Supreme Court clarifies when speech
in the workplace is harassment
When is offensive language in the workplace
also considered criminal harassment? Our Su-
preme Court recently clarified this issue in State
v. W. B. where the court issued new guidelines in
the interpretation and limits of the state’s harass-
ment statute, N.J.S.A. 2C:33-4(c). The court held,
as written, that New Jersey’s criminal harassment
statute was vague and overly broad and did not
place a “reasonable person on sufficient notice”
of the kind of speech that it proscribed.
The case involved a corrections officer who al-
tered photographs of a fellow corrections officer
and his wife – with the inclusion of derogatory
statements on the photographs. The two officers had been at odds for
years, partially as a result of union rivalries.
At the risk of being overly graphic, the words quoted by the Su-
preme Court in its decision must be used. Alterations were made to
the wedding pictures of the other officer and his wife, with speech
bubbles over the pictures with the following: “I know I’m a pussy with
a little dick,” and over his wife’s face were the words “I wish you had a
cock like the inmates.” These photographs were made into flyers and
circulated in the employee garage of the jail and the officers’ locker
room.
The targeted officer contended that the flyers caused him to be-
come emotionally upset and humiliated, and he filed criminal ha-
rassment charges as a result of the actions. Specifically, the charge
alleged that the perpetrator violated subsection (c) of N.J.S.A. 2C:33-4
by engaging in a “course of alarming conduct or of repeatedly com-
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mitted acts with purpose to alarm or seriously
annoy [a] person.” The municipal court entered a
guilty verdict as a 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” in violation of the statute. The Superior
Court similarly found the officer guilty beyond a
reasonable doubt after a de novo trial.
An appeal followed, and a panel of the Ap-
pellate Division reversed the conviction. It held
that while the language was juvenile and crude,
the commentary on the photographs was none-
theless constitutionally protected speech. Moreover, the Appellate
Division asserted that “the altered photograph...was not directed to
[the fellow officer],” but rather to an audience of other corrections
officers. Notably, the panel determined that the evidence did not sup-
port a finding that the photographs “were a direct attempt to alarm or
seriously annoy [the other officer] or to invade his privacy rights.” As
a result, the panel found that the “lewd” and “obnoxious” words add-
ed to the wedding pictures did not amount to criminal harassment.
The state sought review by the Supreme Court, which was granted.
The case attracted interest from an array of diverse groups across the
political spectrum which participated as amici curiae, or “friends of
the court.” In its decision, the Supreme Court agreed with the Appel-
late Division and concluded that the language on the flyers was con-
stitutionally protected from a criminal prosecution for harassment.
In reaching this conclusion, the court refined the statute’s scope