Crime to Post “Indecent” Speech “About a Person” with “Purpose to Harass”?

The bill is what New Jersey Senate Bill 2469, introduced by Senator Donald Norcross (who is the Assistant Majority Leader) and Senator Nicholas Sacco, would provide:

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …

(2) sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person ….

Now recall that “indecent … material” is a broader category than just unprotected obscenity, and could include vulgarities and sexual innuendo; see FCC v. Pacifica Foundation (1978) (the “Seven Dirty Words” case), which interpreted a ban on “obscene, indecent, or profane language”:

The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to nonconformance with accepted standards of morality.

It seems quite likely that courts would likewise interpret “indecent” in “lewd, indecent, or obscene material” as similarly referring to more than just hard-core pornography, so long as the words “[do not conform] with accepted standards of morality.” And “purpose to harass” seems to be treated by New Jersey courts as simply meaning, purpose “to annoy or alarm,” as the New Jersey pattern jury instruction for criminal harassment cases, NJ-JICRIM 2C:33-4, states (“the defendant’s purpose was to harass (name of victim), in other words, to annoy or alarm (name of victim)”).

So if Larry Flynt had posted online the infamous Hustler magazine attack on Jerry Falwell (see Hustler Magazine, Inc. v. Falwell (1988)), and this law was in effect, the material might well lead to a criminal conviction: A jury might well find it to be “indecent” and said with a “purpose to harass.” (Flynt’s purposes may have been many, including a purpose to make a political commentary about a political figure, but it is reasonable to say that a purpose to annoy his political enemy might have been one of the purposes.) Likewise, the video parodying behavior in the City of Renton police department, which led to a search warrant aimed at uncovering its identity — later quashed after the matter was publicized — could be a crime, on the theory that it used “indecent” language about its subjects, supposedly with the purpose to “embarrass and emotionally torment” (the city’s theory) them.

As I argue in my One-to-One Speech, One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, many traditional criminal harassment laws — such as telephone harassment laws — are constitutional because they focus on unwanted offensive speech said to a particular person; such speech is unlikely to persuade, inform, or even entertain any listener, precisely because its only listener is the one being target for annoyance or offense. But when those laws are interpreted to punish speech said to the public about a person, they violate the First Amendment.

Here, though, there’s no need for the interpretation: The bill is specifically written to punish speech about any person, if it’s “indecent” and said with a “purpose to harass” the person. Blog posts about state legislators may qualify, online magazine parodies of religious leaders may qualify, videos criticizing police officers may qualify, and the list could go on. I hope the bill goes nowhere, despite the Assistant Majority Leader’s sponsorship. [UPDATE: I just learned that on Thursday the bill passed the Senate Law and Public Safety Committee by a 5-0 vote.] [FURTHER UPDATE: Someone who knows New Jersey politics tells me, “Norcross’s brother is one of the — if not the — power brokers in NJ politics, so anything with the Norcross name on it is instantly in jeopardy of passing.”]