The Volokh Conspiracy
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From J.F. v. D.F., decided Oct. 22 by Justice Richard A. Dollinger of the Monroe County (N.Y.) trial court:
The parties were divorced in November 2013, and, pursuant to the Judgment of divorce and separation agreement, shared joint custody and equal residency of their three children, ages 19, 17 and 11…. [Their] latest dispute has its roots in the COVID pandemic, with Father initially filing an application in October 2020 alleging that Plaintiff Mother was not following State mandated COVID protocols with respect to the children. Further applications have followed, with the Mother's initial cross-motion, filed in November 2020, containing a request for an Order of Protection.
That request is supported by the Mother's affidavit, pointing primarily to emails sent by the father, many of which accuse her of violating COVID protocols regarding out of state travel and quarantine. Her Affidavit contains upwards of 50 pages of email exchanges between the couple, which the Mother contends demonstrate harassment sufficient to support an order of protection. Father has now moved to dismiss this application, insofar as it seeks an order of protection….
While [Domestic Relations Law § 240] does not, on its face, limit the court's ability to issue orders of protection to situations where a family offense is pled and proven, the Appellate Division has specifically grafted that limitation onto the statute…. "… [T]he party seeking an order of protection bears the burden of establishing—'by a fair preponderance of the evidence'—that the offending party committed one of certain enumerated family offenses."
Anticipating the need to prove a qualifying family offense, Mother argues that her petition contains sufficient allegations of conduct amounting to the qualifying offense of harassment in the second degree[, which makes it a crime,] … "with intent to harass, annoy or alarm another person … [to] engage in a course of conduct or repeatedly commit acts which alarm or seriously annoy such other person and which serve no legitimate purpose."
The Mother points to a long series of emails from Father concerning necessary quarantine measures and other proscriptions and requirements with respect to COVID 19. In particular, the Father sent numerous emails to Mother saying that she was required to quarantine following a trip to Illinois, after that State was added to the restricted state list then in effect. Mother contends—and it appears beyond dispute—that father's information was largely, if not entirely, incorrect. Nevertheless, he persisted in maintaining that she and the children needed to quarantine, and apparently reported them to health department authorities. He also demanded make-up time with the children after their (unnecessary) quarantine period.
There is no doubt in this Court's mind that the Father's persistent—again, there are upwards of 50 pages worth of texts back and forth—insistence that Mother needed to take COVID precautions which, in fact, were not necessary would "seriously annoy" almost anyone. And, inasmuch as this is a motion to dismiss, and the Court must draw every reasonable inference in favor of the Mother as the non-moving party, the Court accepts that it may even have been the Father's intent, at least at some point, to "harass" or "annoy" the Mother.
However, because of the Constitutional protection afforded by the First Amendment, speech can not be punished simply because it causes annoyance. A "conversation may well be 'abusive' and intended to 'annoy'; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" (People v Dietze (N.Y. 1989)). In Dietze, the Court declared a prior version of the harassment statute, which forbade "abusive" speech intended to "annoy," unconstitutional as substantially overbroad. Similarly, in People v Golb (N.Y. 2014), the Court of Appeals struck down as vague and overbroad the section of the aggravated harassment statute that provided that a person was guilty when "with intent to harass, annoy, threaten or alarm another person, he or she … communicates with a person … in a manner likely to cause annoyance or alarm." As with the statute at issue in Dietze, this section impermissibly "criminalize[d], in broad strokes, any communication that has the intent to annoy," which is impermissible.
The current version of the statute has withstood overbreadth challenges, in part because it is aimed at conduct, not simply speech, and because, to the extent that speech is proscribed, it "prohibits only speech that lacks a 'legitimate purpose.'" That "no legitimate purpose" language must be read to incorporate the Constitutional limitations on prohibiting speech—i.e. only "words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace" may be proscribed.
Read under that prism, there is simply no way to conclude that the Father's texts were sent with "no legitimate purpose." Even assuming they were misguided and in some cases, flat out wrong, they were aimed at a legitimate subject of debate—the appropriate measures of COVID prevention protocols, something any parent certainly has a "legitimate" interest in. There are no "'threats [ ]or intimidating or coercive utterances'" in these emails that would place them "outside the pale of the First Amendment." Nor can it be said that only Father's conduct in sending the texts, rather than the substance of the texts themselves, is at issue, inasmuch as the substance of the emails—i.e. their veracity, or more to the point, inaccuracy—makes up a large portion of the Mother's argument….