N.Y. judge: Aggravated-harassment law ‘cries out to be reworked’

Tuesday, August 2, 2011

A man who left profane telephone messages with an assistant district attorney in Nassau County, N.Y., has had his aggravated harassment charges dismissed by a New York court. The judge reasoned that the law was unconstitutional on First Amendment grounds.

Between February and April 2010, Nicolas Pierre Louis left a series of telephone voicemail messages with an assistant district attorney. Louis yelled and screamed threats and profanities at the attorney. Louis was upset that the district attorney would not arrest a person identified only as Jessy Pierre Louis. The opinion doesn’t explain the relationship between Jessy Louis and Nicolas Louis.

The assistant district attorney, not named in the court’s opinion, said he or she believed the messages were a threat and feared for his or her safety. This fear led to Nicolas Louis’ being charged with violating a state harassment law, which says that a person is guilty of aggravated harassment when:

“with intent to harass, annoy, threaten or alarm another person, he or she either:

(1)   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

(2)   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.

Louis contended that his statements did not rise to the level of fighting words or a true threat. He also argued that the aggravated-harassment statute was unconstitutional because it was too vague and too broad.

Judge Valerie Alexander of the District Court of New York, 1st District, Nassau County, agreed in her July 25 decision People v. Louis. “A criminal prohibition on communicating in an annoying or alarming way is facially unconstitutional,” she wrote.

“The vagueness and overbreadth of this statute is readily apparent,” she said. “It cries out to be reworked, and sharply limited, to those areas where speech should be circumscribed.”

The Nassau County District Attorney’s office argued that the law could be saved by construing it narrowly to apply only to unprotected categories of speech, such as fighting words. However, Alexander wrote that “it is basic that the very language of the statute must be fairly susceptible of such an interpretation.”

Alexander said the statute was not written with nearly enough precision to accord with basic free-speech principles.

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