Justices Hear Arguments in Offensive Flyer Flap

A state prosecutor asked the New Jersey Supreme Court to reinstate the criminal conviction of a corrections officer who added offensive comments to a co-worker's wedding photos and posted them as flyers.

A state appeals court ruled last year that while defendant William Burkert's actions were "unprofessional, puerile and inappropriate," he did not violate the law, and it overturned his conviction on two counts of harassment.

At arguments before the state's high court Monday, Deputy Attorney General Sarah Lichter said this case did not involve speech protected by the First Amendment.

"The [harassment] statute was never meant to regulate speech," she said. "The appeals court misapplied First Amendment jurisprudence.

"His motivation and conduct were key," she said.

One of Burkert's attorneys, Steven Kaflowitz, said there was no threatening behavior in this case to uphold harassment convictions.

"If I don't threaten you … I have First Amendment" protections, said Kaflowitz, of Caruso Smith Picini in Fairfield.

"I do accept the notion that the harassment statute was meant to protect against invasions of privacy," Kaflowitz acknowledged. "But the purpose here was to humiliate. But saying, 'I'm going to punch you in the face' is not the same as punching in the face.

"You have a First Amendment right to embarrass someone, and to do it twice," he said.

Justice Barry Albin asked: "Isn't this type of flyer pretty outrageous?"

Kaflowitz disagreed. "It's ordinary schoolyard speech," he said.

Judge Marie Lihotz wrote for the Appellate Division last year that upholding Burkert's convictions, which were petty disorderly offenses, "would curb speech ranging from a person submitting a Facebook post excoriating an ex-lover for cheating, to the creation of offensive political flyers criticizing a city council member."

Burkert was charged with creating two flyers containing photos of a fellow Union County corrections officer that were altered to include "vulgar handwritten comments" in speech bubbles, Lihotz said. But the evidence failed to prove that he engaged in harassing conduct directed at his colleague, she said. The commentary Burkert added to the photos was constitutionally protected speech, Lihotz said.

According to the opinion, the two had worked together for 20 years and had developed tension and animosity over that time, in part because they were members of different unions. Burkert's co-worker testified that he became distraught and embarrassed, and feared for his safety after seeing the photos, because he believed his authority with inmates was undermined. He left work and never returned, Lihotz said.

Burkert argued that there was no evidence to prove beyond a reasonable doubt that he distributed the flyers or intended to harass his co-worker. He also said the comments were protected speech.

"Defendant's uncouth annotations to the sergeant's wedding photograph that was generally circulated amounts to a constitutionally protected expression, despite its boorish content, which bothered or embarrassed the sergeant," Lihotz wrote last year.

Another of Burkert's attorneys, Timothy Smith, also of Caruso Smith, said at the time that the case "charts a new direction in New Jersey for prosecutions for harassment."

The harassment statute "must be interpreted so that words must do more than purposely offend, cause indignation or embarrassment before they lose the protection of the First Amendment," Smith said at the time of the appeals court ruling. source http://www.njlawjournal.com/id=1202797786033/Justices-Hear-Arguments-in-Offensive-Flyer-Flap?mcode=0&curindex=0&curpage=ALL