New Jersey Law Revision Commission has examined the current harassment statute. This project began in response to the landmark NJ Supreme case of State v. Burkert.
1 The issue in Burkert was whether the creation of lewd flyers that seriously annoyed the subject they portrayed was constitutionally protected free speech, or criminal harassment under N.J.S. 2C:33-4(c).
2 That statutory section provides 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 The Supreme Court in Burkert considered the context of the phrases in issue,
4 and explained that the Court “must construe a statute that criminalizes expressive activity narrowly to avoid any conflict with the constitutional right to free speech.”
5 The Court also referred to the Model Penal Code (MPC) and examined the manner in which courts in other jurisdictions had addressed similar statutes to determine the level of precision required.
6 1 State v. Burkert, 231 N.J. 257 (2017). 2 Id. at 271. 3 N.J.S. 2C:33–4(c). 4 Id. at 271 (“[W]e do not read [statutory words] in a vacuum, but rather ‘in context with related provisions so as to give sense to the legislation as a whole.’ ” (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).); See also State v. Crawley, 187 N.J. 440, 452 (2006). 5 Burkert, 231 N.J. at 277. 6 Id. at 278.
Analysis
The Burkert Court found that “the vaguely and broadly worded standard in N.J.S. 2C:33–4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes”
7 and that its vagueness created undue discretion for “prosecuting authorities … to bring charges related to permissive expressive activities.”
8 Though N.J.S. 2C:33–4(c) allows “conviction of a person who acts with the purpose to ‘seriously annoy’ another person, under the corresponding MPC provision a conviction may be premised only on ‘alarming conduct.’ Unlike its MPC counterpart, N.J.S.A. 2C:33–4(c) is not restricted to conduct that serves ‘no legitimate purpose of the actor.’”
9 Speech cannot, however, be made criminal “merely because it annoys, disturbs, or arouses contempt.”
10 Unlike other jurisdictions that “struck down overly broad and vague harassment statutes,”
11 the Burkert Court attempted to “conform subsection (c) of N.J.S.A. 2C:33–4 ‘to the Constitution in a way that the Legislature would have intended.’”
12 Finding the legislative intent was to “address harassment by action rather than communication,”
13 the Court attempted to construe the statute as constitutional by “[narrowly reading the terms alarm and annoy.”
14 7 Id. at 280. 8 Id.; See also id. noting “[t]he circularity of the language of N.J.S.A. 2C:33–4, moreover, does not place limits on the statute.”
9 Id. at 280; citing N.J.S.A. 2C:33–4(c).
10 Id. at 281; See Houston v. Hill, 482 U.S. 451, 461 (1987) (stating that speech cannot be punished unless it is “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest” (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)); cf. Snyder v. Phelps, 562 U.S. 443, 458 (2011); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”). 11 Burkert, 231 N.J. at 284. 12 Id., citing State v. Natale, 184 N.J. 458, 485–86 (2005). 13 Id. at 284. See MPC § 250.4 cmt. 6.14 Burkert, 231 N.J. at 285.
See Cesare v. Cesare, 154 N.J. 394, 404 (stating that “provision in N.J.S.A. 2C:33–4(a) prohibiting conduct communicated in any manner likely to cause annoyance or alarm encompasses, for constitutional reasons, only those modes of communicative harassment that ‘are also invasive of the recipient’s privacy’ ” (quoting State v. Hoffman, 149 N.J. 564, 583 (1997)).
