Saturday, August 2, 2014


This Summer, the Court of Appeals (New York's highest court) issued two huge First Amendment decisions.  First was People v Golb, 2014 N.Y. LEXIS 1093 (May 13, 2014), which found the aggravated harassment statute unconstitutional. This was important because, read literally, the aggravated harassment statute made it a crime (and a family offense for which an order of protection could be issued) to make a phone call that "annoyed" someone. The courts had read implied requirements into the statute for years, but it was still such an easy standard to meet that it had been the "go to" crime for OP's in custody and visitation cases.  Want your spouse out of the house?  Just claim they yelled at you over the phone (which, let's face it, we've all done), and frequently a temporary OP would get issued.  This horrible practice would get the unwanted husband or wife out of the house and temporarily create a court Order that was illegal to violate, even if it was wrongly issued in the first place.

In Golb, the Court of Appeals fixed the problem, reiterating the long established principal that "any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence."  The case also involves the Dead Sea scrolls, making it an interesting read.  What the Court does not mention, however, is that what helped create the problem - and let it remain for twenty years - was the Court's decision in People v. Shack , 86 N.Y.2d 539 (1995).  In Shack, the court upheld a portion of the aggravated harassment statute, in the context of a mentally ill man who made 185 unwanted phone calls to an estranged relative who was a therapist. The egregious conduct in that case causes an otherwise unduly vague statute to stand for another twenty years.

The second decision, possibly with further reaching implications, is People v Marquan M., 2014 N.Y. LEXIS 1527 (July 1, 2014).  With Golb, the aggravated harassment statute was like NewYork's dirty secret -- everyone knew it was unconstitutional.  Marquan, however, involved Albany's anti-cyberbullying law, which seemed to follow the Courts' prior guidance on what was required to get past First Amendment scrutiny. The law made the following a crime: 
Any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person
The statute is not a model of clarity. The words from "including" through "hate mail" are a non-exhaustive list of examples (ostensibly meaning that it really applies to "any act of communication"), and the list includes a single errant semicolon (probably added solely so that MS Word would stop saying it was a run on sentence).  Disregarding that list, the statute criminalizes:

A. "any act of communicating"
B. "with no legitimate private, personal, or public purpose"
C. "with intent to..."
What makes this decision interesting is the discussion of the no legitimate purpose language.  In the past, in Shack and other cases, this clause has routinely used to save criminal statutes from violating the First Amendment.  It creates a defense (or, more properly, an additional element to be proved), where the statute is not violated if there was a free speech protected purpose in the communication.  A legitimate purpose can be expressing opinion, or disagreement, or your own feelings. 

The trend had previously been in favor of finding statutes constitutional on their face and leaving them on the books, and then letting the lower courts interpret legitimate purpose language in each individual case (thereby leaving many, many, many cases subject to a motion to dismiss for an "as applied" constitutional challenge).  

Now, the Court of Appeals has apparently moved away from this preference for an as-applied approach, explaining that letting the "no legitimate purpose" clause save the statute effectively leaves the lower courts engaging in Constitutional analysis on a case-by-case basis and “begs the central question of what speech is ‘protected’ and what is not.”  

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