutionally unprotected) from offensive speech about a person (constitutionally protected). See Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. 781, 818-24 (2013) (likewise noting this distinction drawn by the cases). And the New Jersey Supreme Court's decision in Hoffman is consistent with these precedents, because it discussed offensive speech to a person, not about the person.
The Hoffman Court noted that N.J.S.A. 2C:33-4 was enacted as part of the Domestic Violence Act, which "effectuates the notion that the victim of domestic violence is entitled to be left alone." Hoffman, 149 N.J. at 584. The purpose of the harassment statute, the Court noted, was "to make criminal, private annoyances that are not entitled to constitutional protection." Id. at 576. And the Court was only called upon to address N.J.S.A. 2C:33-4 as applied to a classic case of unwanted speech said to the target—an ex-husband's repeatedly communicating with his ex-wife, and ultimately mailing her a package containing a torn up copy of a support order issued by a court. Id. at 573.
The Court understandably had little trouble concluding that the mailing was directed at Hoffman's ex-wife, was motivated by nothing more than a purpose to harass, and might be constitutionally unprotected under certain circumstances. Id. at 584-86. But expanding this precedent to speech said about a particular person—not just speech directly sent to that person alone—would conflict with the United States Supreme Court precedent discussed above.
B. The Superior Court Opinion Reads the Harassment Statute as Criminalizing Speech About a Person, Which Would Render the Statute Unconstitutional
The Superior Court's opinion interprets N.J.S.A. 2C:33-4(c) to cover speech said to potentially willing listeners about an offended person, since the defendant was convicted for distributing flyers about the complainant to a large audience, which could have included many willing listeners. There is no indication in the Superior Court's opinion that the defendant was convicted solely based on speech that constituted "fighting words" or some other exception to the First Amendment.
Indeed, the Superior Court's reading of the harassment statute would apply to a vast range of repeated speech about everyone from ex-lovers to businesspeople to political officials, so long as the trier of fact concludes that the speech was said with a "purpose to harass." If a woman posts several messages on her Facebook page excoriating her ex-lover for cheating on her, she could be guilty of a crime. If someone posts messages harshly criticizing a local businessperson—even without any threats or false and defamatory factual assertions—he too could be guilty, if he is seen as motivated by a purpose to harass the businessperson.
And the same could even be true if someone distributes offensive flyers criticizing a city council member. Indeed, there has already been one such prosecution in New Jersey based on allegedly "harassing" flyers about a local politician.
In 2011, a Hawthorne, New Jersey, city council candidate named Philip Speulda posted a photograph of his opponent in a hot tub with two other men on one of his campaign flyers. Speulda used the photograph to suggest that his opponent should not be elected because he might be homosexual, or at least because taking such a photograph was inappropriate for a public official. Speulda was issued a criminal summons for harassment under N.J.S.A. 2C:33-4(a). [Footnotes here and elsewhere below omitted.-EV] The charges were eventually dropped, but without any indication that criminal summons of this sort would not continue to be issued in similar cases.
While Speulda's speech was distasteful and likely bigoted, many potential voters likely believe—correctly or not—that sexual orientation is a relevant factor to consider in assessing a candidate's fitness for office. There is no constitutionally significant distinction between Speulda's speech and a newspaper report about a politician's affair with a staffer, or a talk show host's question about whether President Obama is a secret Muslim. The Superior Court's interpretation of N.J.S.A. 2C:33-4(c) could reach each of these communications, as well as other political speech. (For more examples of how unduly broad readings of harassment statutes have been applied to speech on matters of public concern, see Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731, 734-38 (2013), http://www.law.ucla.edu/volokh/crimharass.pdf.)
Thus, while it may be constitutional for N.J.S.A. 2C:33-4(c) to restrict some speech to an unwilling subject, the Superior Court's interpretation—under which the law punishes even speech about an unwilling subject—is unconstitutionally overbroad.
C. The Superior Court's Interpretation of N.J.S.A. 2C:33-4(c) Is Not Saved by the Statutory Requirement That the Speaker Have a "Purpose to Harass"
In convicting the defendant, the Superior Court seemed to take the view that the defendant's speech lost its First Amendment protection because the defendant had a "purpose to harass" and "alarm or seriously annoy" the complainant. Super. Ct. Op. 7. But the United States Supreme Court has held that speech does not lose its constitutional protection simply because the speaker had a supposedly improper purpose.
When it comes to speech said to potentially willing listeners, "a speaker's motivation" is generally "entirely irrelevant to the question of constitutional protection." FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007) (lead opinion) (citation omitted); id. at 495 (Scalia, J., concurring in part and concurring in the judgment) (likewise rejecting a test based on speaker motivation). Thus, in Garrison v. Louisiana, 379 U.S. 64 (1964), the Court rejected the view that defamatory speech could be punished based simply on the motives of the speaker, even a "wanton desire to injure." Id. at 78. As the Court explained, "[i]f upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice." Id. at 73 (internal quotation marks and citation omitted).
Likewise, in Hustler, 485 U.S. at 53, the United States Supreme Court overturned an intentional infliction of emotional distress verdict on the grounds that a bad motive does not strip speech of constitutional protection. And in Snyder, 131 S. Ct. at 1219, the Court applied this principle to speech about private figures as well. Though the flyers distributed by the defendant may well have been intended to offend the complainant, Wisconsin Right to Life, Garrison, Hustler, and Snyder show that speech does not lose constitutional protection simply because it is motivated by malice, the desire to inflict emotional distress, or any similar motive to offend, annoy, or harass.
And though Hustler and Snyder only address speech on matters of public concern, neither the Superior Court's interpretation of N.J.S.A. 2C:33-4(c) nor the statute itself makes such a distinction. As construed by the Superior Court, the statute would cover flyers that relate to a person's alleged political misconduct or business misconduct as much as to those related to a person's alleged sexual misconduct.
Nor can speakers feel secure that a judge or jury will find them to lack a "purpose to harass" or a "purpose to alarm or seriously annoy" when they speak out about politicians, businesspeople, or ex-lovers. As the United States Supreme Court held in Reno v. ACLU, 521 U.S. 844, 874 (1997), the "vague contours" of undefined statutory terms will cause "some speakers whose messages would be entitled to constitutional protection" to censor themselves. In Reno, the Court so held with regard to the terms "indecent" or "patently offensive"; but this is also true as to the vague contours of "harass," "alarm," and "seriously annoy" (as defined to mean "to weary, worry, trouble, or offend," 149 N.J. at 581). When speech about a person is intended to inform or to righteously condemn, and when it is intended to harass, alarm, or annoy, is often in the eyes of the beholder.
And this chilling effect on speakers is especially likely, as the United States Supreme Court noted in Wisconsin Right to Life, 551 U.S. 449 at 468, with regard to purpose tests. In Wisconsin Right to Life, the Court struck down a statute that restricted the use of corporate funds to finance "electioneering communications." The Court rejected the Government's contention that the statute remained constitutional as long as it was interpreted only to apply to communications that were "inten[ded] to affect an election" (as opposed to seeking to inform the public on a specific issue). Id. at 456, 467. "Far from serving the values the First Amendment is meant to protect," the Court held,
an intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of [the statute], on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad covered by [the statute] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard "blankets with uncertainty whatever may be said," and "offers no security for free discussion."
Id. at 468 (lead opinion) (citations omitted); id. at 492 (Scalia, J., concurring in part and concurring in the judgment) (likewise concluding that "test[s] that [are] tied to the public perception, or a court's perception, of … intent" are "ineffective to vindicate the fundamental First Amendment rights" of potential speakers).
The same reasoning applies here. Under the Superior Court's interpretation, any repeated speech about a person that has the "purpose to harass" and "alarm" or "seriously annoy" its subject could be criminally punished. Yet such an "intent-based test would chill" "core political speech," criticism of businesses, and speech to friends about breakups and abuse, even when that speech is actually well-motivated.
Speakers would realize that they are in peril of criminal prosecution "on the theory that" they "actually intended to" harass the subject of the speech. And many of them would thus choose not to speak, when their "only defense to a criminal prosecution would be that [their] motives were pure."
[Footnote moved: The other possible interpretation of the Superior Court's opinion is that N.J.S.A. 2C:33-4(c) is generally a restriction on conduct, not just on speech, and that such conduct restrictions are subject to less First Amendment scrutiny. But this very argument was rejected by Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), where the government argued that a statute should "receive intermediate scrutiny" applicable to content-neutral restrictions, rather than the strict scrutiny applicable to content-based restrictions, "because it generally functions as a regulation of conduct." "That argument," the United States Supreme Court held, "runs headlong into a number of our precedents, most prominently Cohen v. California, 403 U.S. 15 (1971)":
Cohen also involved a generally applicable regulation of conduct, barring breaches of the peace. But when Cohen was convicted for wearing a jacket bearing an epithet, we did not apply O'Brien [which calls for merely intermediate scrutiny of content-neutral restrictions on conduct]. Instead, we recognized that the generally applicable law was directed at Cohen because of what his speech communicated ‑- he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied more rigorous scrutiny and reversed his conviction.
This suit falls into the same category. The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.
561 U.S. at 27-28. The Humanitarian Law Project opinion therefore held that the statute must be treated in that case as a content-based speech restriction, and the same reasoning applies here: even though N.J.S.A. 2C:33-4(c) may sometimes be applied to nonspeech conduct, in this instance it was applied to speech based on the offensive content of that speech.]
D. Nearby State and Federal Courts Have Held Similar Statutes to Be Overbroad
Nearby state and federal courts have recognized the First Amendment problems with punishing critical, even offensive, speech about others as "harassment." Thus, in People v. Golb, 15 N.E.3d 805, 813 (N.Y. 2014), the New York Court of Appeals struck down a statute that broadly made it a crime to, "with intent to harass, annoy, threaten or alarm another person," "communicate with a person … in a manner likely to cause annoyance or alarm." The court relied on an earlier precedent striking down a similar statute, People v. Dietze, 549 N.E.2d 1166 (N.Y. 1989); and Dietze had concluded that "[s]peech is often 'abusive'—even vulgar, derisive, and provocative—and yet it is still [constitutionally] protected … unless it is much more than that." Id. at 1168. "Casual conversation," the Dietze opinion noted, "may well be 'abusive' and intended to 'annoy'; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion." Id. Yet such speech remains protected so long as it is not "fighting words." Id.
More recently, the New York Court of Appeals reaffirmed this, specifically with regard to a law that had been applied to speech about people (and not just speech to an unwilling listener). In People v. Marquan M., 19 N.E.3d 480, 484, 488 (N.Y. 2014), the court struck down a cyberbullying ordinance that criminalized "any act of communicating" "with no legitimate private, personal, or public purpose" "with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." The court reasoned that "the text of Albany County's law … criminaliz[es] a variety of constitutionally-protected modes of expression," and was therefore unconstitutionally overbroad. Id. at 488. And the court concluded that the limitation to speech that supposedly has "no legitimate purpose" did not render the statute constitutional: "the First Amendment forbids the government from deciding whether protected speech qualifies as 'legitimate,'" id. at 487.
Likewise, in United States v. Cassidy, 814 F. Supp. 2d 574, 584-85 (D. Md. 2011), a federal court dismissed a federal stalking prosecution on First Amendment grounds, where the stalking consisted largely of hundreds of offensive Twitter messages about a religious figure. The court noted that, "[t]ellingly, the Government's Indictment is not limited to categories of speech that fall outside of First Amendment protection," such as "true threats" or "defamation." Id. at 583. And the court concluded that the indictment had to be dismissed, because the "statute sweeps in the type of expression that the Supreme Court has consistently tried to protect," because such e-mail messages sent to a broad audience differ from "harassing telephone calls" that are "directed to a victim," and because "the Government's interest in criminalizing speech that inflicts emotional distress" is not sufficiently compelling to justify the restriction. Id. at 585, 586.
These courts have thus recognized the dangers of allowing harassment laws to broadly outlaw allegedly ill-intentioned speech about a person, and have either set aside particular prosecutions or struck down entire statutory schemes. As noted above, the United States Supreme Court precedent likewise prohibits statutes that punish speech about a person (as always, setting aside existing First Amendment exceptions such as the one for true threats), and the New Jersey Supreme Court's precedent in Hoffman does not authorize such prohibitions, either.
Fortunately, in this case there is no need to strike down N.J.S.A. 2C:33-4(c). That statute should simply be read, in light of this caselaw, as applying only to speech said to an unwilling listener, rather than speech said to a larger group or to the public at large.
Amicus urges this Court to hold that where, as in this case, a prosecution does not involve "fighting words" or some other exception to the First Amendment, N.J.S.A. 2C:33-4 should be narrowly construed as not covering offensive speech said to potentially willing listeners about a particular person. Hence, this Court should reverse the defendant's conviction for harassment under N.J.S.A. 2C:33-4(c).