State v. Burkert
174 A.3d 987
N.J.2017Background
- Corrections officers William Burkert and Gerald Halton had a workplace dispute after Burkert found online posts by Halton’s wife insulting Burkert and his family.
- Burkert copied the Haltons’ wedding photo, added vulgar speech bubbles, produced flyers, and some copies were found in the jail employee garage and locker room.
- Halton filed three municipal harassment complaints under N.J.S.A. 2C:33-4(c); Burkert admitted making the flyers but denied distributing them; he received workplace discipline and retired.
- Municipal Court convicted Burkert for January 8 and 11 incidents; Law Division affirmed after de novo trial; Appellate Division reversed on First Amendment grounds.
- The New Jersey Supreme Court considered whether subsection (c) of the harassment statute criminalizes protected speech and how to construe it to avoid constitutional problems.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.J.S.A. 2C:33-4(c) permissibly criminalizes Burkert’s flyers | State: statute targets conduct, not speech; purpose-to-annoy element shows Legislature intended to cover intentionally abusive speech | Burkert: speech (even crude) is protected; causing annoyance alone cannot be criminalized | Statute must be narrowly construed for pure expressive activity: applies only to repeated communications that reasonably put a person in fear for safety/security or intolerably invade privacy |
| Whether the statute is unconstitutionally vague/overbroad as applied to speech | State: statute has mens rea (purpose to harass) limiting prosecutions | Burkert & amici: terms like “annoy” and “alarming” are too vague and chill protected speech | Court: subsection (c) as written is overly broad for pure speech; requires limiting construction to avoid vagueness and chilling effect |
| Whether Burkert’s conduct amounted to a “course of alarming conduct” or “repeatedly committed acts” | State: making and distributing flyers—admitted by Burkert—showed intent to harass and was alternative to a physical assault | Burkert: flyers were expressive, directed to workplace audience; not threats, not repeated unwanted communications to Halton | Court: record did not show repeated unwanted communications or reasonable fear for safety or intolerable privacy invasion; convictions cannot stand |
| Proper remedy and scope of the statutory construction | State: uphold convictions; distinguish conduct from protected speech | Burkert/ACLU: construe statute to exclude insulting/annoying pure speech; preserve civil/employment remedies | Court: adopt narrow construction for pure speech cases (repeated communications that cause reasonable fear or intolerable privacy intrusion); affirmed Appellate Division dismissal |
Key Cases Cited
- Winters v. New York, 333 U.S. 507 (establishes certainty requirement for criminal statutes affecting speech)
- Gooding v. Wilson, 405 U.S. 518 (struck down vague statute penalizing abusive language)
- Cohen v. California, 403 U.S. 15 (protects offensive expression; rejects censorship for mere offensiveness)
- Frisby v. Schultz, 487 U.S. 474 (recognizes protection of residential privacy against unwanted speech)
- Reno v. ACLU, 521 U.S. 844 (overbreadth and chilling effects of vague speech restrictions)
- Cesare v. Cesare, 154 N.J. 394 (construed subsection (a) to reach only communications that invade privacy or threaten safety)
- State v. Hoffman, 149 N.J. 564 (explains subsection (c) targets conduct not covered by subsection (a))
- State v. Mortimer, 135 N.J. 517 (overbreadth doctrine and limiting constructions)