OPINION OF THE COURT

As a general matter, Americans are free to say and to write bad things about each other. Our right to free speech is protected by the First and Fourteenth Amendments to the U.S. Constitution. Article I Section 8 of the New York State Constitution is less familiar to the general public than the First Amendment, but it similarly declares: "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 the press".

In this case the People charge that the defendant Linda Bethea posted numerous hand-written fliers that said some very bad things about Kareem Williams. It appears that Mr. Williams used to be Ms. Bethea's boyfriend and is the father of her child. The fliers indicate in colorful language that defendant Bethea hates Mr. Williams chiefly because she believes that he has failed to live up to his obligation to help support their child. The fliers include Mr. Williams' picture and read:

Wanted for child support, Kareem Williams... Last seen

fucking some whore bitch he pick up. Like all deadbeat

he thinks he some kind of pimp daddy. He lives off people.

And when he gets a dollar, he acts like he is God. That's

how you can tell he a asshole, not use to shit. Any information

please call Child Support Hotline 212-226-7125.

Kareem Williams

The fliers also list Mr. Williams' date of birth, social security number, address and phone number.

Based on the foregoing defendant Bethea has been arrested and charged with Aggravated [*2]

Harassment in the Second Degree in violation of Penal Law §240.30(1) and Harassment in the Second Degree in violation of Penal Law §240.26(3). Defendant now moves to dismiss the Complaint as facially insufficient. For the reason detailed hereinafter, the motion is granted.

The standard applicable to a motion to dismiss is familiar and therefore will not be repeated here.

As to the charge of Harassment, the statutory provision relied upon by the People requires the People to show that defendant engaged in a course of conduct that annoys or alarms another person and that serves "no legitimate purpose". (Emphasis added).

Here, the Complaint does not allege that Mr. Williams was in fact annoyed or alarmed, and the Complaint is thus facially defective. However, that defect could likely be easily overcome by simple amendment because it seems very probable that Mr. Williams was indeed very annoyed; otherwise he would not have had Ms. Bethea arrested.

More important, accepting as true all the allegations of the Complaint (as the Court must on this motion), the Complaint does not show that defendant had "no legitimate purpose." See People v. Stuart, 100 NY2d 412, 428 (2003) (the phrase "no legitimate purpose" means "the absence of a reason or justification to engage someone other than to hound, frighten, intimidate or threaten.") To the contrary, the Complaint affirmatively demonstrates that defendant's self-evident purpose was to criticize, denounce and humiliate Mr. Williams because defendant believes he has been a poor father to their child. (Defendant may also have wished to enlist the aid of the Child Support Hot Line in locating Mr. Williams, but it is not clear whether her reference to the Hot Line was purely sarcastic.) That purpose is lawful and legitimate because Americans are, after all, free to criticize one another. See People v. Hogan, 172 Misc.2d 279 (Crim. Ct., Kings Co. 1997), aff'd 181 Misc.2d 388 (App. Term, 2d Dept. 1998) (the "registering of displeasure with another is legitimate protected speech") (emphasis added).

The Aggravated Harassment charge must fall for different but related reasons. It has

long been recognized that the statute presents important constitutional concerns because in many cases it prohibits speech. The statute in relevant part makes it a Class A Misdemeanor (punishable by up to one year in prison) for a person acting with the intent to annoy or alarm another to make a written (or telephonic) communication that does annoy or alarm. If read literally, the statute would apply to all sorts of communications that plainly should not be regarded as criminal and that are clearly protected by the First Amendment. For example, as a literal matter, a sports writer who writes an article calling for his local team's manager to be fired might be guilty of Aggravated Harassment because his article was intended to annoy and did annoy the manager. Similarly, many "lawyer's letters" - - stating one party's grievances against the other and demanding action - - are designed in part to annoy or alarm and thus could fall within the literal scope of the statute. As an example closer to home, many rebellious teenagers and young adults go through a phase during which virtually every other day they call home with words calculated to cause their parents annoyance or alarm (or, ideally, both).

Accordingly, the Aggravated Harassment statute has been and must be read narrowly so as not to intrude on constitutionally protected speech. The statute was held to be constitutional in People v. Smith, 89 Misc.2d 789 (App. Term, 2d Dept. 1977), cert. den. 434 U.S. 920 (1977), [*3]because the courts have in essence read additional elements into the statute. Specifically, the courts have held (consistent with both constitutional requirements and with the Legislature's Staff Commission Report that accompanied the statute) that in order to constitute "aggravated harassment" a communication must both annoy and alarm and must fall within one of several recognized categories of speech that may properly be prohibited consistent with the First Amendment:

We conclude that subdivision 1 was intended to include

communications which are obscene; threats which are

unequivocal and specific; communications which are

directed to an unwilling recipient under circumstances

wherein 'substantial privacy interests are being invaded in an

essentially intolerable manner'; communications which by

their very utterance tend to incite immediate breach of the

peace; and written communications intended to stimulate

court process of any kind. The communication must, of

course, also be made in a manner likely to cause annoyance

or alarm and with intent to harass, annoy, threaten or alarm.

As so construed, subdivision 1 does not, in our opinion, suffer

from constitutional infirmity.

Smith, 89 Misc.2d at 791-792 (internal citations omitted). Accord People v. Miguez, 153 Misc.

2d 442 (App. Term, 1st Dept. 1992).

The Court of Appeals in People v. Dietze, 75 NY2d 47, 50 (1989) reinforced the point that speech that is merely annoying or alarming, without more, cannot be punished:

Speech is often vulgar, derisive and provocative - - yet

it is still protected under the State and Federal Constitutional

guarantees unless it is also much more than that... casual

conversations may be 'abusive' and intended to 'annoy';

so too may 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 or penalized.

As a consequence of these constitutional considerations, the most familiar factual situation that gives rise to a prosecution for verbal "harassment" is one where the words in question are "fighting words" that will likely lead to an immediate breach of the peace; the other typical form of Aggravated Harassment is where a defendant makes a series of unwanted phone calls that invade the privacy of the victim's home. Thus (with some limited exceptions briefly noted below), a charge of harassment usually involves a communication made by the defendant directly to the victim: [*4]

The basis of the crime of harassment - a penal sanction that

punishes the exercise of speech - is that the prescribed conduct

is likely to lead to a breach of the peace. This rationale, of

course, loses much if not all of its force where the language

complained of is not heard by or directly aimed as the complainant.

Thus constitutionally protected speech which cannot incite to

violence because it is not communicated to the complainant

may not form the basis for criminal prosecution... Without

direct communications to the complainant a harassment

conviction cannot be sustained.

People v. Viau, 50 NY2d 1052, 1054 (1980) (Cooke, Chief J., concurring).

The decision in People v. Dupont, 107 AD2d 247 (1st Dept. 1985) elaborates on these principles in a case very similar to the present one. Defendant Dupont was convicted of Aggravated Harassment because he distributed by hand a magazine called "Now East". "Now East"contained a number of stories and comics criticizing and lampooning Dupont's former attorney and identifying that attorney as a homosexual. The Appellate Division noted that the right of free speech embraces the right to distribute literature, including literature that may be annoying, distasteful or critical of others. "Plainly 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. Where the interests of an individual are harmed, there may be a civil remedy by action for damages or injunctive relief. The criminal law may not be applied for this purpose. The harassment statute was not meant as a substitute for the laws of defamation." Accordingly, defendant DuPont's conviction was set aside.

Like defendant Dupont's "magazines" about his former attorney, defendant Bethea's fliers may be defamatory; they might on the other hand be true. But, in either event, they do not involve any threat of violence against Mr. Williams, and they do not ask any other person to commit any act of violence against Mr. Williams. Similarly, defendant's fliers do not invade the privacy of Mr. Williams' home. Defendant's fliers thus do not fall within any of the categories of speech set forth in Smith that may properly be regulated without invading freedom of expression. Admittedly, Mr. Williams may very well be extremely annoyed (or alarmed) that Ms. Bethea is criticizing him in public. But that does not mean that Ms. Bethea is guilty of Aggravated Harassment or any other crime. At most, Mr. Williams' remedy is a civil action for defamation or the like. Dupont. Accord People v. Rissman, NYLJ, Nov. 5, 1998, p.23, col.2 (Crim. Ct., Queens Co. 1998). See also People v. Goldstein, 196 Misc.2d 741 (App. Term, 2d Dept. 2003).

It is also worth noting that the People do not allege that defendant communicated directly with the complainant Mr. Williams. Like Chief Judge Cooke's concurring opinion in Viau, DuPont strongly suggests that a harassment charge must always involve comments made directly to the victim himself:

The harassment statute in all its various formulations,

including the present codification, does not appear to have been

relied upon as the basis for punishing any but annoying

and harassing communications transmitted directly to the

present complainant. It was not designed to prevent dissemination, [*5]

let alone publication, of vexatious material about an individual.

107 AD2d at 252.

This suggestion may be slightly overbroad. In the last few years there have been a handful of "oddball" cases where, under peculiar circumstances, communications made to some one other than the victim may nevertheless be sufficient to make out a harassment charge. See People v. Ort, NYLJ, June 26, 2003, p.27 col. 4 (Nass. Co. S Ct.) (posting of racist literature intended to intimidate black potential home buyers constitutes Aggravated Harassment); People v. Singh, 187 Misc.2d 465 (Crim. Ct., Kings County 2001) (call to Child Abuse Hot Line worker threatening to kill judges and lawyers constitutes Aggravated Harassment); People v. Kochanowski, 186 Misc.2d 441 (App. Term, 2d Dept.), lv. den. 95 NY2d 965 (2000) (posting internet message importuning others to harass complainant is a crime).

But the general rule still holds true; it is simply not a crime merely to speak or write bad things about another person.

Motion granted. Case dismissed.

This Opinion constitutes the Decision and Order of the Court.

Bronx, New YorkEthan Greenberg, J.C.C.