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Free Speech

"[W]ell, People Really Be Tellin', People Be Tellin'. That Is Not Right, That Is Not Right."

A Snapchat post containing this line and "a copy of the police report summarizing [a witness's] identification of [a person] as the shooter" leads to a four-year prison sentence for witness tampering; a New Jersey court says the post is a constitutionally unprotected true threat of violence.


From State v. Dutton, decided Wednesday by the New Jersey appellate court, Judges Stephanie Ann Mitterhoff and Carmen Alvarez:

Defendant Shahouna Dutton appeals from an October 15, 2019 judgment of conviction sentencing her to four years for witness tampering. We affirm, substantially for the reasons articulated by Judge John A. Young in his thoughtful and well-reasoned opinion.

We discern the following facts from the record. On March 29, 2017, Terrell Smith was shot and killed in Jersey City. During the ensuing investigation, Hudson County Prosecutor's Office (HCPO) detectives spoke to Aladine Hicks, a witness to the shooting, who initially denied knowing the identity of the shooter. In a subsequent statement, however, Hicks identified Shaquan Hyppolite as the shooter. Hicks explained that he did not identify Hyppolite earlier because he feared for his safety. Approximately two-and-a-half weeks before Smith's murder, Hicks had been jumped by some of Hyppolite's associates. After giving his statements to the police, Hicks relocated out of state.

On June 20, 2017, Hyppolite was arrested and charged with Smith's murder. Hyppolite was ultimately indicted for murder and weapons offenses.

In July 2017, a police report outlining Hicks's statement to police was turned over to Hyppolite as part of pretrial discovery. The trial, originally scheduled to begin on February 28, 2018, was adjourned because Hicks refused to testify. Hicks allegedly refused to testify because, in August 2017, defendant posted a Snapchat video of an unknown person holding a copy of the police report summarizing Hicks's identification of Hyppolite as the shooter. A female voice in the background said "[w]ell, people really be tellin', people be tellin'. That is not right, that is not right." …

Hicks was associated with people that defendant's friends thought were responsible for the death of Wilson and believed the attack on him was retaliation for Wilson's death. After defendant posted the Snapchat video, Hicks's mother told HCPO detectives that she was fearful for her safety and that of her son….

"The Supreme Court … has recognized 'a few limited' categories of speech which may be restricted based on their content, including defamation, obscenity, 'fighting words,' incitement to imminent lawless action, and … true threats." Additionally, this court has previously recognized that New Jersey's witness tampering statue is constitutional because an "important governmental interest" exists in "preventing intimidation of, and interference with, potential witnesses or informers in criminal matters."

"A 'true threat' includes 'statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.'" "The First Amendment does not cover true threats so as 'to protect[ ] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.'" "By contrast, mere hyperbole, even 'vehement, caustic, … unpleasantly sharp attacks' and 'vituperative, abusive, and inexact' speech, are protected."

"Alleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." "Contextual factors include the language itself, and whether it is stated conditionally." … We are satisfied that Judge Young properly determined that defendant's Snapchat post was not protected speech ….

For more on the defendant, who is apparently known as "Oopie from Bullet Town," see here.