New Jersey v. Burkert

Annotate this Case
Justia Opinion Summary

William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became strained after Burkert read online comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated by downloading the Haltons’ wedding photograph, copied it and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom. Halton testified that when he arrived at the employee garage of the Union County Jail and saw papers “blowing all over the place.” He picked one up and discovered Flyer #1. The next day, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers’ locker room. Halton identified the handwriting on both flyers as Burkert’s. Halton was engaged in union negotiations, a lieutenant handed him Flyer #2, stating, “This came out the other night.” Halton indicated that he “was a mess in negotiations,” went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment. Ten months after the flyer incidents, Halton filed criminal harassment charges against Burkert. During the county’s investigation into the flyers, Burkert admitted that he had prepared the flyers but denied circulating them. Though a municipal court found Burkert guilty of harassment, a panel of the Appellate Division reversed Burkert's conviction, finding the commentary added to the wedding photograph as constitutionally protected speech. The panel also found that the vulgar commentary on the flyers did not constitute criminal harassment. The New Jersey Supreme Court affirmed: "Burkert’s intent to annoy was not a crime, and he did not engage in the type of repetitive acts contemplated by the statute. Therefore, Burkert is not guilty of a petty disorderly persons offense, although he may be subject to workplace discipline or a civil tort action. The language on the flyers, despite its vulgarity and meanness, is constitutionally protected from a criminal prosecution for harassment."

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                    State v. William Burkert (A-6-16) (077623)

Argued September 11, 2017 -- Decided December 19, 2017

ALBIN, J., writing for the Court.

         This case tests the limits to which a broadly worded harassment statute, 
N.J.S.A. 2C:33-4(c), can
criminalize speech.

         William Burkert and Gerald Halton were corrections officers, who held positions in different unions
representing distinct classes of officers. Their relationship became particularly strained after Burkert read online
comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online
comments, Burkert retaliated. Burkert downloaded the Haltons’ wedding photograph. He then copied the
photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom.

         Halton testified that on January 8, 2011, he arrived at the employee garage of the Union County Jail and
saw papers “blowing all over the place.” He picked one up and discovered Flyer #1. The next day, when Halton
arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers’ locker
room. Halton identified the handwriting on both flyers as Burkert’s. On January 11, while Halton was engaged in
union negotiations, a lieutenant handed him Flyer #2, stating, “This came out the other night.” Halton indicated that
he “was a mess in negotiations,” went home, and never returned to work. Halton explained that he felt embarrassed
and concerned for his safety and received psychological counseling and treatment.

          Ten months after the January incidents, Halton filed criminal harassment charges against Burkert. Halton
stated that he filed the charges only because the county had failed to properly discipline Burkert. He also filed a
civil lawsuit against Burkert. During the county’s investigation into the flyers, Burkert admitted that he had
prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers
rather than “get physical with the guy.” Burkert retired as a corrections officer in September 2012.

         The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in
violation of 
N.J.S.A. 2C:33-4(c). The court found that Burkert made and circulated the flyers in the garage and
locker room, that the bubble dialogue inscribed on the Haltons’ wedding photograph was “lewd and obnoxious,” and
that such language would “seriously annoy any person, in this case Mr. Halton.” In a de novo trial before the Law
Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment.

          A panel of the Appellate Division reversed Burkert’s conviction, concluding that “the commentary
[Burkert] added to [Halton’s] wedding photograph was constitutionally protected speech.” 
444 N.J. Super. 591, 594
(App. Div. 2016). The panel accepted the argument that “the altered photograph . . . was not directed to [Halton],”
but rather to an audience of possibly willing listeners—other corrections officers. Id. at 601-02. The panel
determined that the evidence did not support a finding that the flyers “were a direct attempt to alarm or seriously
annoy” Halton or to invade his privacy rights. Id. at 601. The panel also found that the vulgar commentary on the
flyers did not constitute criminal harassment. Id. at 603.

         The Court granted the State’s petition for certification. 
227 N.J. 377 (2016).

HELD: To ensure that 
N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution
of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated
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.

                                                           1
1. 
N.J.S.A. 2C:33-4 distinguishes between “communications” and “language” that violate the statute in subsection
(a), and “conduct” and “acts” that do so in subsection (c). Although a “course of alarming conduct” or “repeatedly
committed acts” can occur through communications and language alone, it is far from clear that the Legislature had
in mind offensive speech as the object of 
N.J.S.A. 2C:33-4(c). That the primary thrust of 
N.J.S.A. 2C:33-4(c) is not
to interdict speech, but rather conduct, is reinforced in State v. Hoffman, 
149 N.J. 564 (1997). (pp. 15-21)

2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and
proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially
overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic
remedy, however, is not the only—and not even the preferred—approach. Provided that a statute is reasonably
susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the
Constitution. (pp. 21-28)

3. The vaguely and broadly worded standard in 
N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient
notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities
undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if
not more narrowly defined—has the capacity to chill permissible speech. Under 
N.J.S.A. 2C:33-4(c), a person who,
with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however,
cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First
Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs
breathing room and in the long run leads to a more enlightened society. Outside of the category of obscenity, courts
should not play the role of censor by engaging in a weighing of an expression’s value or relative social costs and
benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First
Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain
limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or
terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does
not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded
in an essentially intolerable manner. (pp. 28-33)

4. 
N.J.S.A. 2C:33-4 provides: “[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.” In cases based on pure expressive activity, the amorphous terms
“alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined in more concrete terms
consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the
terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the
Court will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously
annoy” as repeated 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. That standard applies only
in those cases where the alleged harassing conduct is based on pure expressive activity. (pp. 33-36)

5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened
standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case
had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other
circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of
the record favoring the State would not support a harassment conviction under 
N.J.S.A. 2C:33-4(c). (pp. 36-38)

         The judgment of the Appellate Division is AFFIRMED.

         JUSTICE SOLOMON, DISSENTING IN PART, agrees with the majority’s conclusion that N.J.S.A.
2C:33–4(c) required clarification because subsection (c)’s language is impermissibly vague. However, even under
the majority’s clarification of the statutory requirements for subsection (c), Justice Solomon finds that defendant
Burkert’s conduct violates the harassment statute.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
and TIMPONE join in JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed a separate opinion,
dissenting in part.
                                                          2
                                    SUPREME COURT OF NEW JERSEY
                                       A-
6 September Term 2016
                                              077623

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

          v.

WILLIAM BURKERT,

     Defendant-Respondent.


          Argued September 11, 2017 – Decided December 19, 2017

          On certification to the Superior Court,
          Appellate Division, whose opinion is
          reported at 
444 N.J. Super. 591 (App. Div.
          2016).

          Sarah Lichter, Deputy Attorney General,
          argued the cause for appellant (Christopher
          S. Porrino, Attorney General, attorney;
          Sarah Lichter, of counsel and on the
          briefs).

          Steven J. Kaflowitz argued the cause for
          respondent (Caruso Smith Picini, attorneys;
          Steven J. Kaflowitz on the briefs and
          Timothy R. Smith, of counsel and on the
          briefs).

          Edward L. Barocas argued the cause for
          amicus curiae American Civil Liberties Union
          of New Jersey (Edward L. Barocas, Legal
          Director, and Rutgers Constitutional Rights
          Clinic Center for Law & Justice, attorneys;
          Edward L. Barocas, Jeanne M. LoCicero,
          Alexander R. Shalom, and Ronald K. Chen, of
          counsel and on the brief).

          J. Gregory Crane and Eugene Volokh of the
          California bar, admitted pro hac vice,
          submitted briefs on behalf of amicus curiae

                                1
          Pennsylvania Center for the First Amendment
          (Scott & Cyan Banister First Amendment
          Clinic, UCLA School of Law, attorneys; J.
          Gregory Crane and Eugene Volokh, on the
          briefs).

     JUSTICE ALBIN delivered the opinion of the Court.

     The free-speech guarantees of our Federal and State

Constitutions safeguard not only polite and decorous

conversation and debate but also speech that we hate -- speech

that is crude, obnoxious, and boorish.   A commitment to free

discourse requires that we tolerate communication of which we

strongly disapprove.   This case tests the limits to which a

broadly worded harassment statute can criminalize speech.

     William Burkert and Gerald Halton were corrections

officers, who held positions in different unions representing

distinct classes of corrections officers.   Their relationship

became particularly strained after Burkert read online comments

attributed to Halton’s wife that Burkert felt insulted him and

his family.   In response, Burkert downloaded a wedding

photograph of Halton and his wife that was posted on social

media and then inscribed degrading and vile dialogue on copies

of the photograph.   Copies of those photographs were found

strewn in the employee parking garage and locker room of the

Union County Jail.

     Halton filed three complaints in municipal court charging

Burkert with harassment in violation of 
N.J.S.A. 2C:33-4(c),


                                 2
which makes it an offense to have engaged in a “course of

alarming conduct or of repeatedly committed acts with purpose to

alarm or seriously annoy [a] person.”   Halton’s private attorney

prosecuted this quasi-criminal offense on behalf of the State

while Halton contemporaneously pursued a civil action against

Burkert.   A municipal court judge found Burkert guilty of

harassment on two of the complaints, as did a Law Division judge

after a trial de novo on the record.

     The Appellate Division vacated Burkert’s conviction,

determining that although the flyers were wholly unprofessional

and inappropriate for the workplace, they did “not amount to

criminal harassment” in light of our constitutional free-speech

guarantees.

     We affirm.   Criminal laws targeting speech that are not

clearly drawn are anathema to the First Amendment and our state

constitutional analogue because they give the government broad

authority to prosecute protected expressive activities and do

not give fair notice of what the law proscribes.   Such laws also

chill permissible speech because people, fearful that their

utterances may subject them to criminal prosecution, may not

give voice to their thoughts.

     To ensure that 
N.J.S.A. 2C:33-4(c) does not exceed its

constitutional reach in cases involving the prosecution of pure

speech, repeated acts to “alarm” and “seriously annoy” must be


                                 3
read as encompassing only repeated 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.    We consider that approach to

be faithful to the legislative purpose in enacting subsection

(c) of 
N.J.S.A. 2C:33-4 and consonant with the constitutional

guarantees of free speech.   Burkert’s intent to annoy was not a

crime, and he did not engage in the type of repetitive acts

contemplated by the statute.   Therefore, Burkert is not guilty

of a petty disorderly persons offense, although he may be

subject to workplace discipline or a civil tort action.    The

language on the flyers, despite its vulgarity and meanness, is

constitutionally protected from a criminal prosecution for

harassment.

     We therefore affirm the judgment of the Appellate Division,

which dismissed the charges against Burkert.

                                I.

                                A.

     On September 30, 2011, Halton filed three separate

complaints, alleging that Burkert committed the petty disorderly

persons offense of harassment on January 8, 9, and 11, 2011, in

violation of 
N.J.S.A. 2C:33-4(c). 1   A three-day trial was held in


1  A petty disorderly persons offense is punishable by up to
thirty days in jail. 
N.J.S.A. 2C:43-8.

                                 4
the Elizabeth Municipal Court.    Halton’s privately retained

attorney prosecuted the case on behalf of the State. 2

     At trial, Halton and Burkert testified, as did two other

corrections officers.   The testimony, much of which was

undisputed, elicited the following.

     As of January 2011, Halton and Burkert had both worked as

Union County correctional officers for more than twenty years.

Halton served as a sergeant and also as the vice president of

the Fraternal Order of Police (FOP), a union representing high-

ranking corrections officers.    Burkert served as a corrections

officer and also as the treasurer of the Policemen’s Benevolent

Association (PBA), a union representing rank-and-file

corrections officers.   The rivalry between those two unions

evidently caused friction in their personal relationship.    The

tension became much more acute when Burkert learned that

Halton’s wife was posting derogatory comments about him and his



2  Our court rules do not permit an attorney to appear as a
private prosecutor on behalf of the State, except in cases
involving cross-complaints, and then only on motion to the
municipal court after review of “an accompanying certification
submitted on a form approved by the Administrative Director of
the Courts.” R. 7:8-7(b). No objection was made to Halton’s
attorney acting as the prosecutor in the municipal court. After
the conclusion of the municipal court proceedings, the Union
County Prosecutor’s Office represented the State in all matters
concerning this case. Going forward, our municipal courts must
strictly enforce Rule 7:8-7(b), which has the beneficent purpose
of ensuring that quasi-criminal actions brought in the name of
the State proceed in a disinterested manner.


                                  5
family on a public internet forum.    Halton’s wife referred to

Burkert and his two brothers -- who also were corrections

officers -- as bullies.    According to Burkert, the postings also

described him as “fat” and one of his brothers as “quirky” and

“kind of retarded.”

     Angered by the insulting online comments, Burkert

retaliated.   Burkert downloaded the Haltons’ wedding photograph,

which Halton’s wife apparently had posted on a social media

website.   He then copied the photograph and made two flyers,

writing lewd dialogue in speech bubbles over the faces of the

bride and groom.    On Flyer #1, over Halton’s face were the

words, “I know I’m a pussy with a little dick.    Don’t do the

inmates please Laura,” and over his wife’s face were the words,

“I wish you had a cock like the inmates.”    On Flyer #2, over

Halton’s face, the writing stated, “Fam, I got me another

whore.”    According to Halton, “fam” is a term denoting the

corrections officers as family, and the dialogue on the flyers

obliquely referenced his prior wife, a former corrections

officer who he claimed had relations with another officer and an

inmate.

     Halton testified that on January 8, 2011, at approximately

10:45 p.m., he arrived at the employee garage of the Union

County Jail, parked his vehicle, and saw papers “blowing all

over the place.”    He picked one up and discovered Flyer #1.


                                  6
Halton was offended and humiliated by the scurrilous writing

over his wedding photograph.    As he approached the gun locker

area, Burkert and his brother, Sergeant Kevin Burkert, stood in

his path.    As he walked between them, Halton asked, “What’s up,”

and Burkert replied, “You’re what’s up.”    Later, while Halton

was working at the booking area, he received a call from

Burkert.    During their conversation, Burkert mentioned that

Halton’s wife had called him fat; Halton denied having any

knowledge of it.    When asked, Burkert denied knowing about the

flyers.    The conversation came to an inconclusive end.

     The next day, January 9, when Halton arrived at work, a

sergeant handed him Flyer #2, which the sergeant had found in

the area of the officers’ locker room.    Halton identified the

handwriting on both flyers as Burkert’s.

     On January 11, while Halton was off his usual schedule and

engaged in union negotiations for the FOP, a lieutenant handed

him Flyer #2, stating, “This came out the other night.”    The

flyer was the same one turned over to Halton two days earlier. 3

Halton indicated that he “was a mess in negotiations,” went

home, and never returned to work.     Halton explained that he felt

embarrassed and concerned for his safety and received



3  Lieutenant Patricia Mauko testified that she found twenty to
thirty copies of one of the flyers during a routine inspection
of the corrections officers’ locker room on January 11.


                                  7
psychological counseling and treatment.      He received workers’

compensation benefits for this work-related injury and retired

on November 1, 2011.    Halton acknowledged that he did not know

who was responsible for placing the flyers in the various

locations.

      Ten months after the January incidents, Halton filed the

criminal harassment charges.    Halton stated that he filed the

charges only because the county had failed to properly

discipline Burkert. 4   He also filed a civil lawsuit against

Burkert.

      During the county’s investigation into the flyers, Sergeant

Stephen Pilot interviewed Burkert.      Sergeant Pilot advised

Burkert that a refusal to give a statement would jeopardize his

employment.   Burkert admitted to Pilot that he had prepared the

flyers but denied circulating them. 5




4   Burkert received a work-imposed suspension for his conduct.
5  At trial, Burkert claimed that the admission of his statement
violated Garrity v. New Jersey, 
385 U.S. 493 (1967). The
Garrity rule generally stands for the proposition that a
statement taken from a public employee, threatened with
termination from employment if he refuses to cooperate, is
inadmissible in a criminal prosecution on the ground that such
official coercion “interferes with the exercise of the Fifth
Amendment privilege against self-incrimination.” State v.
Graves, 
60 N.J. 441, 450 (1972). The municipal court did not
formally rule on the defense’s objection and did not reference
Sergeant Pilot’s testimony in its factual findings. The Garrity
issue is not before us.


                                  8
     Burkert testified that he had been friends with Halton and

became angry when he discovered that Halton’s wife had been

posting insulting comments about him and his brothers on a

website for more than two years.       While on the website, Burkert

clicked a link to the wife’s screen name, and the Haltons’

wedding photograph appeared.    He admitted downloading the

photograph, inscribing the bubble dialogue over the Haltons’

faces, and attaching the two flyers to the wall behind his desk

in his union office.     He denied, however, circulating the flyers

that were later discovered in the garage and locker room.

According to Burkert, on the evening of January 8, after the

telephone conversation earlier described by Halton, he went to

see Halton and said, “Here.    I made the pictures.    This is

payback for what you did to my family.”      Burkert explained that

he expressed himself through the flyers rather than “get

physical with the guy.”    Burkert retired as a corrections

officer in September 2012.

     No testimony was elicited that Burkert worked either on

January 9 or 11, 2011.

     The municipal court entered a guilty verdict against

Burkert for harassing Halton on January 8 and 11 in violation of


N.J.S.A. 2C:33-4(c). 6   The court found that Burkert made and


6  Although the court made no mention of the complaint relating
to the January 9 incident, the municipal court disposition sheet

                                   9
circulated the flyers in the garage and locker room, that the

bubble dialogue inscribed on the Haltons’ wedding photograph was

“lewd and obnoxious,” and that such language would “seriously

annoy any person, in this case Mr. Halton.”   The court imposed

fines of $500 for each conviction and additional financial

assessments and costs.

                               B.

     In a de novo trial on the record before the Law Division,

the court found Burkert guilty beyond a reasonable doubt of

committing acts of harassment on January 8 and 11.   The court

determined that Burkert created and circulated the photographs

and did so with the purpose to harass, and further that the

harassing conduct was not protected by the First Amendment.

More specifically, the court held that Burkert’s intent in

placing the vulgar language on the photos was to seriously annoy

Halton in violation of 
N.J.S.A. 2C:33-4(c).   The Law Division

imposed the same fines, assessments, and costs as the municipal

court.

                               C.

     A panel of the Appellate Division reversed Burkert’s

conviction, concluding that “the commentary [Burkert] added to




indicates that complaint was “merged” into the two other
charges.


                               10
[Halton’s] wedding photograph was constitutionally protected

speech.”    State v. Burkert, 
444 N.J. Super. 591, 594 (App. Div.

2016). 7   The panel accepted the argument that “the altered

photograph . . . was not directed to [Halton],” but rather to an

audience of possibly willing listeners -- other corrections

officers.    Id. at 601-02.   The panel determined that the

evidence did not support a finding that the flyers “were a

direct attempt to alarm or seriously annoy” Halton or to invade

his privacy rights.    Id. at 601.     The panel stated that the

“uncouth annotations to [Halton’s] wedding photograph” amounted

to “constitutionally protected expression, despite its boorish

content, which bothered or embarrassed [Halton].”       Ibid.    The

panel also found that the vulgar commentary on the flyers,

although “unprofessional, puerile, and inappropriate for the

workplace,” did not constitute criminal harassment.       Id. at 603.

The panel did not address whether the flyers exposed Burkert to

employment discipline.    Ibid.

     We granted the State’s petition for certification.         
227 N.J. 377 (2016).    We also granted the motions of the

Pennsylvania Center for the First Amendment and the American




7  The Appellate Division did not consider the Garrity question
because of its finding that Burkert’s “conduct was non-
actionable protected speech.” Id. at 599.


                                  11
Civil Liberties Union of New Jersey (ACLU-NJ) to participate as

amicus curiae.

                                  II.

                                  A.

     The State argues that the Appellate Division erred in

vacating Burkert’s harassment conviction on First Amendment

grounds and that Burkert’s conduct in creating and distributing

the flyers was sufficient to justify the conviction.    According

to the State, “[t]he harassment statute restricts conduct, not

speech,” and the right to free speech “does not encompass a

right to abuse or annoy another person intentionally.”    The

State contends that “speech or writing used as an integral part

of the harassing conduct is not entitled to First Amendment

protection.”     The State rejects the notion that Burkert engaged

in permissible speech with an audience that included willing

listeners, suggesting that inmates may have been part of that

audience and that a “workplace audience is 'captive.’”    The

State emphasizes that 
N.J.S.A. 2C:33-4(c) requires that a

defendant act with the purpose to harass -- “with a conscious

object . . . to annoy” -- to demonstrate that permissible speech

will not fall within the statute’s sweep.    To establish that

Burkert’s “course of conduct was alarming and injurious,” the

State points to Burkert’s admission that “he made the flyers as

an alternative to physically assaulting Halton” and, from that


                                  12
admission, reasons that Burkert intended “the flyers to have the

same effect as a fight.”

                                B.

     Burkert contends that the Appellate Division properly

vacated his conviction, reasoning that “[u]nder the First

Amendment, the State cannot prosecute an individual for publicly

taunting another, even if done through crude language and with

an intent to annoy.”   Burkert asserts that the speech on the

flyers constituted an opinion and cannot be criminalized by

labeling it conduct.   Burkert asks this Court to “reaffirm” that

“the mere fact that expressive activity causes hurt feelings,

offense, or resentment does not render the expression

unprotected.”

                                C.

     Amicus Pennsylvania Center for the First Amendment submits

that the Appellate Division correctly reversed Burkert’s

conviction for the following reasons:   (1) New Jersey

jurisprudence has “applied the criminal harassment statute only

to repeated communication to an unwilling listener, not speech

about an unwilling listener”; (2) the flyers at issue conveyed

words and pictures -- traditional means of speech -- and cannot

be reclassified as conduct to evade the protections of the First

Amendment; (3) the speech here did not fall into the category of

speech integral to a criminal offense because the flyers were


                                13
not ancillary to other conduct -- rather, the expressions on the

flyers were the only target of the prosecution; (4) speech does

not lose its First Amendment protection, however vulgar the

content, even when its purpose is simply to offend; and (5)

Burkert’s speech was no less deserving of constitutional

protection because the matters addressed were personal rather

than political.

                                D.

     Amicus ACLU-NJ proposes that this Court adopt a “sensible

construction” of the language “purpose to harass” in 
N.J.S.A.

2C:33-4(c) that will keep the statute within constitutional

bounds.   The ACLU-NJ contends that a defendant’s use of speech

with the intent “to insult, embarrass or even humiliate” should

not be sufficient to justify a harassment conviction under


N.J.S.A. 2C:33-4(c), even though such conduct may trigger civil

consequences, such as a private tort action or employment

discipline.   The ACLU-NJ suggests that we construe 
N.J.S.A.

2C:33-4(c) to require that a “defendant have the conscious

object to cause in the victim the fear or apprehension of

intrusion into the victim’s safety, security, or seclusion.”

According to the ACLU-NJ, that interpretation is consistent with

our case law and will make clear that the statute cannot

criminalize “insulting and even vulgar communications” of the




                                14
type in this case that are an inevitable part of the

aggravations of daily existence.

                                 III.

     The issue before us is whether Burkert is guilty of

harassment because, as he intended, the lewd flyers seriously

annoyed Halton.     In addressing that issue, we must determine

whether the Legislature intended 
N.J.S.A. 2C:33-4(c) to

criminalize the type of speech in this case.

     To understand the meaning of 
N.J.S.A. 2C:33-4(c), we must

look not only to the statutory language, but also to related

provisions in surrounding statutes.     State v. Crawley, 
187 N.J.
 440, 452 (2006) (“[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))).     We begin with 
N.J.S.A.

2C:33-4, which provides:

          [A] person commits a petty disorderly persons
          offense if, with purpose to harass another,
          he:

          a.      Makes,   or   causes   to   be  made,   a
                  communication      or      communications
                  anonymously or at extremely inconvenient
                  hours, or in offensively coarse language,
                  or any other manner likely to cause
                  annoyance or alarm;

          b.      Subjects another to striking, kicking,
                  shoving, or other offensive touching, or
                  threatens to do so; or



                                  15
          c.    Engages in any other course of alarming
                conduct or of repeatedly committed acts
                with purpose to alarm or seriously annoy
                such other person.

     The statute distinguishes between “communications” and

“language” that violate the statute in subsection (a), and

“conduct” and “acts” that do so in subsection (c).   Likewise, in

surrounding statutes, the Legislature has clearly indicated when

language and communication can be the basis for a criminal

prosecution.   The “disorderly conduct” statute targets

“unreasonably loud and offensively coarse or abusive language”

in a public place, 
N.J.S.A. 2C:33-2(b) (emphasis added), and the

“cyber-harassment” statute targets certain online

“communication[s],” 
N.J.S.A. 2C:33-4.1 (emphasis added).     The

Legislature has made clear when its primary objective is to

classify speech as criminal in nature.

     Although a “course of alarming conduct” or “repeatedly

committed acts” can occur through communications and language

alone, it is far from clear that the Legislature had in mind

offensive speech as the object of 
N.J.S.A. 2C:33-4(c).     This

point comes into better focus by examining the Model Penal Code

(MPC) Section 250.4, which is the source of 
N.J.S.A. 2C:33-4.

See 
N.J.S.A. 2C:33-4; 1 The New Jersey Penal Code: Final Report

§ 2C:33-4 (Criminal Law Revision Comm’n 1971); State v.

Robinson, 
217 N.J. 594, 606 (2014) (“When a provision of the



                                16
Code is modeled after the MPC, it is appropriate to consider the

MPC and any commentary to interpret the intent of the statutory

language.”).

     MPC Section 250.4, which is entitled “Harassment,”

provides:

            A person commits a petty misdemeanor if,
            with purpose to harass another, he:

            (1)   makes a telephone call without purpose of
                  legitimate communication; or

            (2)   insults, taunts or challenges another
                  in a manner likely to provoke violent
                  or disorderly response; or

            (3)   makes repeated communications
                  anonymously or at extremely
                  inconvenient hours, or in offensively
                  coarse language; or

            (4)   subjects another to an offensive
                  touching; or

            (5)   engages in any other course of alarming
                  conduct serving no legitimate purpose
                  of the actor.

     Subsections (1) through (3) of MPC Section 250.4 correspond

to 
N.J.S.A. 2C:33-4(a).     The MPC Commentaries indicate that

“[s]ubsections (1) through (3) of [MPC Section 250.4] proscribe

harassment by communication.”     Model Penal Code (MPC) § 250.4

cmt. 6 (Am. Law Inst. 1962).     On the other hand, MPC Section

250.4(5), which directly corresponds to 
N.J.S.A. 2C:33-4(c),

primarily prohibits “harassment by action rather than by

communication,” ibid., and does not apply to harassment covered


                                  17
by the other subsections, id. § 250.4 cmt. 5.      The MPC drafters

provide three illustrations of conduct proscribed by subsection

(5):    “burning a cross on the lawn of a black family,” “leaving

animal carcasses on a neighbor’s stoop,” and “shining a

spotlight into a parked car in order to embarrass or frighten

the occupants.”    Ibid.   Those examples suggest that subsection

(5) focused on conduct intended to cause fright and threaten a

person’s safety, security, or reasonable expectation of privacy.

       Under subsection (5), the MPC drafters acknowledge a

potential scenario “of harassing conduct [that] is so imbued

with expressive content as to implicate first-amendment

concerns.”    Id. § 250.4 cmt. 6.    Nevertheless, the drafters

believed that such concerns “would probably be excluded by the

statutory requirements that the action serve no legitimate

purpose of the actor and that there be a purpose to harass.”

Ibid.

       Unlike MPC Section 250.4(5), 
N.J.S.A. 2C:33-4(c) allows for

a harassment conviction based on conduct that “seriously annoys”

another.    As a consequence, 
N.J.S.A. 2C:33-4(c) criminalizes a

much broader swath of conduct than the MPC.      Additionally,

unlike the MPC, 
N.J.S.A. 2C:33-4(c) does not limit prosecutions

to expressive acts or conduct that have “no legitimate purpose.”

Overall, compared to our state harassment statute, MPC Section

250.4(5) is more narrowly drawn to insulate it from potential


                                    18
First Amendment concerns.

     That the primary thrust of 
N.J.S.A. 2C:33-4(c) is not to

interdict speech, but rather conduct, is reinforced in State v.

Hoffman, 
149 N.J. 564 (1997).    In that case, we found that a

defendant who ripped up a court support order and sent it to his

estranged wife did not constitute harassment under 
N.J.S.A.

2C:33-4(a).   Id. at 584.   In rendering that decision, we

distinguished subsection (c) from subsection (a) of 
N.J.S.A.

2C:33-4.   We explained that

           [t]he purpose of subsection (c) is to reach
           conduct not covered by subsections (a) and
           (b). For example, if a person were to ring a
           former companion’s doorbell at 3:00 p.m. on
           Sunday, flash bright lights into her windows
           on Monday at 6:00 p.m., throw tomatoes into
           her front door on Tuesday at 6:30 p.m., throw
           eggs on her car on Wednesday, and repeat the
           same conduct over a two-week period, a judge
           could find that subsection (c) has been
           violated.   We do not imply by that example
           that five or more episodes are required to
           establish a course of alarming conduct.

           [Id. at 580-81.]

     The example given in Hoffman indicates that the Court

considered subsection (c) -- which makes unlawful a “course of

alarming conduct or of repeatedly committed acts with purpose to

alarm or seriously annoy” -- as targeting harassment by action.

Despite the Hoffman example, we do not doubt that, in certain

clearly defined circumstances, speech can take the form of

conduct and therefore be the appropriate focus of a subsection


                                 19
(c) prosecution.   It is evident, however, that the Legislature

was not homing in on speech in subsection (c).

     In the cyber-harassment statute, 
N.J.S.A. 2C:33-4.1, which

became effective in 2014, the Legislature made it a crime when a

defendant, through an online electronic communication,

“threatens to inflict injury or physical harm”; “threatens to

commit any crime against [a] person or [a] person’s property”;

or knowingly sends lewd or obscene material with the “intent to

emotionally harm a reasonable person.”   The cyber-harassment

statute limits the criminalization of speech mostly to those

communications that threaten to cause physical or emotional harm

or damage.   The cyber-harassment statute’s precise and exacting

standard thus stands in contrast to the more loosely worded

language of 
N.J.S.A. 2C:33-4(c).

     One further observation.   At the time the Legislature

passed the New Jersey Code of Criminal Justice, 
N.J.S.A. 2C:1-1

to 104-9, it repealed New Jersey’s last criminal libel statute,


N.J.S.A. 2A:120-1.   L. 1978, c. 95, § 2C:98-2 (eff. Sept. 1,

1979).   In doing so, the Legislature signaled that the criminal

law would not be used as a weapon against defamatory remarks,

thereby aligning our new criminal code with the Model Penal

Code.

     The MPC Commentaries reveal that a criminal libel provision

was not included in the MPC because “penal sanctions cannot be


                                20
justified merely by the fact that defamation is evil or damaging

to a person in ways that entitle him to maintain a civil suit.”

Model Penal Code (MPC Tentative Draft) § 250.7 cmt. 2 (Am. Law

Inst., Tentative Draft No. 13, 1961).   Criminal laws are usually

reserved “for harmful behavior which exceptionally disturbs the

community’s sense of security,” not for “personal calumny.”

State v. Browne, 
86 N.J. Super. 217, 228 (App. Div. 1965)

(quoting MPC Tentative Draft § 250.7 cmt. 2). 8

     Accordingly, the Legislature framed the New Jersey Code of

Criminal Justice with a conscious deference to the right of free

expression.   We now turn to the constitutional constraints

placed on overly broad criminal statutes that threaten the right

to free speech.

                                IV.

                                A.

     The First Amendment protects “freedom of speech,” U.S.

Const. amend. I., as does Article I, Paragraph 6 of the New

Jersey Constitution, which states that “[e]very person may

freely speak, write and publish his sentiments on all subjects,

being responsible for the abuse of that right.”




8  Defamatory speech that is protected from criminal prosecution
may nonetheless be subject to a civil action and damages. New
Jersey, like many other states, has made tort remedies available
to those who suffer such affronts. See, e.g., Senna v.
Florimont, 
196 N.J. 469 (2008).

                                21
     Laws may “not transgress the boundaries fixed by the

Constitution for freedom of expression.”      Winters v. New York,


333 U.S. 507, 515 (1948).   Accordingly, “the scrutiny to be

accorded legislation that trenches upon first amendment

liberties must be especially scrupulous.”      State v. Cameron, 
100 N.J. 586, 592 (1985).   The constitutional guarantee of free

speech, moreover, imposes higher “standards of certainty” on

criminal laws than civil laws.   Winters, 
333 U.S.  at 515.

“Penal laws . . . are subjected to sharper scrutiny and given

more exacting and critical assessment under the vagueness

doctrine than civil enactments.”      Cameron, 
100 N.J. at 592.

     Criminal laws touching on speech must give fair notice of

where the line is set between what is permissible and proscribed

and must be drawn “with appropriate definiteness.”      Winters, 
333 U.S.  at 515 (quoting Pierce v. United States, 
314 U.S. 306, 311

(1941)); accord Cantwell v. Connecticut, 
310 U.S. 296, 304

(1940).   Vague and overly broad laws criminalizing speech have

the potential to chill permissible speech, causing speakers to

silence themselves rather than utter words that may be subject

to penal sanctions.   Reno v. ACLU, 
521 U.S. 844, 871–72 (1997);

NAACP v. Button, 
371 U.S. 415, 433 (1963).      Such laws also give

government authorities undue prosecutorial discretion, thus

increasing “the risk of discriminatory enforcement.”      See Reno,




                                 22

521 U.S.  at 872 (citing Denver Area Educ. Telcomms. Consortium

v. FCC, 
518 U.S. 727 (1996)).

     “A court can invalidate a statute that is substantially

overbroad on its face” if “the statute 'reaches a substantial

amount of constitutionally protected conduct.’”     State v.

Mortimer, 
135 N.J. 517, 530 (1994) (quoting Houston v. Hill, 
482 U.S. 451, 458-59 (1987)).   Such a drastic remedy, however, is

not the only -- and not even the preferred -- approach.      State

Chamber of Commerce v. Election Law Enf’t Comm’n, 
82 N.J. 57, 81

(1980) (holding that “narrow and discriminate construction of

the key terms of the legislation serves to overcome its major

overbreadth objections” and is done “to salvage the

Legislature’s own product”).    When a statute’s constitutionality

is subject to doubt because of ambiguity in its wording, we

proceed under “the assumption that the legislature intended to

act in a constitutional manner.”      State v. Johnson, 
166 N.J.
 523, 540-41 (2001) (quoting Right to Choose v. Byrne, 
91 N.J.
 287, 311 (1982)).   Provided that a statute is “reasonably

susceptible” to an interpretation that will render it

constitutional, we must construe the statute to conform to the

Constitution, thus removing any doubt about its validity.      State

v. Profaci, 
56 N.J. 346, 350 (1970); see also State Bd. of

Higher Educ. v. Bd. of Dirs. of Shelton Coll., 
90 N.J. 470, 478

(1982).


                                 23
     In short, we must construe a statute that criminalizes

expressive activity narrowly to avoid any conflict with the

constitutional right to free speech.    For example, in State v.

Rosenfeld, this Court affirmed the overturning of the

defendant’s conviction under 
N.J.S.A. 2A:170-29(1) for using

foul language (the words “Mother F     ing”) in a school

auditorium during a municipal discussion on racism.    
62 N.J.
 594, 603-04 (1973).   
N.J.S.A. 2A:170-29(1) -- a predecessor

statute to 
N.J.S.A. 2C:33-2 and -4 -- made it an offense for a

person to “utter[] loud and offensive or profane or indecent

language in any . . . place to which the public is invited.”

The Court noted, “the State has no right to cleanse public

debate to the point where it is grammatically palatable to the

most squeamish among us.”   Rosenfeld, 
62 N.J. at 603 (quoting

Cohen v. California, 
403 U.S. 15, 25 (1971)).    The Court

constrained the broadly worded statute so that it only

“prohibits indecent language which is spoken loudly in a public

place and is of such nature as to be likely to incite the hearer

to an immediate breach of the peace.”    Ibid. (emphasis added).

     In rendering its decision, the Rosenfeld Court cited

extensively to Gooding v. Wilson, in which the United States

Supreme Court vacated the conviction of a defendant who violated

a Georgia misdemeanor statute that prohibited the use of

“opprobrious words or abusive language, tending to cause a


                                24
breach of the peace.”   Rosenfeld, 
62 N.J. at 600 (quoting

Gooding v. Wilson, 
405 U.S. 518, 519 (1972)).    The United States

Supreme Court found the statute unconstitutionally overbroad

because the statute made it a misdemeanor “merely to speak words

offensive to some who hear them.”    Ibid. (quoting Gooding, 
405 U.S. at 527).

     Significantly, this Court has construed the language in

subsection (a) of 
N.J.S.A. 2C:33-4 -- which proscribes

communications made in any “manner likely to cause annoyance or

alarm” -- as encompassing, “for constitutional reasons, only

those modes of communicative harassment that 'are also invasive

of the recipient’s privacy,’” Cesare v. Cesare, 
154 N.J. 394,

404 (1998) (quoting Hoffman, 
149 N.J. at 583), and that

constitute threats to safety, see id. at 414-15.    In that vein,

our courts have upheld harassment convictions pursuant to


N.J.S.A. 2C:33-4(a) where a defendant scrawled racially

offensive graffiti on a victim’s home, Mortimer, 
135 N.J. 517,

made persistent unwanted telephone calls, which included a

racial slur, to the victim’s workplace, State v. Fin. Am. Corp.,


182 N.J. Super. 33 (App. Div. 1981), and repeatedly knocked on

the door and rang the doorbell of a home in which the

defendant’s physically abused wife had sought shelter, State v.

Reyes, 
172 N.J. 154 (2002).

                                B.


                                25
     How courts in other states have addressed harassment

statutes is also instructive.

     In People v. Norman, the Colorado Supreme Court declared

the state’s harassment statute unconstitutional due to

vagueness.    
703 P.2d 1261, 1267 (Colo. 1985).   Colo. Rev. Stat.

Section 18-9-111(1)(d) (1978) (repealed, H.B. 90-1118, 57th Gen.

Assemb., 2d Reg. Sess. (Colo. 1990)) -- like 
N.J.S.A. 2C:33-4(c)

-- provided that a person commits the crime of harassment if,

“with intent to harass, annoy, or alarm another person,” he

“engages in conduct or repeatedly commits acts that alarm or

seriously annoy another person and that serve no legitimate

purpose.”    The Colorado high court found the statute

constitutionally infirm on due process grounds because it

provided no limiting standards “to assist citizens, courts,

judges or police personnel to define what conduct is prohibited

and, conversely, what conduct is permitted” and gave prosecutors

“unfettered” discretion.    Norman, 703 P.2d    at 1267.

     Norman followed an earlier Colorado Supreme Court decision

that struck down a subsection of Colorado’s harassment statute

similar to 
N.J.S.A. 2C:33-4(a).    Bolles v. People, 
541 P.2d 80,

84 (Colo. 1975).    The Court found that the statute was

impermissibly overbroad and impinged on free-speech rights.

Ibid.   The Court determined that the terms “annoy” and “alarm”

were so vague that even innocuous comments about noteworthy but


                                  26
unpleasant topics might subject a person to criminal

prosecution.   Id. at 82-83.

     Likewise, the United States Court of Appeals for the Fifth

Circuit struck down on vagueness grounds a Texas harassment

statute similar to 
N.J.S.A. 2C:33-4(a).   Kramer v. Price, 
712 F.2d 174, 178 (5th Cir. 1983).   The Fifth Circuit found that the

absence of clear enforcement guidelines gave prosecutors

“unbounded discretion” and subjected the exercise of First

Amendment rights to an “unascertainable standard.”   Ibid.

     In People v. Dietze, the New York Court of Appeals declared

a subsection of New York’s harassment statute, N.Y. Penal Law

§ 240.25(2) (1988) (current version at N.Y. Penal Law § 240.26),

overbroad and therefore unconstitutional because of its

potential infringement on free-speech rights.   
549 N.E.2d 1166,

1167 (N.Y. 1989).   N.Y. Penal Law Section 240.25(2) stated:    “A

person is guilty of harassment when, with intent to harass,

annoy or alarm another person . . . [i]n a public place, he uses

abusive or obscene language, or makes an obscene gesture.”     In

overturning subsection (2), the Court of Appeals cautioned 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 or other breach of the

peace.”   Dietze, 
549 N.E 2d at 1168.




                                 27
     Those cases reinforce the notion that harassment statutes

must be written with sufficient precision to ensure that

protected speech does not fall within the realm of a potential

criminal prosecution and to give fair notice of where free

speech ends and criminal conduct begins.

                                V.

                                A.

     We conclude that the vaguely and broadly worded standard in


N.J.S.A. 2C:33-4(c) does not put a reasonable person on

sufficient notice of the kinds of speech that the statute

proscribes.   The statute’s vagueness also gives prosecuting

authorities undue discretion to bring charges related to

permissive expressive activities.    That, in turn, means that the

statute -- if not more narrowly defined -- has the capacity to

chill permissible speech.

     Although patterned after the MPC, 
N.J.S.A. 2C:33-4(c) is

more broadly written than its MPC counterpart and therefore more

likely to impinge on protected expressive activities.   Whereas


N.J.S.A. 2C:33-4(c) permits the 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.”   See 
N.J.S.A. 2C:33-4(c).


                                28
     The circularity of the language of 
N.J.S.A. 2C:33-4,

moreover, does not place limits on the statute.    Under 
N.J.S.A.

2C:33-4, an accused may not be convicted unless he acts “with

the purpose to harass.”    However, one common definition of

harass is to annoy.   See Black’s Law Dictionary 784 (9th ed.

2009); Webster’s Third New International Dictionary 1031 (1981).

Accordingly, the words “harass” and “annoy” are interchangeable.

By that reckoning, under subsection (c), a person who, with the

purpose to seriously annoy another, does seriously annoy another

is guilty of harassment.

     Speech, however, cannot be transformed into criminal

conduct merely because it annoys, disturbs, or arouses contempt.

See Houston, 
482 U.S.  at 461 (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).   “There is no categorical 'harassment

exception’ to the First Amendment’s free speech clause.”    Saxe

v. State Coll. Area Sch. Dist., 
240 F.3d 200, 204 (3d Cir.

2001).

     The First Amendment protects offensive discourse, hateful

ideas, and crude language because freedom of expression needs

breathing room and in the long run leads to a more enlightened


                                 29
society.   See Terminiello, 
337 U.S.  at 4.   Outside of the

category of obscenity, courts should not play the role of censor

by engaging in a weighing of an expression’s value or “relative

social costs and benefits.”   United States v. Stevens, 
559 U.S. 460, 470 (2010); see also Brown v. Entm’t Merchs. Ass’n, 
564 U.S. 786, 792-93 (2011).   Speech cannot be criminalized merely

because others see no value in it.   “The First Amendment

generally prevents government from proscribing speech, or even

expressive conduct, because of disapproval of the ideas

expressed.”   R.A.V. v. St. Paul, 
505 U.S. 377, 382 (1992)

(citations omitted).

     Nonetheless, neither the First Amendment nor Article I,

Paragraph 6 of our State Constitution prohibits the State from

criminalizing certain limited categories of speech, such as

speech that is integral to criminal conduct, speech that

physically threatens or terrorizes another, or speech that is

intended to incite imminent unlawful conduct.    See United States

v. Alvarez, 
567 U.S. 709, 717 (2012); cf. Hamilton Amusement

Ctr. v. Verniero, 
156 N.J. 254, 264 (1998).    For example, a

robber’s command that a victim turn over money is unprotected

speech because the expressive activity is integral to the

commission of a crime.   Likewise, laws that punish threats of

physical harm are constitutional because the State has a strong

interest in “protecting individuals from the fear of violence,


                                30
from the disruption that fear engenders, and from the

possibility that the threatened violence will occur.”    R.A.V.,


505 U.S.  at 388; see also United States v. Turner, 
720 F.3d 411,

420-21 (2d Cir. 2013) (holding that defendant’s threatening

statements to judges, despite political content, were not

protected by First Amendment).

     The First Amendment also does not bar states from enacting

laws that punish expressive activity when “substantial privacy

interests are being invaded in an essentially intolerable

manner.”   See Cohen, 
403 U.S.  at 21.   Although the “presence of

unwitting listeners or viewers does not serve automatically to

justify curtailing all speech capable of giving offense,” the

government, for example, may “prohibit intrusion into the

privacy of the home of unwelcome views and ideas which cannot be

totally banned from the public dialogue.”   Ibid.   A speaker

using a bullhorn in a town square may voice objectionable ideas

to passing members of the public who are seemingly a captive

audience without offending the First Amendment, but the

Constitution will not protect the speaker with a bullhorn

bellowing outside a home in the early morning hours.    See Frisby

v. Schultz, 
487 U.S. 474, 484 (1988) (noting that although

“[o]ne important aspect of residential privacy is protection of

the unwilling listener,” “'we are often “captives” outside the




                                 31
sanctuary of the home and subject to objectionable speech’”

(quoting Rowan v. Post Office Dep’t, 
397 U.S. 728, 738 (1970))).

     In Hoffman, we determined that the catchall language of


N.J.S.A. 2C:33-4(a) -- “any other manner likely to cause

annoyance or alarm” -- was intended to “encompass only those

types of communications that also are invasive of the

recipient’s privacy,” a purpose that would not run amiss of any

constitutional proscription.    See 
149 N.J. at 583-84.   According

to another court, the constitutional right to free expression

does not protect one who “repeatedly invade[s]” another person’s

reasonable expectation of privacy “through the use of acts and

threats that evidence a pattern of harassment designed to

inflict substantial emotional distress.”    People v. Borrelli, 
91 Cal. Rptr. 2d 851, 859-60 (Ct. App. 2000).

     Recognizing that the First Amendment and Article I,

Paragraph 6 of our State Constitution allow the State to punish

threatening speech or speech that invades a person’s reasonable

expectation of privacy in an intolerable manner informs our

analysis in construing the broad language of 
N.J.S.A. 2C:33-4(c)

within constitutional bounds.

                                 B.

     Unlike some of our sister jurisdictions that have struck

down overly broad and vague harassment statutes, our approach is

to conform subsection (c) of 
N.J.S.A. 2C:33-4 “to the


                                 32
Constitution in a way that the Legislature would have intended.”

See State v. Natale, 
184 N.J. 458, 485-86 (2005).    In adopting


N.J.S.A. 2C:33-4(c), which was patterned after its MPC

counterpart, the Legislature’s apparent intent was to address

harassment by action rather than communication.    See MPC § 250.4

cmt. 6.   We cannot say that the Legislature intended to

criminalize speech that poses no threat to a person’s safety or

security or speech that does not intolerably interfere with a

person’s reasonable expectation of privacy.    We have come to

that conclusion by comparing subsection (c) of 
N.J.S.A. 2C:33-4

to subsection (a), to 
N.J.S.A. 2C:33-2, and to the cyber-

harassment statute; by our analysis of the MPC Commentaries; and

by our review of case law, including the example given in

Hoffman of conduct proscribed by subsection (c).    We also find

the limitations that we have placed on the catch-all provision

of subsection (a) instructive.    See Cesare, 
154 N.J. at 404,

414-15; Hoffman, 
149 N.J. at 583.

     The constraint we place on the overbroad language of

subsection (c) is compelled by the principles animating our

free-speech guarantees.    We now return to the specific language

of the statute at issue.

                                  C.

     
N.J.S.A. 2C:33-4 provides:




                                  33
          [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.

     In cases based on pure expressive activity, the amorphous

terms “alarming conduct” and “acts with purpose to alarm or

seriously annoy” must be defined in more concrete terms

consonant with the dictates of the free-speech clauses of our

Federal and State Constitutions.       Narrowly reading the terms

alarm and annoy -- as we have done in past cases involving

subsection (a) of 
N.J.S.A. 2C:33-4 -- will save the statute from

constitutional infirmity.    See Cesare, 
154 N.J. at 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 Hoffman, 
149 N.J. at 583)).       We

believe the Legislature would prefer a subsection (c)

prohibiting verbal harassment that conforms to the First

Amendment than no such provision at all.

     Therefore, for constitutional reasons, we will construe the

terms “any other course of alarming conduct” and “acts with



                                  34
purpose to alarm or seriously annoy” as repeated 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.   Of course, the

Legislature may decide to amend subsection (c) with other

language that conforms to the requirements of our free-speech

clauses.

     To be clear, the standard set forth above applies only in

those cases where the alleged harassing conduct is based on pure

expressive activity.   Under that standard, repeated threats or

menacing communications that reasonably place a person in fear

for his safety or security are not protected expressive

activities.   Likewise, a person who repeatedly makes unwanted

communications to a subject, thereby intolerably interfering

with his reasonable expectation of privacy, will not find

shelter behind the First Amendment.   Thus, a person who every

day, over the course of a week, either repeatedly yells outside

an ex-partner’s house during the night, or repeatedly follows

closely next to a woman importuning her for a date or making

other unwanted comments, despite constant demands to stop, would

violate subsection (c).

     Subsection (c) was never intended to protect against the

common stresses, shocks, and insults of life that come from

exposure to crude remarks and offensive expressions, teasing and


                                35
rumor mongering, and general inappropriate behavior.    The aim of

subsection (c) is not to enforce a code of civil behavior or

proper manners.

     The prosecution in this case targeted purely expressive

activity and therefore we apply the heightened standard of

subsection (c) set forth above.

                                  VI.

     We recognize that neither the municipal court nor Law

Division judge who sat in this case had the benefit of the

standard developed in this opinion.     They applied the statute as

written.   Although in other circumstances a remand might be

appropriate, we see no point here because even the most

indulgent view of the record favoring the State would not

support a harassment conviction under 
N.J.S.A. 2C:33-4(c).

     First, we note that, based on the issuance of separate

summonses, Burkert was charged with and convicted of committing

acts of harassment on discrete dates, January 8 and 11, 2011.

However, a conviction under 
N.J.S.A. 2C:33-4(c) requires the

finding of a “course of alarming conduct or of repeatedly

committed acts with purpose to alarm or seriously annoy.”

Neither the municipal court nor Law Division judge specifically

found that Burkert engaged in a course of conduct or repeatedly

committed acts.




                                  36
     The record soundly supports the municipal court’s finding

that Burkert circulated the flyers in the correctional

facility’s garage on January 8.    Although the municipal court

found that Burkert distributed the flyers discovered in the

locker room on January 11, no testimony was offered that Burkert

worked on that date.

     The record unquestionably supports the finding of the

municipal court -- echoed by the Law Division -- that the bubble

dialogue Burkert scribbled on Halton’s wedding photograph was

“lewd and obnoxious” and seriously annoyed Halton as it would

have any reasonable person.    Burkert clearly intended to

seriously annoy Halton because he believed that Halton’s wife

had insulted Burkert and members of his family on an internet

website.   The issue is not whether Burkert’s expressive activity

-- placing offensive dialogue on Halton’s wedding photograph and

then circulating the flyers -- was boorish, crude, utterly

unprofessional, and hurtful.    Of that there can be no doubt.

Within a workplace setting, such conduct was grossly

inappropriate.

     However, our task here is to determine whether Burkert

violated a criminal statute.    Even assuming that the circulation

of the flyers constituted a course of conduct or repetitive

acts, the State did not present sufficient evidence to support a

conviction under 
N.J.S.A. 2C:33-4(c).    The flyers were intended


                                  37
to and did humiliate Halton.   The flyers, however, did not

threaten or menace him.   Nothing in the record suggests that

Halton’s safety or security were put at risk by the flyers, or

that any inmates got ahold of them.

     The record, moreover, does not establish that Burkert had

repeated unwanted communications with Halton.   Burkert’s only

direct interaction with Halton concerning the flyers occurred on

January 8.   The rude and loutish dialogue on the flyers

obliquely referred to a matter apparently of common knowledge

among many corrections officers -- that Halton’s former wife

allegedly had relations with a corrections officer and inmate.

Although Burkert displayed appalling insensitivity, he did not

engage in repeated unwanted communications with Halton that

intolerably interfered with his reasonable expectation of

privacy.

     The facts in this case -- even when viewed in the light

most favorable to the State -- do not satisfy the elements

necessary for a subsection (c) violation of the harassment

statute.

     Having come to that conclusion does not foreclose other

potential remedies or sanctions for the behavior at issue in

this case.   Indeed, workplace discipline was imposed on Burkert,

and Halton filed a civil action.

                               VII.


                                38
     For the reasons stated, we affirm the judgment of the

Appellate Division, which dismissed the harassment charges.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE ALBIN’s opinion.
JUSTICE SOLOMON filed a separate opinion, dissenting in part.




                               39
                                      SUPREME COURT OF NEW JERSEY
                                        A-
6 September Term 2016
                                                 072467



STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

WILLIAM BURKERT,

    Defendant-Respondent



    Justice Solomon, concurring in part and dissenting in part.

    I agree with the majority’s conclusion that N.J.S.A. 2C:33–

4(c) (harassment statute) required clarification because

subsection (c)’s language is impermissibly vague when viewed

through the lens of First Amendment free speech protections.

However, even under the majority’s clarification of the

statutory requirements for subsection (c), I find that defendant

Burkert’s conduct violates the harassment statute.   Thus, I

respectfully dissent as to the majority’s conclusion that

Burkert escapes prosecution under the Court’s clarification of

N.J.S.A. 2C:33–4(c)’s statutory requirements.

    Preliminarily, as a reviewing court, we cannot “disturb the

factual findings . . . of the trial judge unless we are

convinced that they are so manifestly unsupported by or


                                1
inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice.”      Rova

Farms Resort, Inc. v. Inv’rs Ins. Co., 
65 N.J. 474, 484 (1974).

“However, legal issues are subject to de novo review; the

appellate court owes no deference to legal conclusions drawn by

the trial court.”   H.S.P. v. J.K., 
223 N.J. 196, 215 (2015)

(citing M.S. v. Millburn Police Dep’t, 
197 N.J. 236, 246 n.10

(2008)).   Here, Burkert admitted under oath that he created,

posted, and personally handed the offensive flyers to Halton.

The trial court found that Burkert circulated the flyers in the

parking garage of the correctional facility and in the employee

locker room.   Burkert further admitted under oath that he

created and posted these flyers only “as payback for what

[Halton] did to [Burkert’s] family.”   As the majority concedes,

“Burkert clearly intended to seriously annoy Halton.”   Ante at

___ (slip op. at 37).

    Burkert’s conduct conflicts with the majority’s enunciated

requirements of subsection (c)(1) -- “constru[ing] the terms

'any other course of alarming conduct’ and 'acts with purpose to

alarm or seriously annoy’ as any repeated communications

directed at a person that reasonably puts that person in fear

for his safety or security.”

    The flyers were copied and posted in the men’s locker room

and in the employee parking lot of Halton’s place of employment,

                                 2
the Union County Jail, where Halton worked as a sergeant.       As a

sergeant, Halton had frequent contact with inmates and held a

position of authority over other correctional officers.

Moreover, Burkert knew Halton’s position and duties within the

jail because they worked together for twenty years.    Thus,

Burkert knew that Halton’s safety could reasonably be threatened

by posting the flyers within the jail where co-workers and

inmates could easily see them.

    The content of the flyers, see ante at ___ (slip op. at 6),

was such as to inspire mockery and potential disobedience by

inmates.    Halton testified that the flyers made him fearful

because inmates might have seen or redistributed the flyers.

Halton testified that “inmates clean [the locker room] . . .

[s]o I was afraid that an inmate got a hold of it . . . part of

my anxiety [was] that they got a hold of it and they were

showing it to all the inmates in the jail and that my authority

was going to be undermined.”     Halton also testified that he felt

the flyers undermined his authority with co-workers as well,

which led him to fear that his safety at the jail was in

jeopardy.   As this Court stated in Cesare v. Cesare, although

“courts should not consider the victim’s actual fear, courts

must still consider a plaintiff’s individual circumstances and

background in determining whether a reasonable person in that

situation would have” felt fearful.     
154 N.J. 394, 403 (1998).

                                  3
Here, it was reasonable to find that Halton feared for his

safety considering he worked in a position of authority in a

county jail where Burkert distributed the two profane flyers.

    I now turn to the majority’s contention that the flyers

were not “repeated communications.”     New Jersey jurisprudence

has scant instruction on the boundaries of what constitutes

“repeated” conduct in the context of harassment.     What

instruction is available points toward a broad definition of

“repeated communications.”     See 
N.J.S.A. 2C:12-10(a)(2)

(defining “[r]epeatedly” as conduct “on two or more occasions”

in the context of stalking); Webster’s Second New College

Dictionary 939 (2d ed. 2001) (defining “repeat” as “[t]o do or

say something again”).   Therefore, “repeated” conduct, as

generally understood by a person of ordinary intelligence, is

conduct done more than once.    See State v. Goodwin, 
224 N.J.
 102, 112 (2016) (noting that, in construing statutes, courts

“ascribe to the statutory words their ordinary meaning and

significance” and view those words in context (quoting State v.

Crawley, 
187 N.J. 440, 452 (2006))).

    Although the majority does not directly cite to State v.

Hoffman, 
149 N.J. 564 (1997), to support a narrow construction

of “repeatedly,” Hoffman must be distinguished to avoid

confusion.   In Hoffman, this Court did not come to its holding

based on the number of mailings (two) the defendant sent to the

                                  4
victim.   
149 N.J. at 583.   Rather the Court found the two

mailings were insufficient to run afoul of N.J.S.A. 2C:33–4(a)

because the mailings “were not sent anonymously, or at an

extremely inconvenient hour, or in offensively coarse language”

-- thus, the mailings did not invade the victim’s privacy.

Ibid.

     However, as noted by the majority, N.J.S.A. 2C:33–4(c) was

modeled after Model Penal Code (MPC) Section 250.4(5).     See

State v. Robinson, 
217 N.J. 594, 606 (2014).   The comments to

MPC Section 250.4(5) provide three illustrations of conduct that

would fall within the subsection and be considered harassment.

MPC § 250.4 cmt. 5 (Am. Law Inst. 1980).   The illustrations

include “burning a cross on the lawn of a black family,”

“leaving animal carcasses on a neighbor’s stoop,” and “shining a

spotlight into a parked car in order to embarrass or frighten

the occupants.”   Ibid.   Using the majority’s logic in this case,

the MPC illustrations would not be harassment if the perpetrator

did not directly interact with the black family regarding the

cross burning or if the spotlight shone into the car illuminated

conduct that was “common knowledge” to some of the community.

The majority’s interpretation adds unreasonable and illogical

requirements to “repeated communication” under N.J.S.A. 2C:33–

4(c).



                                  5
    Burkert’s conduct also conflicts with the majority’s new

requirements for subsection (2) -- “repeatedly makes unwanted

communications to a subject that intolerably interfere with that

person’s reasonable expectation of privacy.”     New Jersey

recognizes a limited right to privacy in the workplace.       See

Stengart v. Loving Care Agency, Inc., 
201 N.J. 300, 322 (2010)

(finding plaintiff had reasonable expectation of privacy in “e-

mails . . . exchanged with her attorney on her personal,

password-protected, web-based e-mail account, accessed on a

company laptop”); Hennessey v. Coastal Eagle Point Oil Co., 
129 N.J. 81, 102 (1992) (finding employer’s safety concerns could

override employee’s right to privacy in mandating drug testing

in workplace); Bresocnik v. Gallegos, 
367 N.J. Super. 178, 183

(App. Div. 2004) (finding “a single hand-delivered letter to a

work place does not illegally invade privacy”).

    New Jersey also recognizes the common law tort of intrusion

upon seclusion.   Hennessey, 
129 N.J. at 94.    Although that tort

is not at issue here, its elements are instructive and are as

follows:   an “intentional[] intru[sion], physical[] or

otherwise, upon the solitude or seclusion of another or his

private affairs or concerns . . . if the intrusion would be

highly offensive to a reasonable person.”      Restatement (Second)

of Torts, § 652B (Am. Law Inst. 1977).   Because New Jersey case

law regarding privacy in the workplace focuses on the limits of

                                 6
illegal searches, intrusion upon seclusion is an illustrative

parallel to this case.

    I believe that, under New Jersey jurisprudence, it is clear

that Halton had a reasonable expectation of privacy in his

personal relationship with his wife.    Included in that

expectation of privacy is the expectation that his personal life

would not be brought into his place of employment for all of his

co-workers, and possibly inmates, to see, discuss, and ridicule.

Furthermore, unlike cases that have balanced an employer or the

public’s interest against the employee’s interest in privacy,

the employer in this case does not have a competing interest.

The flyers in this case served no overarching purpose or

interest other than to harass Halton.

    Thus, following subsection (2), Burkert’s conduct

constitutes the criminal act of harassment.    The communications

found in the flyers were “unwanted” by Halton.    The

communications were repeated, as previously discussed.     And the

communications “intolerably interfere[d] with [Halton’s]

reasonable expectation of privacy.”

    It is clear to me that Burkert’s conduct falls squarely

within the prohibited conduct of N.J.S.A. 2C:33–4(c) as

interpreted by the majority.   Therefore, I respectfully dissent.




                                7