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Court Weighs Allegations of First Amendment Violations

A New York Criminal Lawyer said that, the defendant is charged with two counts of aggravated harassment in the second degree for two separate incidents that occurred on June 17, 1998. The defendant was employed by a construction company as a telemarketer. His job was to do “cold-calling” to sell home improvement services. He telephoned each complainant in an attempt to sell such services. Both complainants separately refused to purchase home improvement services from defendant. When they did so, he called each one a “dumb nigger” and hung up. There are no further allegations of threatening or coarse language during the short duration of the respective phone calls.

A New York Criminal Lawyer said in June 23, 1998, the defendant admitted to the Detective that he did telephone each complainant and that he did call each complainant a “dumb nigger.” The defendant is a 49-year-old male with significant mental problems, who has been seen by a psychiatrist for many years and is under medication. In a letter from the defendant’s therapist, Elise Thompson, she states that this is not defendant’s usual manner of behavior, that he was under pressure the day he spoke with each complainant, and that the words were spoken out of frustration. Defendant’s employment has always been in the telemarketing field, with no prior complaints from customers.
A Nassau Criminal Lawyer said that, the defendant claims that his comments constitute protected speech under the First Amendment’s right of free speech and expression, and that an individual cannot be punished for biased thought or expression. Further, he contends that this case should be dismissed for legal insufficiency because there was no continuing series of calls evincing an intent to harass. The defendant seeks an order dismissing the accusatory instruments filed against him as being insufficient on their face, upon the ground that the allegations of the offenses charged do not constitute a violation of the statute.

A Nassau County Criminal Lawyer said that, the People claim that the informations should not be dismissed because they are sufficient, and thus there are no constitutional violations. The People contend that the defendant calling each complainant a “dumb nigger” is not protected speech because the State has an interest in protecting the rights of victims and discouraging crimes against them because of their race. Further, the People argue that there was intent on the part of the defendant to harass because this was not a single isolated incident, but rather, it was two separate incidents involving two separate complainants, although only one solicitation call was made to each complainant.

The issue in this case is whether the information should be dismissed for insufficiency of evidence.

A Staten Island Criminal Lawyer said this case involves two fundamental legal principles in conflict with each other: a person’s right to say what is on his or her mind, versus another person’s right to be left alone. This court must decide whether the instant criminal information alleges facts which could show that the defendant exceeded his right to free speech and, by his words, crossed over into the realm of unlawful conduct. The words uttered by defendant telemarketer in doing his single telephone solicitations with each of two complainants who declined the sales offer constitute protected speech under the First Amendment of the Constitution of the United States and article I, § 8 of the Constitution of the State of New York. The motion made to dismiss the information for insufficiency is granted as the words “dumb nigger,” though reprehensible, improper and uncalled for, do not rise to the level of aggravated harassment as defined by Penal Law § 240.30 (1).

The First Amendment of the United States Constitution guarantees “the freedom of speech.” Article I, § 8 of the New York State Constitution provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

Penal Law § 240.30 (1) provides:” A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: “1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, 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.”

Before determining whether the use of the phrase “dumb nigger,” standing alone, is statutorily permissible, the court must review the aggravated harassment statute itself, the primary purpose behind the statute, and any exceptions that have been carved out of the statute.

In order to convict someone under this statute, defendant must initiate a communication with the requisite intent to harass, while lacking a legitimate purpose for the communication. That was not the crux of the conversation here. In this case, the defendant called the complainants for a legitimate business purpose and the conversations ended up with the words “dumb nigger.” The calls were not “initiated” for the purpose of harassment, annoyance, threats or alarm, but rather for the legitimate purpose of soliciting business.

Defendant argues that the sufficiency of the accusatory instrument does not meet the standard required by the statute. “An information is sufficient on its face if it contains non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe the defendant committed every element of the offense charged.” The defendant relies on a 1996 case decision because it alleged merely a single incident, and there was not a continuing series of calls constituting a series of events evincing defendant’s intent to harass, threaten or alarm another person. In general, one isolated incident is not legally sufficient to sustain a conviction for aggravated harassment. However, criminal liability may be imposed for making a single telephone call only if the call is placed with requisite intent to harass, annoy, threaten or alarm, where there was a lack of legitimate purpose for the call in the first instance. Had the defendant called a complainant without the solicitation of a sale, and simply said “dumb nigger” and hung up, that would show intent to harass. The Legislature intended to proscribe repeated calls to a residence that might drive a person to distraction. Telephone calls may be considered harassment when there is a barrage of threatening telephone calls by the defendant at all hours of the day and night.

Thus, despite the statutory reference to a single telephone call, the statutory provision and its history readily permit characterization as a continuing offense over time. Defendant, who made just one call with a brief solicitation to each complainant, does not establish a course of conduct. There was no continuing series of calls indicating intent on the part of the defendant to harass the complainants, nor was there any allegation that one single business solicitation evinced a lack of legitimate purpose. In the absence of the intent, there is no crime, even if the complainants felt harassed, annoyed, threatened or alarmed as a result of the defendant’s telephone calls. By including a specific intent element in the statute, the Legislature has removed the possibility that a defendant could be unaware of his criminal conduct. This specific intent element also removes the possibility that criminal liability would be imposed based on the unascertainable sensitivities of the victim.

Penal Law § 240.30 is intended to include communications which are obscene, communications which are directed to an unwilling recipient under circumstances wherein “`substantial privacy interests are being invaded in an essentially intolerable manner,'” and communications “`which by their very utterance tend to incite an immediate breach of the peace.'” The communication must also be made “`in a manner likely to cause annoyance or alarm,'” and “`with intent to harass, annoy, threaten or alarm another person.'” It also includes threats which are unequivocal and specific. The communications between defendant and complainants do not fit into any of these circumstances and is therefore not prohibited by the statute. Defendant’s statement contained no threats, nor invaded complainants’ privacy in an intolerable manner. The comment made by the defendant to the complainants, although offensive and uncalled for, is a mere opinion which is not “likely to cause annoyance or alarm” within the meaning of the statute.

Rude and angry words are not enough to constitute aggravated harassment. Not every scurrilous or unsavory communication concerning an individual, no matter how repulsive or in what degree of poor taste, necessarily constitutes criminally harassing conduct. Words must be legally obscene or “fighting words” in order to be exempt from the category of protected speech. While not every resort to epithet or personal abuse will be viewed as communication safeguarded by the Constitution, the “fighting words” exception will apply where the expression of ideas was accomplished in a manner likely to cause a breach of the peace. Defendant’s comment was neither a violent nor a potentially violent act.

Even if the words are imprudent, thoughtless, tasteless, or just plain angry, as in this case, so long as they were not legally obscene, or fighting words, and did not intrude without a legitimate purpose into the privacy of one’s home, they are constitutionally protected. Taken in context, “nigger” is not equivalent to “fighting words.” It is only where words are uttered as a deliberate challenge to a breach of the peace, with communication of thought a mere incidental concomitant that a prosecution may lie. To pass constitutional muster, the offending words must be calculated to provoke a reasonable person into an immediate and violent breach of the peace and have no other purpose. The language or conduct must, by its nature, be of a sort that is a substantial interference with the reasonable person. Annoying behavior is not enough to support a charge of harassment. While neither poor judgment nor bad taste is condoned by the court, the court will not criminalize such behavior where to do so would exceed the fair import of the statutory language defining the offense of harassment.

The evidence in this case fails to establish that defendant uttered the words “dumb nigger” with the intent that such language would provoke a reasonable person into an immediate and violent breach of peace, as required for defendant to be convicted under the aggravated harassment statute.

In this case, the statute should be given a clear and definite construction limiting its reach to constitutionally proscribable fighting words. Defendant was not charged with making threats of physical harm or other conduct which can be characterized as anything more than angry verbal outbursts. While the remarks made by the defendant were crude and even insulting to the recipients, they are nevertheless constitutionally protected speech. Defendant’s words do not fall within the scope of constitutionally proscribable expression. His statement was not confirmed by any other words or acts showing that it was anything more than a crude outburst after being turned down. Defendant called each complainant a “dumb nigger” apparently out of frustration. However, venting anger and frustration by hurling insults may be unpleasant and crude, but that, in and of itself, is not harassment, but simply a natural human reaction and an exercise of First Amendment rights.

The expression of controversial and unpopular views is precisely what is protected by both Federal and State Constitutions. The mere fact that defendant, in anger or frustration, used colorful language in registering displeasure with complainants’ refusal to purchase the home improvement services does not render the communication criminal within the ambit of the Penal Law.

The statement, “dumb nigger,” made by defendant to complainants at the conclusion of the business solicitation telephone conversations does not rise to the level of the crime of aggravated harassment under Penal Law § 240.30 (1). Such statement, under the circumstances alleged, is protected by the legal principle of freedom of speech guaranteed by the First Amendment of the United States Constitution and by article I, § 8 of the New York State Constitution.

Viewing the facts and circumstances of this case in a light most favorable to the People, it is clear that the accusatory instruments must be dismissed as a matter of law.

If you are a victim of harassment. Seek the legal advice of a Nassau Criminal Attorney and Nassau Order of Protection Attorney at Stephen BIlkis and Associates.

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