“Harassment” Prosecution for Anti-Gay Speech About a Political Candidate?

[UPDATE, July 15, 2011: I’ve just gotten and posted a copy of the criminal complaint, which is consistent with the story quoted below. Note that the complaint does refer to the candidate as the “victim,” which suggests that the objection is to the supposed annoyance to the opposing candidate, not to the recipients of the flyers.]

The Bergen County Record (N.J.) reports:

The Hawthorne Police Department filed two counts of harassment charges in the fourth degree on June 9 against a primary candidate.

The charges against Phillip Speulda, who ran against Democrat Robert Van Deusen for council in Hawthorne’s Ward 2, are for mailing and personally distributing campaign literature with the purpose to harass another. According to a court document, Speulda sent fliers to residents of the 2nd ward that contained “a picture of the victim, who was running for borough council, in a tub with two men knowing the victim was homosexual” and made communications in a manner likely to cause annoyance specifically by going door to door to residents of the 2nd ward and handing out literature that made reference to “the victim’s sexual orientation knowing that the victim was homosexual.” …

“Through police investigation, the campaign literature was discovered in the Ward 2 area and was distributed specifically to at least two people who had signs supporting Van Deusen on their lawn and to people who didn’t have signs, but signed a petition in favor of him,” [police captain Richard] McAuliffe said.

If Speulda is found guilty he may be subject to a fine….

“We feel he specifically targeted people who supported Van Deusen and in the manner he was doing it was to likely cause annoyance or alarm,” McAuliffe said.

The campaign flyer appears to be the one I include at the bottom of this post; the criminal statute appears to be N.J. Stat. § 2C:33-4:

[A] person commits … offense if, with purpose to harass another, he … [m]akes, 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; …

Unless there’s something here that’s well beyond what the newspaper article reports, Speulda’s behavior seems to be clearly protected under the First Amendment. People are free to criticize candidates for office, including based on the candidates’ sexual orientation, and including when the content of the message is “likely to cause annoyance.”

That’s true even when the supposedly annoyed party is a homeowner who is being approached with a message critical of a candidate that he has endorsed; the homeowner is free to tell the distributor of the message to leave, and a distributor who doesn’t leave could be prosecuted for trespass, regardless of what the message says. But the distributor can’t be prosecuted on the grounds that the content of his message is likely to annoy some voters. And that’s certainly true when the supposed “victim” is the candidate who’s being criticized.

If you know more about the case, please let me know; I’m trying to get a copy of the quoted court document, but dont have it yet. (Note also that the article seems to contradict itself in some measure as to the degree of the offense: It starts by saying the charges were of “harassment … in the fourth degree,” which suggests that subsection e of the statute — “[a] person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment or was on parole or probation” — is applicable. But it later says that the “investigation resulted in two harassment complaints, which are disorderly person offenses,” and the offense is a petty disorderly person offense if subsection e is not applicable.)