Defendant is charged with Aggravated Harassment pursuant to Penal Law §240.30(1)(a) which allegedly occurred August 20,2012. It is alleged that Mr. [Barboza] signed a traffic payment correspondence with the words “FUCK YOUR SHITTY TOWN BITCHES” written across the top.
The aforesaid section of law is intended to prohibit communication “… with a person, anonymously or otherwise, by telephone or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.”
Defendant now moves to dismiss together with other relief.
Without doubt the Defendant’s comment was crude, vulgar, inappropriate, and clearly intended to “annoy”. Nevertheless, it is not a threat, it does not contain “fighting words”, or create an “imminent danger”. While it might seem to fall within the four corners of the aforesaid statute, it is nevertheless subservient to the First Amendment of the United States Constitution which provides for and allows a broad range of “free speech” in the nature of opinion and public comment.
Defendant has submitted an extensive brief with numerous citations. However, no citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected. The charge is dismissed.
The government had argued in state court that the prosecution was constitutionally proper; you can see Barboza’s motion to dismiss, which seemed to me quite well done, and the state’s opposition, which struck me as quite weak.
Barboza is now suing in federal court, arguing that his arrest violated the First Amendment and the Fourth Amendment. (The Fourth Amendment argument turns on the First Amendment argument, since the theory is that, because the statute couldn’t constitutionally be applied to the speech, the arrest for violating the statute lacked a sufficient basis.) From his Complaint:
8. On May 4, 2012, plaintiff was driving his vehicle on State Route 17 through the Town of Liberty. He was pulled over for speeding.
9. In early June 2012, plaintiff pled guilty by mail to the speeding ticket.
10. In August 2012, the Town of Liberty Court sent plaintiff a letter that accepted his guilty plea and provided information for payment of the fine. The letter also contained a payment form for plaintiff to complete in connection with his guilty plea.
11. On or about August 20, 2012, plaintiff filled out the payment form that accompanied the Town Court’s letter. Expressing frustration at the Village of Liberty, in sending in the paperwork in connection with his guilty plea, plaintiff wrote on the form, “FUCK YOUR SHITTY TOWN BITCHES.” He also crossed out the Town’s name, “Liberty” from the form, and wrote “TYRANNY” instead. Plaintiff then mailed in the form….
13. On September 26, 2012, Town of Liberty Justice Brian P. Rourke advised plaintiff in writing that his payment by mail was rejected and that he was ordered to appear in Town Court on October 18, 2012.
14. As directed, plaintiff appeared in the Town of Liberty Court in the early afternoon on October 18, 2012, driving approximately two hours from his home in Connecticut in order to make the appearance. In open court, Justice Rourke held up plaintiff’s payment letter and lectured him about plaintiff’s language. At this time, defendants Steven D’Agata and Melvin Gorr arrested plaintiff for aggravated harassment and placed him in handcuffs inside the courtroom, in full view of the approximately 30 to 40 individuals who had to appear in court that day.
15. Defendants D’Agata and Gorr next escorted plaintiff from the courtroom and brought him to the Village of Liberty police station, where he was booked and fingerprinted and handcuffed to a bench.
16. After processing the plaintiff, defendant Gorr took plaintiff back to Town of Liberty Court where Justice Rourke told plaintiff that he was recusing himself from the case since he was party to it. Defendant Gorr then drove a handcuffed plaintiff to the Town of Fallsburg Court for arraignment. While driving plaintiff to the Town of Fallsburg Court, defendant Gorr told plaintiff that he did not engage in free speech because his written comment on the payment form had offended employees in the clerk’s office.
It seems to me that letters to government offices must be protected by the First Amendment, even if they are rude and offensive (at least unless they fall within the “true threat” exception to the First Amendment); for cases so holding, see United States v. Popa (D.C. Cir. 1999) (a case involving racist voice-mail left for then-U.S. Attorney Eric Holder) and State v. Drahota (Neb. 2010) (a case involving rude e-mail sent to a candidate for office). For my article on criminal harassment laws and the First Amendment generally, see here.