By Gregory B. Hladky
11:45 AM EDT, June 26, 2013
It's one of those things you can't make up: "Liberty" is really the name of the little town in the Catskills where a young Connecticut dude got busted for exercising his constitutional rights to free speech.
His case has led to a federal court challenge of a New York state law on harassment and raises questions about a similar, potentially anti-free-speech statute here in Connecticut, according to the American Civil Liberties Union.
Of course, Willian Barboza of Bethel did push the envelope a bit that day in May 2012. He was rolling through the village of Liberty (about 60 miles west of Poughkeepsie) when he got nabbed for speeding. Barboza scratched out the name of Liberty on the traffic ticket, replaced it with "Tyranny," and scribbled the words "Fuck your shitty town bitches."
A local judge didn't take kindly to Barboza's message. Instead of allowing Barboza to pay the speeding fine by mail, Justice Brian P. Rourke ordered Barboza to drive back to Liberty for a court appearance, gave him a stern lecture, and had him arrested for "aggravated harassment."
To make it clear how folks in Liberty (or at least Rourke) felt about Barboza's free-speech exercise, the 22-year-old was handcuffed to a bench, and told to come up with $200 in bail before he was allowed to go.
The charge was made under a controversial New York law that has repeatedly been declared unconstitutional. That statute calls for the arrest of anyone who "communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm..."
Connecticut has its own version, which makes it a class C misdemeanor to use "indecent or obscene language… or with intent to harass, annoy or alarm another person, he communicates" by email or in virtually any other way. Theoretically, you could be arrested under this law for saying "fuck you" to almost anyone in any format.
That's basically what happened last year when Robert Schreiber, of West Hartford, sent a nasty email to state Rep. Andrew Fleischmann, a West Hartford Democrat.
Schreiber's message included the charming line, "you are a malloy lemming he says run into the ocean Andrew says how fast. How does dannells dick tast in your mouth."
Fleischmann happens to be Jewish and he didn't take it well that Schreiber also made some comments in German and used a Nazi salute in his email. So the State Capitol Police arrested Schreiber and charged him with second-degree harassment.
The charges in that case were later dropped. Fleischmann couldn't be reached for comment on this story.
The Connecticut harassment law was also used in the prosecution of Michael Adams, who made an angry comment on a TV station's Facebook page concerning a pending New York City trip by Gov. Dannel Malloy. "I hope while in NY an angry New Yorker puts a bullet in Malloy's head," was included in Adams' post.
Although Connecticut State Police admitted in their arrest warrant that Adams made the comment as a joke, they went ahead and charged him anyway with incitement to violence, breach of the peace and second-degree harassment. The Connecticut chapter of the American Civil Liberties Union got involved, and Adams eventually pleaded to a breach of peace in order to have the other charges dropped.
"We still believe Mr. Adams' speech was protected," says ACLU lawyer David McGuire. "It was clearly a joke… and he wasn't intending to do anything."
McGuire says it seems police and prosecutors are more likely to charge people in connection with stuff online than when objectionable comments are made in the old-fashioned way, on the street or face-to-face. He thinks that's because social media and the Internet "haven't been around as long… but they are just as protected."
Connecticut civil liberties activists haven't made a big deal about the potentially unconstitutional restrictions on free speech that seem to be inherent in this state's law because it isn't often being misused.
"I don't think it's being used by prosecutors all that often," McGuire says.
He says the courts have "carved out several very narrow exceptions" to the First Amendment's free speech protections. The old "shouting fire in a crowded theater" and inciting people to violence are the ones often cited. And McGuire says the ACLU likes to think "prosecutors and police understand these concepts."
"I've never seen it used in a case of simple profanity," McGuire says of the Connecticut harassment statute.
Daniel Mullkoff, a lawyer with the New York Civil Liberties Union, says that state's harassment statute has been used repeatedly but seldom for something like Barboza's profanity.
"The fact that this arrest and prosecution happened… is just ridiculous," Mullkoff says. "People have a right to express themselves as our client did."
According to Mullkoff, New York's harassment law "has been on the books for decades… Several state and federal courts have said it's unconstitutional, but it keeps getting enforced," he adds with frustration.
In fact, a municipal judge in Fallsburg, N.Y., (about 11 miles from Liberty) threw out the harassment charge against Barboza, according to the Capitol Confidential blog.
Fallsburg Justice Ivan Kalter noted that Barboza's ticket comments were "crude, vulgar, inappropriate and clearly intended to annoy." In his decision Kalter wrote: "No citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected."
Of course, if he'd wanted to, Kalter could have cited a 1997 federal court ruling that the New York harassment law was unconstitutional; or another 2003 federal judge's finding that police should quit arresting people just for saying annoying or offensive stuff; or a New York Court of Appeals decision saying the same.
So Mullkoff's NYCLU is taking up Barboza's cause, pursuing a federal lawsuit to have the harassment statute once again declared unconstitutional and to try and have it disposed of permanently. Mullkoff says Barboza is no longer commenting on the story because of the pending litigation.
So far, there's been no campaign in this state to have Connecticut's harassment law repealed, even though civil liberties activists like McGuire admit the statute has the potential for abuse. "It's clear the Connecticut law could be enforced in a way that would violate people's constitutional protections," McGuire says. "We think it's important for people in Connecticut to know they have the right to make statements that may be unpopular," he adds.
Like writing sweet little "fuck you" messages on speeding tickets, for example.
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