Court Dismisses Prosecution for Leaving Nasty Voice-Mails for Prosecutor, Suggests New York Telephone Harassment Statute Is Facially Unconstitutional

The case is People v. Louis, a New York trial court case decided Wednesday. This seems consistent with United States v. Popa (D.C. Cir. 1999), discussed in this post, and also (though the analogy is less direct, given the difference in the statutes involved) with the Nebraska Supreme Court People v. Drahota decision).

The defendant is accused of having committed a violation of PL §240.30(1), Aggravated Harassment [in the second degree]…. The supporting deposition in this case states, in pertinent part, the following:

… On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney’s Office … as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre-Louis…. In the voice mails, Nicolas Pierre-Louis yells, screams and uses profanity, stating in part, “I’m coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you’re holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre-Louis, so do your fucking job” and “when you lose your job bitch, don’t say I didn’t warn you,” and “I will rain hell on your office and make sure heads roll,” “you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre-Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre-Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney … because of the screaming outbursts of rage and anger directed toward [the other ADA] … and I [sic] and the content of what he was saying during his many calls.

“Speech is often ‘abusive’ — even vulgar, derisive, and provocative — and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be ‘abusive’ and intended to ‘annoy’; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.”

Having reviewed the supporting deposition containing the statements made by the defendant, the court is of the opinion that, though vulgar and vituperative in nature, the statements do not rise to the level of “fighting words” as described by Chaplinsky and Cohen nor do they rise to the level of a true threat. In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, “I’m coming at you with fury,” is too vague to be considered a true threat, but is more properly understood in context with the defendant’s other statements.

A person is guilty of the violation of Aggravated Harassment [in the second degree] when “with intent to harass, annoy, threaten or alarm another person, he or she either:

(a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication in a manner likely to cause annoyance or alarm.

The statute does not seek to distinguish between speech which is protected by the First Amendment and that which is not.

Historically, this statute has been supported in caselaw by asserting that the gravamen of the offense is in the act of invasion of the complainant’s privacy rights… [But i]n People v. Mangano, 100 NY2d 569, 571 (2003), the court recognized that this statute was unconstitutional, as it was applied to the defendant. In that case, the defendant left several messages in which the defendant “rained invective” upon two employees at a Parking Violations bureau. The court stated “… defendant’s messages were crude and offensive but made in the context of complaining about government actions, on a telephone answering machine set up for the purpose (among others) of receiving complaints from the public. We cannot agree with the People’s argument that appellant’s messages fall within any proscribable classes of speech or conduct.” Other courts have reached the same conclusion. See e.g., People v. DuPont, 107 AD2d 247 (App. Div. 1st Dept.) (harassment statute was void for vagueness and overbroad when applied to actions of defendant); People v. Yablov, 183 Misc 2d 880 (Crim. Ct. NY Cty) (statement “we’ll get you”, too vague to constitute harassment within the meaning of the statute); People v. Behlin, 21 Misc 3d 338 (Crim Ct Kings Cty) (statement that principal should watch it and that defendant was going to get her was insufficient to allege a violation of the statute).

On the federal level, courts which have considered the issue of the constitutionality of PL §240.30(1) have declared it unconstitutional on its face. See, Schlagler v. Phillips, 985 F. Supp 419 (SDNY 1997), revd on other grounds; Vives v. City of New York, 305 F. Supp2d 289, (SDNY 2003), rev’d on other grounds; Vives v. City of New York, 405 F3d 115, (2d Circ. Ct. App., 2004) opinion concurring in part, dissenting in part, in which J. Cardamone argues that court should have reached the issue of the constitutionality of PL §240.30(1), which he would have found was unconstitutional on its face:

A criminal prohibition on communicating in an annoying or alarming way is facially unconstitutional. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

It has been frequently argued as justification for this statute … that the conduct prohibited by the statute is a “trespass by telephone,” and that it protects the privacy rights of the complainant. This argument fails on a number of levels.

First, this statute has been used as a grounds for prosecution when no privacy rights were at issue, as is the case at bar. See, also, People v. Mangano, supra (statements which were made to employees working in an official capacity); People v. Dupont, in which the “harassment” was accomplished by publication of a magazine.

Secondly, the Legislature has made clear through amendments to the statute that its intent is to encompass those situations where a communication occurs, regardless of who initiates that communication. Such was the source of a prosecution where the communication was initiated by a principal to the parent of a student. See, People v. Behlin, supra. One would be hard-pressed to allege a violation of privacy rights in such a situation.

Thirdly, even in those cases in which calls are initiated by the defendant, there is no basis for asserting a “trespass by telephone.” Such a designation would be a prohibition based upon the content of the communication, since making a phone call, even uninvited to an individual is not a trespass. To create a trespass solely based upon the content of the communication would be violative of basic and fundamental principles of the First and Fourteenth Amendments.

Finally, the concept that “a showing that substantial privacy interests are being invaded in an essentially intolerable manner,” in the context of contemporary society, must be read to be more than just making an annoying phone call. Today, as many people in our society travel daily with their telephones in tow, making and receiving calls on the go, the privacy interests that may be impacted must be more carefully scrutinized.

To return to the case at hand, the defendant is alleged to have called an Assistant District Attorney and to have used abusive and crude language in expressing his discontent that Jessy Pierre-Louis had not been arrested for undisclosed crimes. The court has previously determined that the statements allegedly made by the defendant were not among those proscribed by prior caselaw. Rather, the calls alleged were made to the District Attorney’s Office on a telephone line used for the purpose of sending and receiving calls from the public. As such, this court finds that the statute is unconstitutional as applied to this case.

The vagueness and overbreadth of this statute is readily apparent. It cries out to be reworked, and sharply limited, to those areas where speech should be circumscribed. It is not enough that charges may be dismissed on a case by case basis. As opined in [an earlier precedent],

While it is argued that the statute’s unconstitutional overbreadth might be cured by restricting its reach to “fighting words” or other words which, by themselves, inflict substantial personal injury, such a “cure” would, indeed, be fraught with significant problems of its own. First, although to be sure, a statute ought normally to be saved by construing it in accord with constitutional requirements, it is basic that the very language of the statute must be fairly susceptible of such an interpretation; put otherwise, the saving construction must be one which the court “may reasonably find implicit” in the words used by the Legislature.

Accordingly, and consistent with First Amendment principles, this case is hereby dismissed.