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Volokh Conspiracy

"Weedman" prosecuted for "cyber harassment" for calling a N.J. police officer a "pedophile" online


Steve Nelson (U.S. News) has the story:

Edward Forchion operates a restaurant called NJ Weedman's Joint across the street from City Hall in Trenton, New Jersey's capital. Next door is his "temple," where state-legal medical marijuana patients and other congregants use cannabis.

Forchion says business boomed after he opened shop last year, but that cops scared off customers when a fight over whether the temple could stay open late at night snowballed. On May 10, he walked out of his restaurant with a sign saying "We-R-Open F-k the Police." Cops arrived, including Trenton Police Department Officer Herbert Flowers.

"We got pedophile police officers interfering with free speech—this is protected, if it wasn't protected he would have arrested me," Forchion said as he heckled Flowers, asking at one point if the policeman used a condom with "that little girl." …

Three days later, Forchion was arrested and charged with cyber harassment for the posting online of footage showing him call Flowers a pedophile, disorderly conduct for using "offensive language towards and against law enforcement officers in public and social media forum," and possession of less than 50 grams of pot.

But wait! The "offensive language" statute, N.J. Stats. § 2C:33-2, was held unconstitutional by State in the Interest of H.D. (N.J. Super. Ct. App. Div. 1985). The relevant provision makes it a crime to, "in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present"; but that violates the First Amendment, because it goes far beyond punishable "fighting words" (which in any event wouldn't include online posts).

The "cyber harassment" statute, N.J. Stats. § 2C:33-4.1 may also be unconstitutional. It provides, in relevant part, that,

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …

(2) knowingly … posts … any lewd, indecent, or obscene material … about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person….

That, I think, violates the First Amendment, for reasons I gave in this article; while the law may often restrict speech directed to unwilling listeners, it generally can't restrict speech about unwilling people, even when that speech is "lewd" or "indecent" and is supposedly "inten[ded] to emotionally harm." That's especially clear when the speech is about police officers or other government officials.

But in any event, this statute doesn't cover the actual video in this case:

The video certainly isn't "obscene" in the sense of being hard-core pornography that fits within the obscenity exception. "Lewd" and "indecent" aren't defined in the statute (which may itself be a problem), but it's hard to see how the statements in the video are either. At worst, they are accusations that the police officer is a pedophile and taunts about whether the officer used a condom when having sex with a little girl, but while those are certainly very serious allegations, they aren't "lewd" and "indecent."

To conclude otherwise, you'd have to say that all accusations of sex crimes are covered by the law, if intended to "harass" and "emotionally harm"—which is hard to imagine as a reasonable interpretation of the statute. Indeed, the closest definition I could find for "lewd" was for "lewd acts," in a different New Jersey statute: "'lewd acts' shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person." That, unsurprisingly, reinforces the notion that "lewd" speech requires some element of sexual arousal or gratification, something that is absent in the video.

Moreover, the marijuana charge apparently stems from marijuana found during the arrest for the speech. If I'm right, then the arrest wasn't based on probable cause to believe that a crime was committed, and was thus a Fourth Amendment violation; the marijuana would have to be suppressed, and the charge would have to be thrown out.

Now accusing someone, police officer or not, of being pedophile may well be libel. The New Jersey legislature, however, has repealed its criminal libel law, and the criminal harassment law is not a substitute: It doesn't require all the elements required for libel law, criminal or otherwise, such as proof of falsehood (and any necessary mental state as to the falsehood). The police officer could sue Forchion for such speech. But he can't lawfully have him prosecuted for it.

(You can see the criminal complaints here.)