Have you ever had the Clerk of the Court reject a brief that you’ve labored over for months just because you signed in black ink instead of blue? Refuse to accept your brilliantly insightful case-of-first-impression masterpiece because you wrote “Printing Specifications Statement” instead of “Certificate of Compliance”? Send back your papers until you file a motion for permission to file a motion for permission to file a motion for permission to file a motion for permission to file a motion?
True, we never thought of threatening to behead the Honorable Chief Clerk. That would be wrong. But we had to snicker when an irate pro se plaintiff, after being repeatedly fined for frivolous litigation, phoned her and threatened to “chop off her head for not doing her job.” “I hope someone kicks the shit out of you and I wish cancer on your family,” he added.
The Clerk had the man arrested, put through the system and charged with aggravated harassment, a jailable crime defined as making threats over the phone with “no purpose of legitimate communication.” With words that “by their utterance alone, inflict injury or tend naturally to evoke immediate violence.”
The case went to a judge who had one eye on the real world where, let’s face it, most people are aggravating; and the other eye on the First Amendment, protector of aggravating speakers. She sensibly threw out the case. As “rude and inappropriate” as it was to “wish misfortune” on the Clerk, as she delicately put it, the phone call was clearly for the legitimate purpose of complaining about a public official’s not doing her job.
The judge cited another case where a woman, fed up with getting the runaround about her parking tickets, called up the village Parking Violations Bureau. On getting an answering machine, she left a message telling the parking officials that she’d “have their job” and “You should all die of cancer and your children too.” The Court of Appeals properly concluded that complaining about government action on an answering machine set up to receive complaints is a legitimate purpose of communication, even if “crude and offensive.”
In deciding whether an utterance alone inflicts injury, contemporary mainstream society tends to agree that you can’t cause injury by wishing. So it’s not a true threat to hope your enemy will get cancer. As another NYC court held, “a threat to place a curse, hex, jinx, voodoo, root, evil eye, enchantment or other such spiritual, mystical or magical attack on another neither inflicts actual injury nor naturally invokes immediate violence.” In other words, putting a curse on somebody is constitutionally protected speech. See People v. Rigoletto.
Even less was the threat to chop off the Chief Clerk’s head a true threat, considering that ISIS has yet to invade Brooklyn.
In sum, the right to yell at bureaucrats is the bulwark of a free society. The Penal Law isn’t a book of etiquette.