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.


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.

NEXT: Trump's Record on Judges

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  1. Because it seems relevant:
    “Hello. My name is Inigo Montoya. You killed my father. Prepare to die.”

    Anyone know how many times that phrase was said in the movie?

    1. Well, that would indeed be a punishable true threat of criminal attack.

      1. We’re lucky that this comment about a movie “seems relevant,” because otherwise it might have been removed as “off-topic.”

        More to the point, the speech in America’s leading criminal “harassment” + criminal “parody” case, People v. Golb (see the documentation at: https://raphaelgolbtrial.wordpress.com/), was “about,” not “to” the person in whose “name” it was sent. The New York Court of Appeals held that such speech could nonetheless be criminalized if it is intended to “damage a reputation,” a broad standard that makes no distinction between truthful and false/malicious harm to reputation. The Second Circuit deferred to the broad standard, but vacated multiple convictions that the New York high court had left intact, because the “impersonations” (or inappropriately deadpan parodies) that they criminalized may have been intended to call attention to a viewpoint or stir up controversy rather than to “damage a reputation.” Commentators (e.g. Prof. Arthur Hayes) have argued that the “damage to reputation” standard is unconstitutionally vague and overbroad, but Eugene disagrees.

        1. P.s. and let’s be clear: Eugene Volokh’s assertion, contrary to others, that the standard created by the New York Court of Appeals in People v. Golb is correct, is an argument that the reach of the First Amendment should be narrowly construed. In this respect, the argument is similar–in fact, even identical–to Eugene’s amicus-brief argument in United States v. Alvarez (the “Stolen Valor” case), an argument for narrowly construing the First Amendment that was rejected by the Supreme Court.

          1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

            This is what I do… http://www.onlinecareer10.com

          2. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

            This is what I do… http://www.onlinecareer10.com

  2. This is another First Amendment win for EV, and a good one (in my opinion) given the specifics of the case. It raises for me, though, a question on a different issue, which is perhaps not relevant here but is First-Amendment related and will arise again — that of the Colorado cake baker.

    Why has EV entered an amicus brief in favor of the state of Colorado’s compelling the cake baker to engage in expression favoring a celebration of which he religiously disapproves? The (to me) inconsistency seems to provide a window into the difficulty of maintaining a First Amendment stance in the face of some kinds of political and social currents (I’ll plead guilty myself; I’m surprised to see it in–let’s say– stronger personalities).

    1. Because he argues that it isn’t expression. (This is not about EV bending to “political and social currents,” because he did support the photographer in Elane Photography.)

      1. Yes, that’s my view. I will say that, as a personal matter, I don’t think the law should compel bakers in such situations. If a baker didn’t want to make the wedding cake for my wedding because I was a Jew marrying a non-Jew, I’d be happy to say “OK, I’ll just ask someone else,” and I’d be fine if the law left that as my only remedy. But, as Dale and I argued in our brief, http://www.scotusblog.com/wp-c….._fund.pdf, the refusal involved in that case just wasn’t protected by the First Amendment (though a wedding photographer’s refusal to create photographs would be). Not everything that’s wrong is unconstitutional.

        1. It’s interesting that Eugene is engaging in this digressive discussion, even though it’s “perhaps not relevant here.” Eugene has made it clear that he intends to depart from Reason’s long-standing policy of radical tolerance in the matter of comments, and to remove ones that he considers “off-topic.” He removed several of mine that mentioned America’s leading criminal “satire” case, People v. Golb, in which the New York Court of Appeals declared that state’s aggravated harassment statute unconstitutional because it criminalized “annoying” speech.

          (See the documentation at: https://raphaelgolbtrial.wordpress.com/.)

          Eugene, of course, doesn’t include People v. Golb in his list of “recent” decisions holding harassment statutes unconstitutional. I seem to recall that he feels Golb is “not really a harassment case,” which is why he originally failed to say anything about those charges even though they were so obviously unconstitutional. Others disagree with him: Scott Greenfield argues that the harassment charges “wreaked prejudicial havoc” at the trial, and Professor Hayes argues not only that the “impersonation” (=criminally deadpan parody) charges criminalized constitutionally protected speech, but that since the purpose of those charges was to show the jury how the alleged “harassment” was carried out, those convictions should have been vacated along with the harassment ones.

          1. P.s. both Greenfield and Hayes must be wrong, of course. As well as Professor Tzvee Zahavy, who also foolishly referred to the emails criminalized in Golb as satire. Why else would Eugene casually ignore all of these commentators, even though they contradict his position? As Eugene has explained, only “clear” or obvious parody is entitled to constitutional protection. Be careful to explicitly label your email parodies “satire,” because otherwise you can be arrested and jailed. If you’re not willing to attach that label, it’s recommended that you avoid this type of speech altogether, because even if you intended to write a “parody,” it might easily be mistaken for a crime.

          2. Eugene has never deleted my off-topic comments. I think you’re imagining things.

            1. See his own explicit admission at:


              Eugene Volokh|12.16.17 @ 11:50AM|#

              “I did delete Quixote’s comments…. the comments were … off-topic….”

              I must say this is the first time in around five years of commenting on the Reason website that anyone has censored my comments. Very interesting new policy from an academic widely regarded as a major conservative spokesperson on First Amendment issues.

              1. I must say this is the first time in around five years of commenting on the Reason website that anyone has censored my comments.

                Hopefully it won’t be the last.

            2. One off-topic comment — meh. Off-topic comment again and again, beating the same drum — spam, which I do indeed delete. (No, I don’t think the government should criminalize speech because it’s repetitive, off-topic, or both; yes, I think I should be free to delete it from my posts.)

              1. Eugene is of course “free” to delete any speech he doesn’t approve of on his blog, in the sense that it’s perfectly legal for him to do so. That doesn’t change the fact that it’s a complete, radical departure from the longstanding policy here at Reason. Or that it’s contrary to the spirit of free and open discussion (let alone of First Amendment issues). The “drum-beat” that Eugene complains of is one he doesn’t like, and “topic” is subject to interpretation. Has he been sanitizing the Conspiracy of other comments he doesn’t like as well?

        2. Where does the Constitution grant Congress power to compel people to engage in commerce or to impose anti-discrimination laws upon them? There are other Constitutional arguments to be made in favor of the baker besides free speech.

          1. Recall that the Masterpiece Cakeshop case involves a state law, not a federal law. The Constitution creates a federal government of enumerated powers, so that every federal statute should have some constitutional foundation (and then we can debate what the scope of the Commerce Clause ought to be).

            But the Constitution recognizes the preexisting state governments, which have plenary powers: They can regulate anything they want, subject only to the constraints imposed by federal law and by particular state-constraining provisions of the federal Constitution (such as the Fourteenth Amendment, which among other things applies most of the Bill of Rights to the state). So the only federal constitutional question in Masterpiece Cakeshop is whether the First Amendment constrains state antidiscrimination law. There doesn’t have to be an express grant of Congressional power supporting the state law.

            1. Thanks, I didn’t realize it involved a state law.

              1. As a new Conspiracy reader, I’m disappointed in this stance. You’re claiming the Constitution
                does not protect freedom of association?

                Keep taking that stance, and you’re definitely going to need to delete comments around here.

          2. Prof. Volokh’s response is (obviously) right, but in any case those other federal constitutional issues were made, and rejected, fifty years ago. And the Court isn’t going to revisit them.

            If you’d like to have that happen, you’re going to have to elect an LP president, at least 50 LP senators, and hope that at least five SCOTUS justices time their retirements appropriately.

            1. I’m sure a similar argument (excuse) was made for slavery in the mid 1800s.

        3. I understand that, and I apologize if my first post made assumptions about your motives.

          To clarify my view of the parallels between the cases — the harassment case was a situation in which the state attempted to impose criminal penalties on speech that was certainly, intentionally annoying and — in ordinary parlance — harassing. However, it was ruled to be protected from criminal prosecution because it did not meet a threshold (e.g., a “true threat”) that would overcome free speech protections.

          The relevant issue, from my perspective, is the degree of harm attending speech or expression. The baker, Phillips, refused to create a cake to celebrate the union of the gay couple, Craig and Mullins. For this the state of Colorado punished Phillips by forbidding him from selling any wedding cakes and requiring him to actively engage in speech against himself as part of “training” of his remaining staff.

          But what was the level of harm? That’s a crucial point. I do not see it extending beyond the annoyance or chagrin of Craig and Mullins in the confines of the bakery. Certainly Phillips did not make any public proclamation or harass or threaten the couple. In no way were they more than marginally inconvenienced. Now this was not direct speech or expression, but the avoidance of speech or expression, but the free speech principles should, in my view, be the same. To hold otherwise is to threaten very basic free speech rights.

          1. I reprise my theoretical professional wedding singer who refuses to sing love songs to same-sex couples for fundamentalist religious reasons. Clearly, the actual lyrics are the source of the singer’s reluctance and lyrics are words and words are a rather inescapable element of free speech.

            Further, there is the factor of the power of the state COMPELLING someone to sing a certain message in a specific context that highly offends the vocalist. Of course, our present state authorities compel people to “sing” words that they choke on all the time—this is called plea bargaining, aka forced confessions which the state often obtains by blatantly lying to the defendant about the kind and seriousness of the evidence against them.

            Someone posted on a thread here that FBI agents can blatantly lie to you all day long, but you get caught allegedly misrepresenting anything to them and pack your toothbrush for prison!

  3. But is speech ‘speech’ after the first utterance? The first time, it’s a communication to its audience; after that, it’s an action upon the audience that conveys no new meaning.

    1. Really? So the government can’t ban (say) antiwar ads the first time they come out, but can ban them if they — or ads similar to them — rerun the next day?

      1. If there’s a possibility of reaching a new audience, then the speech remains speech when repeated. But what if your audience is Smith, and Smith only, and Smith has already heard it? Doesn’t determined repetition then amount to an annoying action, and no more?

        1. There’s a certain sympathy for this position.

          Person 1: “I can’t believe that got mad at me for suggesting that you wear a sweater.”

          Person 2: “I got mad at you for suggesting that I wear a sweater thirty times after I said that I don’t want to wear a sweater.”

          Person 1: “See, you got mad at me for suggesting that you wear a sweater.”

          But it’s still speech.

        2. The court doesn’t seem to buy into this, but i think that if you’re speaking to Smith every day in a public place, you should be allowed to do so, even if he has asked you repeatedly not to. At the least, your conduct shouldn’t be criminalized so long as no threats are involved.

    2. Let’s test it:

      1. “Police abuse is bad.” Protected speech.
      2. “I don’t think you heard me. Police abuse is bad.” “We heard you, we’re just ignoring you. Therefore the second chant is unprotected speech and we’re going to arrest you for it.”

      So, no, speech does not become non-speech after the first utterance.

      1. I should also be allowed to wear my sign warning that the end is coning on the same street corner every day if I want to.

  4. You wrote “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 about a person rather than specifically to the person”

    But I think you got #2 backwards.

    1. Yes, sorry, just corrected it: I had originally written the sentence as focused on speech being protected when X and Y, rather than on the speech remaining protected unless ~X or ~Y; but when I edited it, I failed to edit the second part. My apologies, and thanks for pointing this out.

    2. I hope you are correct and that the exception is repeated speech to the person rather than specifically about the person.

  5. Paragraph 4, clause (2) – Do you have that reversed? Should it be “must remain protected unless it … is said to a person rather than about the person”?

    Re: the Solomon opinion – he might have a good name but he doesn’t have a good opinion for a judge. Arguing that mere speech should be punishable because it could “inspire mockery and potential disobedience” or “that [his] authority was going to be undermined” is a quick path to a police state. By that logic (which has no limiting principle), no one could ever say anything disparaging about anyone in authority – suppression of the very speech that the First Amendment is most directly supposed to protect. The “tort of disclosure of private facts” is slightly more defensible but only if the Legislature makes such a rule explicitly. Reading that interpretation into the existing law is an inappropriate stretch.

    1. I agree with your comments. I will say, however, that the concern over undermining authority arguably should be given some weight in the context of a jail setting. The other problem with the dissent is that it stretches the facts to the breaking point to find that Burkert intended, through his flyers, to place Halton in fear for his safety from the inmates. Second, the dissent’s privacy argument makes no sense. The statute was construed, correctly, by the majority to protect privacy in the physical sense — that is, to protect your personal space or your home. There is no right of privacy that allows you to suppress embarrassing facts about yourself that, as here, were already in the public domain.

  6. Is too.
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  7. It occurs to me that, a construed by the prosecution, the statute would criminalize almost all speech between siblings under the age of 12 or so.

    1. It would also criminalize most ribbing at sport events between fans of opposing teams.

  8. “Justice Solomon (good name for a judge)”

    Just don’t let him near family court with any sharp objects. 🙂

  9. 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”

    No, they are not interchangeable. Annoyance is a state of mind, for instance as a result of being subjected to attacks. To harass is to make attacks, repeatedly. The difference that matters for this case is the difference between thought and conduct. What that might mean with regard to 1A law I don’t attempt to say, but they are not the same.

  10. Just realized my comment above affords an opportunity to kill two birds at once, with an illustration. As a newcomer, I am annoyed by the nearly unreadable highly saturated orange type which appears here, but I am not at all harassed by it.

    I do suggest that whatever design purpose led to the choice of orange could be better served by switching to, for instance, dark red. For what it is worth, the dark blue is nicely readable, but perhaps also ought to be changed, given the widespread custom of using blue type to signal clickable links.

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