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New Jersey Supreme Court Interprets Criminal Harassment Statute to Avoid First Amendment Problem

by Christopher Zoukis

In a case involving a dispute between two prison guards, the Supreme Court of New Jersey clarified the kind of conduct necessary to expose an individual to criminal liability for verbally harassing someone else in the state.

William Burkert and Gerald Halton, both prison guards and members of competing unions, became involved in a war of insults during contract negotiations. Burkert was a sergeant and the vice president of the Fraternal Order of Police, while Halton was a prison guard and the treasurer of the Policemen’s Benevolent Association.

Halton’s wife posted comments online in which she referred to Burkert as “fat,” and described one of his brothers as “quirky” and “kind of retarded.” Burkert retaliated by distributing flyers with pictures from the Haltons’ wedding over which he superimposed some highly inflammatory comments about the small size of Halton’s genitalia, as compared to the prisoners he supervised. Halton was so humiliated by the flyers, which were seen by multiple co-workers, that he went home and never returned to work.

In an illustration of the Alice in Wonderland nature of municipal law in New Jersey, Halton himself was able to charge Burkert with violation of New Jersey law, and his personal attorney prosecuted the case. The charge was violation of N.J.S.A. 2C: 33-4(c), which provides that “a person commits a petty disorderly persons offense if, with purpose to harass another, he ... [e]ngages in any ... course of alarming conduct of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” Burkert was found guilty in municipal court and fined.

The New Jersey Supreme Court took up the case and dismissed the charges against Burkert. At the outset, the Court noted that even though no one objected, state law does not allow the kind of private prosecution brought by Halton and his attorney. More importantly, however, the Court found that Burkert’s actions amounted to protected speech. Even though the flyers were “wholly unprofessional and inappropriate for the workplace,” they did not amount to criminal harassment in light of free-speech guarantees.

“Criminal laws targeting speech that are not clearly drawn are anathema to the First Amendment and our state constitutional analogue because they give the government broad authority to prosecute protected expressive activities and do not give fair notice of what the law proscribes,” wrote the Court. “Such laws also chill permissible speech because people, fearful that their utterances may subject them to criminal prosecution, may not give voice to their thoughts.”

In the Court’s analysis, the statute as applied to Burkert was vague and unconstitutional. In order to avoid striking the language entirely, the Court construed it in a way that rendered it constitutional.

“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,” the Court instructed in announcing the governing standard for the statute.

In the case at hand, the Court determined that Burkert’s “intent to annoy” was not a crime and that he did not engage in the type of repetitive acts proscribed by the statute, as interpreted by the Court. “The language on the flyers, despite its vulgarity and meanness, is constitutionally protected from a criminal prosecution for harassment,” concluded the Court.

Accordingly, the Supreme Court affirmed the judgment of the Appellate Division, which dismissed the harassment charges. See: State v. Burkert, 174 A.3d 987 (N.J. 2017). 

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