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Is Speech in the Workplace Protected, or is it Harassment?

On December 19, 2017, the Supreme Court of New Jersey, in State v. W.B., (A-6-16) (077623), redefined the limits of the State’s harassment statute, N.J.S.A. 2C:33-4(c), when it concluded that the statute was vague, broadly worded, and did not place a “reasonable person on sufficient notice” of the kinds of speech that it proscribed.

More specifically, in W.B., Defendant W.B., a corrections officer, altered photographs of a fellow corrections office and his wife – with the inclusion of derogatory statements on the photographs. These photographs were made into flyers and dispersed in the employee garage of the Union County Jail and the officers’ locker room. The alleged victim, G.H., filed criminal harassment charges against W.B. as a result of W.B.'s actions. Specifically, G.H. alleged W.B. violated subsection (c) of N.J.S.A. 2C:33-4 by engaging in a “course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [a] person.” The municipal court entered a guilty verdict against W.B. for harassing G.H. in violation of N.J.S.A. 2C:33-4(c). The municipal court found the comments on the photograph to be “lewd” and “obnoxious” and that the comments would “seriously annoy any person.” Subsequently, the Superior Court found W.B. guilty beyond a reasonable doubt after a de novo trial.

An appeal followed and a panel of the Appellate Division reversed W.B.'s conviction concluding, inter alia, that the commentary on the photographs was constitutionally protected speech. Moreover, the Appellate Division asserted that “the altered photograph . . . was not directed to [G.H.]”, but rather, to other corrections officers. Notably, the panel determined that the evidence did not support a finding that the photographs “were a direct attempt to alarm or seriously annoy [G.H.] or to invade his privacy rights.” Moreover, the panel found the commentary did not amount to criminal harassment.

The State filed a petition for certification with the Supreme Court, which was granted, and after oral argument, the Supreme Court opined that the language on the flyers was constitutionally protected from a criminal prosecution for harassment. The Supreme Court redefined the statute and created a clear standard for permissive expressive speech. More specifically, the Court stated that this statute gave prosecuting authorities undue discretion to bring charges related to permissive expressive activities. In other words, this statute had the capacity to chill permissible speech. The Court reasoned “alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined 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” in order for such acts to be unlawful. Otherwise such conduct – while annoying – constitutes permissive expressive activity. Accordingly, the Supreme Court affirmed the Appellate Division’s decision, which dismissed the charges against W.B.

However, employees must be mindful that their speech – although potentially protected by the First Amendment – could result in disciplinary action. As in the case discussed above, although W.B. ultimately avoided the criminal penalty, he was, nonetheless, suspended by his employer for his conduct. If you have any questions as to how these changes impact you, the experienced attorneys at the Zazzali Firm stand ready to answer any questions you may have and, if necessary, help you to enforce your rights.

©2018 Zazzali, Fagella, Nowak, Kleinbaum & Friedman. Blog is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the Zazzali Law Firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of the Zazzali Law Firm.

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