Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, July 28, 2011

Verbal Harassment and Disorderly Conduct: Crimes of a Different Era

In this New York trial court decision, People v. Louis, the court held that a defendant's abusive, vulgar, and (in my opinion) threatening phone messages to an assistant district attorney in Nassau County constitute protected speech under the First Amendment.  Over a two-month period, the defendant left screaming expletive-laden phone messages directed specifically at the ADA that included these statements: ""I will rain hell on your office and make sure heads roll"; "I'm coming at you with fury" (but really, check out the case -- I'm not doing it justice).  The defendant was charged with Aggravated Harassment in the Second Degree.  The court ruled that this series of messages did not rise to the level of a true threat (e.g., Chaplinsky) against the ADA, and held further that the harassment statute was unconstitutionally vague and overbroad.

When I was an ADA, I remember charging defendants with the offense of disorderly conduct.  The charge applied when a person engaged in violent, threatening, or "tumultuous" behavior in a public place.  There was also another component of the statute which had been held unconstitutional by the time I began to work, proscribing the use of vulgarity or abusive language toward another person in public.  The harassment statute here is different in that it involves private conduct and the reason it is second degree harassment has to do with the non-face-to-face nature of the communication.  

I think these kinds of crimes -- verbal harassment, disorderly conduct, and the like -- are on their way out.  They depend on notions of privacy, social distance, and personal decorum which will not, in the long run, be powerful enough to resist the combination of increasingly broad speech rights and the cultural idea that there are fewer and fewer zones in which people can reasonably expect to be private or shielded from human ugliness. 

Two quick qualifications: (1) I am not making the crusty claim that no one out there believes in the importance of personal decorum any more; I'm making the much more limited point that though many people do still think it important, when it buts up against a free speech interest, it is comparatively weaker than it was in times past -- and that eventually it will become so weak as to be deemed an unconstitutional interest as weighed against free speech; (2) this still leaves open prosecution for the pure, or "true," threat.  When I read the Louis decision, that speech seemed quite threatening to me.  Obviously the judge disagreed.  But I expect that the quality of speech constituting a criminal threat will continue to be tightened with time -- that the standard will become more and more demanding, again in response to the rising strength of the right to free speech and the concomitant disintegration of the idea that social decorum demands any legal protection. 


DeGirolami, Marc | Permalink

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I agree with the prediction in this post, but I think it's a good thing. Disorderly conduct charges almost always strike me as a "we don't like you much, and we think you're a bad person, but we can't think of a real crime to charge you with. So we'll say you were being 'disorderly.'"

Posted by: Andrew MacKie-Mason | Jul 28, 2011 10:42:08 AM

It's funny how some people complain about a lack of free speech in this country (see the to-do over dancing in the Jefferson Memorial). There has probably never been a time or place where free speech is as protected as it is America today.

Posted by: Asa Smith | Sep 2, 2011 10:35:38 AM