Should a Speech Be Penalized Only If the Recipient Is In Immediate Danger of Severe Harm ?
In People v. Dietze (75 NY2d 47 ), under a prior harassment statute, Penal Law 240.25, the Court of Appeals reviewed a defendant's conviction on the following facts: knowing that the complainant was retarded, and having been previously warned by a police officer not to argue with the complainant, defendant nevertheless confronted her on the street, calling her a "bitch," and her son a "dog."
As the defendant further screamed that she would "beat the crap out of complainant some day or night on the street" (at 50), complainant ran away in tears.
The Court of Appeals concluded (at 54), "While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not."
A majority declared the statute unconstitutional on its face and stated that speech may be forbidden or penalized only if it reasonably places the recipient in fear of immediate danger of severe harm.
A concurring opinion by Chief Judge Wachtler concluded that the statute should not have been invalidated, but agreed that the communication under review did not rise to that level.
However, as noted by Donnino, Practice Commentary (McKinney's Cons Laws of NY, Book 39, Penal Law 240.30, at 391), "The former harassment statute did not include in the alternative an intent to threaten."