Harassment and the First Amendment: Part 5

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.

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).

It will be interesting to see if the New Jersey Attorney General’s Office appeals this ruling to the United States Supreme Court. Appellate Courts are generally not inclined to substitute their judgment for that of the fact-finder. However, that is what occurred here. A creative appellate attorney would likely be able to come up with several scenarios wherein “an indulgent view of the record would support a harassment conviction.” Alternatively, they could argue that the prosecutors below did not have an opportunity to present a case consistent with the New Jersey Supreme Court’s new rule in the instant case.

The judgment of the Appellate Division is affirmed. Justice Solomon dissented in part. He, along with Justice Fernandez-Vina, has established a reputation for being pro-police and prosecution. Justice Solomon agrees with the majority’s conclusion that N.J.S.A. 2C:33-4(c) required clarification because subsection (c)’s language is impermissibly vague. However, even under the majority’s clarification of the statutory requirements for subsection (c), Justice Solomon finds that defendant Burkert’s conduct violates the harassment statute.