New Jersey Supreme Court Clarifies Vague Criminal Harassment Statute in Recent Decision

Basic Facts of the Case: In State v. Burkert, a Union County, NJ corrections officer named William Burkert was convicted of two counts of harassment after making and posting flyers about his fellow corrections officer and coworker, Gerald Halton. The flyers contained modified wedding photos of Halton and his wife and also included vulgar statements about Halton. After Halton saw the flyers, he claimed he feared for his safety and his ability to command authority among the inmates he was in charge of. Halton then left his job as a correction offer.

Decision of the lower municipal court: In the lower municipal court, Burkert was convicted of two counts of harassment. Burkert appealed the decision, arguing that his behavior didn’t constitute harassing conduct and also that the First Amendment protected his freedom to write the comments on the flyers he made.

Decision of the panel of the Appellate Division: 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.”[1]

Decision of the New Jersey Supreme Court: The New Jersey Supreme court affirmed the decision of the Appellate Division, explaining in their opinion that although Burkert’s behavior was unprofessional and inappropriate, it was still protected as free speech. Justice Albin, writing for the New Jersey Supreme Court said, “The free-speech guarantees of our Federal and State Constitutions safeguard not only polite and decorous conversation and debate but also speech that we hate – speech that is crude, obnoxious, and boorish. A commitment to free discourse requires that we tolerate communication of which we strongly disapprove.”[2]

Why was this case so important? This case was important because it compelled the New Jersey Supreme Court to acknowledge the vagueness in New Jersey’s current harassment statute (although the court declined to take it a step further and declare the statute unconstitutionally vague). The New Jersey harassment statute N.J.S.A. 2C:33-4(c), states that “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.”[3]

Justice Albin said that,” The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech. “[4]

The 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.”[5]

The court found that Burkert’s actions didn’t rise to the level “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.” Accordingly, Burkert was not guilty of harassment.[6]

The experienced criminal defense lawyers at the Law Office of Eric M. Mark have handled numerous harassment charges in Jersey City and Newark, NJ as well as other locales within the state. By staying abreast of current, precedential case law such as State vs. Burkert, our seasoned attorneys know the newly established standards for harassment in New Jersey. Since knowledge is power, our attorneys can use their nuanced knowledge of the law to argue for the dismissal of a client’s harassment charges when the client’s alleged behavior does not rise to New Jersey’s newly established standards for harassment

If you have been charged with harassment in New Jersey, our attorneys will advocate tirelessly on your behalf to help you avoid a conviction, penalties, and the adverse effects a criminal record can have on your life. While we cannot guarantee the outcome of your case, we can help tailor a defense strategy to help you pursue the best possible outcome.

To schedule your free consultation with an experienced criminal defense lawyer at the Law Firm of Eric M. Mark, contact us online at the Law Office of Eric M. Mark or call (973) 453-2009.

[1] http://www.njcourts.gov/attorneys/assets/opinions/supreme/a_6_16.pdf

[2] http://www.njcourts.gov/attorneys/assets/opinions/supreme/a_6_16.pdf

[3]http://lis.njleg.state.nj.us/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048/Enu

[4] http://www.njcourts.gov/attorneys/assets/opinions/supreme/a_6_16.pdf

[5] http://www.njcourts.gov/attorneys/assets/opinions/supreme/a_6_16.pdf

[6] http://www.njcourts.gov/attorneys/assets/opinions/supreme/a_6_16.pdf