NJ Case Illustrates Fine Line Between Harassment and Protected Speech
A New Jersey Appeals court recently ruled that speech taken by one person to be harassing and menacing was actually constitutionally protected. The case arose from a personal feud between two New Jersey corrections officers that escalated to the point where one officer created derogatory fliers that were distributed in the garage and the locker room the officers shared. That act prompted the sergeant to feel distraught, embarrassed and fearful, and led him to retire.
The fliers consisted of the sergeant’s wedding photo on which derogatory, even pornographic, comments had been handwritten in speech balloons. The trial court found that the fliers were intended as payback for insulting internet postings the sergeant had made about the officer.
The Appeals Court noted that “United States Supreme Court precedent repeatedly holds expressions remain protected even where the content hurts feelings, causes offense, or evokes resentment.” The court held that “Defendant’s comments were unprofessional, puerile, and inappropriate for the workplace. Our opinion does not address whether the nature of defendant’s written comments, which were posted in his workplace, may subject him to discipline by his employer. However, they do not amount to criminal harassment.”
The key to the case seems to be that, although the flier depicted the sergeant, its message was not directed at the sergeant, nor did it invade his privacy rights. Bothering or embarrassing someone is not enough; criminally harassing speech must present “a clear and present danger of some serious substantive evil.”