Harassment and the First Amendment: Part 4

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.

The First Amendment has been a source of substantial litigation and confusion. It is an exceedingly complicated and ever-evolving area of legal practice. It is difficult to define a term like “obscenity” because what is obscene is inherently subjective. Moreover, people have great difficulty understanding that the First Amendment exists to protect offensive and immoral expression. Since almost no one is looking to prohibit uncontroversial expression, there is no point to protecting anything but controversial expression. A modern case in point involves the groups who shamefully put forth their homophobic agendas at fallen soldiers funeral while protected by the First Amendment.

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.