Officer’s Flyers Mocking His Sergeant Were Protected Speech, Court Says

ELIZABETH, NJ – An state appeals court has thrown out the conviction of a Union County corrections officer who was found guilty of harassment for making copies of his sergeant’s wedding photographs and adding vulgar comments for others to see.

William Burkert, a former corrections officer who is now retired, used the pictures to make a comment that was protect by the First Amendment right to free speech, and the images were not harassment, a three-judge Appellate Court panel ruled last week.

After a three-day trial in Elizabeth Municipal Court, Burkert was found guilty of two counts of harassment for making two copies of the sergeant’s wedding pictures and altering them to include handwritten comments in speech bubbles, according to the court decision.

It was the sergeant’s lawyer who acted as prosecutor during the municipal court trial, the decision states.

The sergeant, who was not identified in the decision, discovered the first photograph hanging in the Union County jail parking garage on Jan. 8, 2011. He testified that he was angered and humiliated by the flyer.

On Jan. 9 a co-worker gave the sergeant a second flyer, which included the wedding picture and other vulgar comments on it, that was found in the locker room vestibule. The sergeant recognized the handwriting as Burkert’s, court papers say. Days later a lieutenant found copies of the photos strewn on the locker room floor.

The sergeant said he became distraught, feared for his safety, left work and filed for workman’s compensation, citing a work-related psychiatric injury, the decision states. He later retired.

Authorities conducted an internal investigation, during which Burkert, when told he had to give a statement or could lose his job, admitted making copies of the photographs and hanging them in the office of the officers’ union, but said he did not make the flyers found in the garage or the locker room.

His statement was used as evidence at the trial. He was found guilty and assessed a fine. Burkert appealed the verdict and a Superior Court judge upheld the conviction. He appealed that decision, and the Appellate Court on Friday overturned the conviction.

“We reversed the defendant’s conviction because the evidence failed to prove he engaged in harassing conduct directed to the sergeant as required by (state law),” judges Marie Lihotz, William Nugent and Carol Higbee said in their ruling.

They said the defendant’s “uncouth annotations” on the wedding photographs were constitutionally protected expression, even though it bothered or embarrassed the sergeant.

Holding this as criminal harassment, the judges ruled, “would curb speech ranging from a person submitting a Facebook post excoriating an ex-lover for cheating, to the creation of offensive political flyers criticizing a city council member.”

Burkert’s lawyer, Steven Kaflowitz, said in a statement that the ruling brings the New Jersey statute in line with federal court decisions about protected expression.

“No longer can disgruntled fellow employees, unhappy neighbors, or angry spouses or lovers use the criminal laws to get back at someone who offended, embarrassed or annoyed them by addressing them with profane, indecent or insulting language,” Kaflowitz said.

The Union County Prosecutor’s Office, which filed a brief defending the conviction, declined to comment on the decision to overturn it.


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