There has been another instance of a person using a intercom to make a racially charged statement. This time it was at Whole Foods. I have frankly been trying to get my hands around what crime was committed the 1st time it happened at Walmart.
To refresh my readers on the facts, in March a teen boy was able to access the intercom in a New Jersey Walmart and put out the following announcement:
“Attention Wal-Mart customers: All black people leave the store now.”
An investigation was conducted by law enforcement, The teen has been charged with bias intimidation and harassment.
By charging this teen with those two crimes, we are attempting to punish speech, not conduct. This is something the 1st Amendment frowns on unless very narrow exceptions criteria are met. It must fit into a specific class of speech that takes it out of the realm of 1st Amendment protection. We do not punish people for simply using racially charged hate speech with nothing more. Some examples of speech that does not have protection are speech that incites others to imminent violence and fighting words.
Bias intimidation is an enhancement crime. A person can not be guilty of bias intimidation without being guilty of an underlying crime which is in this case harassment.
The issue becomes whether in engaging in the offensive speech in asking blacks to leave the Walmart does the harassment charge comport with the 1st Amendment. The New Jersey Harassment statute reads as follows:
Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
I have 3 issues with the statute. The 1st is the use of the phrase “communication or communications. It is sweeping in all types of speech including political speech and other speech which would enjoy 1st Amendment protection. The 2nd is the phrase “extremely inconvenient hour” One person’s inconvenience is anther’s normal work day. If I make an anonymous 7am call to my state representative who voted for Health Care reform and drop a couple f-bombs have I violated the harassment statute? A lot of people are probably guilty of harassment in this country right now.
The 3rd thing that bothers me is the phrase “likely to cause annoyance or alarm” What does that mean? It is vague. Moreover, it seems there would be existing laws that could have just as easily been used to prosecute this boy such as trespassing or possibly criminal mischief.
As despicable and offensive as the teens speech was, I believe the New Jersey Harassment harassment statute is void on its face as being unconstitutionally vague and unconstitutional in its use to punish the speech of the teen.
