The three-judge panel continued: “The Legislature framed the New Jersey Code of Criminal Justice with a conscious deference to the right of free expression.” There are certain limited categories of speech, however, that are criminalized. These include: “speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct.” United States v. Alvarez, 567 U.S. 709, 717 (2012). With respect to speech “integral to criminal conduct,” the “immunity” of the First Amendment will not extend to “a single and integrated course of conduct” that violates a valid criminal statute. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). 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. Freedom of speech does not encompass a right to abuse or annoy another person intentionally.”
Defendant’s videos were not protected speech under the First Amendment or the New Jersey Constitution. See United States v. Sayer, 748 F.3d 425, 429, 433-34 (1st Cir. 2014) (where defendant posted unauthorized advertisements, created false Facebook accounts using Jane Doe’s name, and posted sexually explicit pictures and videos of her, the court found that this was considered speech integral to the criminal conduct of harassment); see also United States v. Petrovic, 701 F.3d 849, 855 (8th Cir. 2012) (where defendant distributed Jane Doe’s confidential information, posted screen shots of private conversations, and put her contact information and her children’s social security numbers online, defendant’s communications were considered “integral to his criminal conduct of extortion” as they were the means of carrying out his threats.
Whether freedom of speech encompasses a right to intentionally annoy another person is debatable. A basic principal of first amendment jurisprudence is that the first amendment exists to protect offensive or annoying expression. That is the only kind of expression that anyone attempts to prevent.
