and created a clear standard for courts to use in the future in deter-
mining when offensive language is permissive expressive speech and
when it is criminal harassment. The court reiterated the long-stand-
ing principle that the First Amendment protects speech even if it is
obnoxious and objectionable to others. More specifically, the court
stated that this harassment statute was too broadly worded and gave
prosecuting authorities undue discretion to bring criminal charges
related to permissive expressive activities. In other words, the statute,
as interpreted by the trial court, had the capacity to “chill” and crimi-
nalize permissible speech.
The court reasoned that the only way to avoid a finding that the
statute is unconstitutional is by interpreting the phrases “alarming
conduct” and “acts with purpose to alarm or seriously annoy” as “re-
peated 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.” Otherwise, such
conduct – while annoying or even upsetting – constitutes permissive
expressive activity. The court thus concluded that, viewed against this
standard, the officer’s altered photographs and language did not rise
to the level of criminal harassment. Accordingly, the Supreme Court
affirmed the Appellate Division’s decision and dismissed the charges.
However, this decision should not be taken to provide a license to
use such language in the workplace. Employees, including law en-
forcement officers, must be mindful that this case only addressed
whether workplace conduct or language can be deemed to be a crim-
inal act. Speech – even though protected by the First Amendment –
may still result in disciplinary action. As in the case discussed here,
although the officer ultimately avoided any criminal penalty, he was
suspended by his employer for his conduct. It is important to remem-
ber that in the highly regulated area of law enforcement, conduct that
is not criminal may still result in discipline up to, and including, ter-
mination. d
www.njcopsmagazine.com
■ FEBRUARY 2018 15