June 13, 2013 — The New York Civil Liberties Union and the law firm of Bergstein & Ullrich, LLP today filed a federal lawsuit on behalf of a driver who got a speeding ticket in the Catskills town of Liberty and ended up arrested and prosecuted under New York’s aggravated harassment statute for exercising his right to free speech and expressing his dissatisfaction with the ticket. The driver was prosecuted after writing expletives on the ticket payment form and crossing out the town’s name of “Liberty” and replacing it with “Tyranny.”
Connecticut resident Willian Barboza, 22, was pulled over for speeding in the Sullivan County Town of Liberty in May 2012. He pleaded guilty by mail, and when he paid his fine expressed his frustration by scratching out “Liberty” and replacing it with “Tyranny” and writing “fuck your shitty town bitches” on the payment form. His payment was rejected, and he was instead ordered to travel the two hours from his home to make a court appearance. At that October 2012 court hearing, a judge berated Barboza about his language, and he was handcuffed and arrested for violating the state “aggravated harassment” statute. He was booked, fingerprinted, handcuffed to a bench and forced to pay $200 bail.
“No one should get arrested for speech,” Barboza said. “All I did was express my frustration with a ticket and I almost ended up in jail. I want to make sure nobody else ends up in a similar situation because of this law.”
New York’s aggravated harassment statute under which Barboza was charged says, “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, 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.”
Police officers continue to enforce the statute despite rulings that questioned its constitutionality. In 2003, the NYCLU won a federal court ruling declaring the statute unconstitutional as applied to speech that was merely annoying or alarming and warning that “state and local police officers and prosecutors would be well-advised . . . to cease arrests and prosecutions under this section.” (That ruling prompted the NYPD to stop arresting people for annoying or alarming speech.) The New York Court of Appeals, the state’s highest court, in 2003 said the statute cannot be applied to speech just because it is “crude and offensive.” In 1997, a federal court judge found the law to be “utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness.”
“New York’s aggravated harassment statute must be struck from the books, once and for all,” said NYCLU Staff Attorney Mariko Hirose. “No one else should have to suffer the way Mr. Barboza did.”
A municipal judge on March 22, 2013 finally dismissed the charge against Barboza, stating that while his words were “crude, vulgar, inappropriate and clearly intended to annoy,” that the First Amendment protects Barboza’s speech.
“No citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected,” stated Town of Fallsburg Justice Ivan Kalter.
“Not liking someone’s speech isn’t a reason to arrest them,” said attorney Stephen Bergstein of Bergstein & Ullrich, LLP, lead counsel on the case. “You cannot be arrested and prosecuted for writing a note of displeasure on a traffic ticket. As long as you are not threatening anyone, public officials have to put up with offensive language.”
Also serving as counsel on the case are NYCLU attorneys Daniel Mullkoff, Corey Stoughton and Christopher Dunn.