SW Legal Educational Publishing

New York Harassment Statute Unconstitutional as Applied to Actions of Skinhead
Description Skinhead placed racist stickers on private property and on the back of a person. He was prosecuted under a New York criminal statute for communication that is "likely to cause annoyance or alarm." The statute was stricken for vagueness and as in violation of the First Amendment.
Topic Constitutional Law
Key Words First Amendment, Vagueness
C A S E   S U M M A R Y
Facts Schlager, a skinhead, pasted stickers in a cafe, and on the back of a cafe parton, that were "intended to be racist, derogatory, and infalmmatory." The district attorney brought a criminal charge against Schlager for violating New York Penal Law § 240.30(1) which states: "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten, or alarm another person, he or she ... communicates ... with a person ... any form of written communication in a manner likely to cause annoyance or alarm." The penalty for this misdemeanor can be up to one year in jail. Schlager sued for declaratory and injunctive relief to prevent prosecution.
Decision Motion granted. The statute "is over broad as well as vague. It is unclear what type of communication would be considered to be initiated 'in a manner likely to cause annotance or alarm' to another person... The statute in this case is utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness." Schlager may have committed trespass and assault by his actions, but he cannot be prosecuted under this statute.
Citation Schlager v. Phillips, F.Supp.--- (1997 WL 815332, S.D., N.Y.)
985 F. Supp. 419 (S. D. N. Y., 1997)

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