Legal News

New Jersey Supreme Court Weighs in on the First Amendment Rights of Law Enforcement Officers
By Timothy Smith, Esq.

If a corrections officer distributes a flyer to his fellow officers that calls a particular corrections officer’s wife a whore, can he be criminally prosecuted for the offense of harassment, in addition to being disciplined by the department? The answer is no, according to a recent New Jersey Supreme Court case.

The case involved a long-simmering feud between two officers at a county jail. One, let’s call him Officer Smith, decided to seek revenge against the other, let’s call him Officer Jones, for some rather nasty social media postings by Jones. Smith exacted his revenge on Jones by leaving flyers all over the jail parking lot, and in the men’s locker room, that called Jones’s wife a whore. Of course, and as to be expected, those flyers did not sit well with the jail administration. As a result, Smith was disciplined for his unbecoming conduct. He lost several days’ pay. But Jones was not satisfied with the extent of the punishment meted out to Smith because Smith was allowed to keep his job. So, Jones took his grievance to the local municipal court. There, he filed a disorderly persons complaint against Smith. His complaint charged Smith with harassment. More specifically, Jones alleged that Smith’s actions in distributing the insulting fliers in the parking lot and in the locker room constituted a course of alarming conduct intended to seriously annoy Jones. Hence, Smith had committed the offense of harassment.

Smith was convicted at trial. The case eventually made its way to the New Jersey Supreme Court. That court readily agreed with Jones that Smith’s conduct was obnoxious. The court also pointed out that Smith was properly disciplined for his actions by his superiors. But, there was no getting around the fact that Smith’s conduct amounted to an exercise of his right under the Constitution to speak his mind. After all, distributing flyers is a core example of engaging in free speech, just like raising a protest sign on the street. Hence, the New Jersey Supreme Court explained, while Smith could be disciplined by the administration for his speech, such discipline was a civil punishment, not a criminal punishment. But when it comes to criminal punishment, involving even the possibility of jail time, the First Amendment stands in the way. The First Amendment simply does not allow for the criminalization of speech, except for narrowly drawn exceptions. That means that obnoxious speech intended to hurt someone’s feelings cannot be the subject of a criminal complaint. As long as that speech does not cross the line into a true threat to the other person’s safety, or does not invade that other person’s privacy (such as repeated phone calls in the middle of the night to a person’s home), such speech may be uttered without fear that it will result in the filing of a criminal complaint.

Hence, while departmental morale is a vital interest and any conduct, even speech, that might be inimical to that morale can lead to disciplinary hearings, criminalizing speech is a different matter. When it comes to the criminalization of speech, the First Amendment protects the right of a person, even a law enforcement officer engaged in speech while on the job, to be a jerk. In other words, you can be fired for being a jerk, but (with limited exceptions) you can’t be thrown in jail for being a jerk.

A final word of caution is necessary. Don’t try this at home. Every fact pattern is different and so the outcome of any particular set of facts can never be predicted on the basis of reading an article. Of course, it is never a good idea, under any circumstances, to be a jerk.

Timothy R. Smith, a certified criminal trial attorney (less than 1% of New Jersey lawyers have satisfied the rigorous requirements necessary to achieve such a designation), devotes much of his practice to criminal and disciplinary defense. Smith was formerly employed as a police officer, detective, police union president and member of a prosecutor’s office legal staff prior to transitioning into private legal practice. Smith has served as an adjunct professor of graduate studies at Seton Hall University. He has also served as a private consultant to the Port Authority of New York and New Jersey instructing police recruits in the area of search and seizure.