NCJ Number
17704
Journal
Albany Law Review Volume: 38 Issue: 2 Dated: (1974) Pages: 301-316
Date Published
1974
Length
16 pages
Annotation
ANALYSIS OF THE CASE LAW INTERPRETING SECTION 240.25(2) OF THE NEW YORK STATE HARASSMENT STATUTE.
Abstract
THIS STATUTE STATES THAT A PERSON IS GUILTY OF HARASSMENT WHEN, WITH INTENT TO HARASS, ANNOY, OR ALARM ANOTHER PERSON, IN A PUBLIC PLACE, HE USES ABUSIVE OR OBSCENE LANGUAGE, OR MAKES AN OBSCENE GESTURE. DECISIONS OF THE UNITED STATES SUPREME COURT AND THE NEW YORK STATE COURT OF APPEALS ARE CITED IN A DISCUSSION OF THE CONSTITUTIONALITY OF STATUTORY LIMITS ON THE RIGHT OF FREE SPEECH. HIGHLIGHTED IS THE 1972 U.S. SUPREME COURT RULING IN CHAPLINSKY V. NEW HAMPSHIRE THAT THERE ARE CERTAIN WELL-DEFINED AND NARROWLY LIMITED CLASSES OF SPEECH WHICH CAN BE PROSCRIBED BY A STATE. THE 'FIGHTING WORDS' STANDARD SET UP BY THIS RULING IS DEFINED AS 'THOSE WHICH BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE AN IMMEDIATE BREACH OF THE PEACE.' ALSO CITED IS NEW YORK CASE LAW RELATING TO THE OTHER ELEMENTS REQUIRED FOR CONVICTION UNDER SECTION 240.25(2). SPECIFIC ISSUES CONSIDERED INCLUDE THE MEANING OF THE PHRASE 'ABUSIVE AND OBSCENE LANGUAGE,' WHETHER ACTUAL ANNOYANCE, IN ADDITION TO AN INTENT TO ANNOY, MUST TAKE PLACE, WHETHER A GREATER DEGREE OF ABUSIVENESS SHOULD BE REQUIRED FOR POLICEMEN, AND THE STATUTORY DEFINITION OF 'INTENT.' IT IS RECOMMENDED THAT SECTION 240.25(2) BE CONSTRUED TO PROSCRIBE ONLY 'FIGHTING WORDS,' THUS CHANGING ITS PURPOSE FROM THE PROTECTION OF THE INDIVIDUAL TO THE PREVENTION OF A BREACH OF PEACE BY VIOLENT RETALIATION. IN THE CASE OF POLICE OFFICERS, IT IS SUGGESTED THAT, IN ADDITION TO THE 'FIGHTING WORDS' REQUIREMENT, THE POLICE OFFICER BE ACTUALLY ANNOYED AS A REQUIREMENT FOR ARREST UNDER THE STATUTE.