Does Criminalization of Speech Violate the First Amendment ?
In People v. Todaro, 26 N.Y.2d 325, 310 N.Y.S.2d 303, 258 N.E.2d 711 (1970), the court held that the defendant's "single, equivocal statement" was not sufficient to establish beyond a reasonable doubt that the defendant intended to harass or alarm.
The court added that something more must be shown that a defendant, who angered or annoyed, expressed his anger or annoyance inappropriately, particularly in the absence of proof of any further words or acts tending to confirm the criminal nature of the act charged. Id.
Similarly, in People v. Dietze, 75 N.Y.2d 47, 550 N.Y.S.2d 595, 549 N.E.2d 1166 (1989), the Court of Appeals reversed the defendant's conviction because there had been no proof on the record showing that the defendant's threat was "either serious, should reasonably have been taken to be serious, or was confirmed by other words or actions showing that it was anything more than a crude outburst" Id., at 53-54.
In other cases where only single incidents were alleged, courts have held that the expression of personal opinion, albeit annoying and/or obscene speech, does not raise the character of an incident to the level of harassment. People v. Hogan, 172 Misc.2d 279, 664 N.Y.S.2d 204 (Crim. Ct. 1997); People v. Zullo, 170 Misc.2d 200, 650 N.Y.S.2d 926 (1st Dist. Ct. 1996).
In such cases, the courts concluded that the conduct complained of amounted to no more than emotional outbursts, and that while it may have been abusive and cruel, it was not criminal. Id.
Furthermore, the registering of displeasure with another person has been held to be legitimate, protected speech.
Thus, criminalization of speech, no matter how fowl or profane would violate the First Amendment. Dietze, supra; People v. Zullo, supra.