Harassment and the First Amendment: Part 2

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.

A panel of the Appellate Division reversed Burkert’s conviction, concluding that “the commentary Burkert added to Halton’s wedding photograph was constitutionally protected speech. The panel accepted the argument that “the altered photograph . . . was not directed to [Halton],” but rather to an audience of possibly willing listeners—other corrections officers. The panel determined that the evidence did not support a finding that the flyers “were a direct attempt to alarm or seriously annoy” Halton or to invade his privacy rights. The panel also found that the vulgar commentary on the flyers did not constitute criminal harassment.

The New Jersey Supreme Court granted the State’s petition for certification. The Supreme Court held that 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 interfere with that person’s reasonable expectation of privacy.

This statute has been used as a catch-all criminal charge for many years. It is probably the most common predicate offense for restraining orders. It is probably the most common offense alleged by feuding neighbors in citizen complaints. While many of these cases might be subject to post-conviction attack, the time and cost involved in re-opening an old case will deter most people from pursuing post-conviction relief. Harassment is a disorderly persons offense. Disorderly persons convictions rarely lead to jail time and rarely create long-term employment issues.