Not criminal harassment to publish rude flyers
State v. Burkert
(A-6-16)
This case tests the limits to which a broadly worded harassment
statute, N.J.S.A. 2C: 33-4(c), can criminalize speech.
William Burkert and Gerald Halton were corrections officers, who
held positions in different unions representing distinct classes of officers.
Their relationship became particularly strained after Burkert read online
comments attributed to Halton’s wife that Burkert felt insulted him and his family.
Angered by the insulting online comments, Burkert retaliated. Burkert
downloaded the Haltons’ wedding photograph. He then copied the photograph and
made two flyers, writing lewd dialogue in speech bubbles over the faces of the
bride and groom.
Burkert admitted that he had prepared the flyers but denied
circulating them. Burkert explained that he expressed himself through the
flyers rather than “get physical with the guy.”
The municipal court entered a guilty verdict against Burkert for
harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C: 33-4(c). The
court found that Burkert made and circulated the flyers in the garage and
locker room, that the bubble dialogue inscribed on the Haltons’ wedding
photograph was “lewd and obnoxious,” and that such language would “seriously
annoy any person, in this case Mr. Halton.” In a de novo trial before the Law
Division, the court found Burkert guilty beyond a reasonable doubt of
committing acts of harassment.
HELD: To ensure that N.J.S.A. 2C:33-4(c) does not
exceed its constitutional reach in cases involving the prosecution of pure
speech, repeated acts to “alarm” and “seriously annoy” must be read as
encompassing only repeated communications directed at a person that reasonably
put that person in fear for his safety or security or that intolerably
interferes with that person’s reasonable expectation of privacy.
1. N.J.S.A. 2C:33-4 distinguishes between “communications” and
“language” that violate the statute in subsection (a), and “conduct” and “acts”
that do so in subsection (c). Although a “course of alarming conduct” or
“repeatedly committed acts” can occur through communications and language
alone, it is far from clear that the Legislature had in mind offensive speech
as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A.
2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in
State v. Hoffman, 149 N.J. 564 (1997).
2. Criminal laws touching on speech must give fair notice of where
the line is set between what is permissible and proscribed and must be drawn
with appropriate definiteness. A court can invalidate a statute that is
substantially overbroad on its face if the statute reaches a substantial amount
of constitutionally protected conduct. Such a drastic remedy, however, is not
the only—and not even the preferred—approach. Provided that a statute is
reasonably susceptible to an interpretation that will render it constitutional,
courts must construe the statute to conform to the Constitution.
3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c)
does not put a reasonable person on sufficient notice of the kinds of speech
that the statute proscribes. The statute’s vagueness also gives prosecuting
authorities undue discretion to bring charges related to permissive expressive
activities. That, in turn, means that the statute—if not more narrowly
defined—has the capacity to chill permissible speech. Under N.J.S.A.
2C:33-4(c), a person who, with the purpose to seriously annoy another, does
seriously annoy another is guilty of harassment. Speech, however, cannot be
transformed into criminal conduct merely because it annoys, disturbs, or
arouses contempt. The First Amendment protects offensive discourse, hateful
ideas, and crude language because freedom of expression needs breathing room
and in the long run leads to a more enlightened society. Outside of the
category of obscenity, courts should not play the role of censor by engaging in
a weighing of an expression’s value or relative social costs and benefits.
Speech cannot be criminalized merely because others see no value in it.
Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our
State Constitution prohibits the State from criminalizing certain limited
categories of speech, such as speech that is integral to criminal conduct,
speech that physically threatens or terrorizes another, or speech that is
intended to incite imminent unlawful conduct. The First Amendment also does not
bar states from enacting laws that punish expressive activity when substantial
privacy interests are being invaded in an essentially intolerable manner.
4. N.J.S.A. 2C:33-4 provides: “[A] person commits a petty
disorderly persons offense if, with purpose to harass another, he: . . . (c)
Engages in any other course of alarming conduct or of repeatedly committed acts
with purpose to alarm or seriously annoy such other person.” In cases based on
pure expressive activity, the amorphous terms “alarming conduct” and “acts with
purpose to alarm or seriously annoy” must be defined in more concrete terms
consonant with the dictates of the free-speech clauses of our Federal and State
Constitutions. Narrowly reading the terms alarm and annoy will save the statute
from constitutional infirmity. Therefore, for constitutional reasons, the Court
will construe the terms “any other course of alarming conduct” and “acts with
purpose to alarm or seriously annoy” as repeated communications directed at a
person that reasonably put that person in fear for his safety or security or that
intolerably interfere with that person’s reasonable expectation of privacy.
That standard applies only in those cases where the alleged harassing conduct
is based on pure expressive activity.
5. The prosecution in this case targeted purely expressive activity
and therefore the Court applies the heightened standard of subsection (c) set
forth above. Neither the municipal court nor Law Division judge who sat in this
case had the benefit of the standard developed in this opinion. They applied
the statute as written. Although in other circumstances a remand might be
appropriate, the Court sees no point here because even the most indulgent view
of the record favoring the State would not support a harassment conviction
under N.J.S.A. 2C: 33-4(c).
