Conviction Over Wedding Photo Edits Reversed

     TRENTON, N.J. (CN) – In bad taste? Yes.
     Deserving of employer discipline? Probably.
     Against the law? The New Jersey Appellate Division said no today in reversing the harassment conviction against a former corrections officer who made profane flyers out of a rival’s wedding photo.
     Sgt. Gerald Hatton found the first flyer at his workplace parking garage in January 2011 and immediately recognized it as the handiwork of fellow Union County corrections officer William Burkert.
     A co-worker produced a second flyer the next day, unearthed from the “locker room vestibule area,” according to the ruling.
     Hatton and Burkert had shared an acrimonious working relationship as for the past 20 years, but the additions to Hatton’s wedding photo – speech bubbles with vulgar, handwritten comments – brought the pair to court.
     Though the county superior court convicted Burkert of harassment, a petty disorderly offence, the Appellate Division reversed today.
     Writing for a three-person panel, Judge Marie Lihotz said Burkert’s comments were “unprofessional, puerile, and inappropriate for the workplace … however, they do not amount to criminal harassment.”
     “Defendant’s uncouth annotations to the sergeant’s wedding photograph that was generally circulated amounts to a constitutionally protected expression, despite its boorish content,” Lihotz added.
     Otherwise, “criminal harassment 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,” the 16-page opinion continues.
     Lihotz drew upon a long history of court cases to defend the flyers’ First Amendment protections, including the now-infamous lawsuit by Rev. Jerry Falwell against Hustler Magazine over a cartoon depicting Falwell engaging in sex with his mother in an outhouse.
     Court documents say that the tension between Hatton and Burkert first erupted over their membership in different unions.
     Though Burkert initially denied creating the flyers, Hatton claimed to have recognized Burkert’s handwriting in the speech bubbles.
     Hatton left his job, filed for workers compensation, and sued, saying he feared for his safety because the flyers undermined his authority among the inmates. He said Burkert was also improperly disciplined as his five-day suspension was offset by sick days.
     An investigation by internal affairs ultimately led Burkert to admit having altering Hatton’s wedding photo after finding it on an NJ.com online forum and printing it.
     Burkert claimed he had made only one copy, however, and hung it in his union’s office.
     The officer’s appeal claimed that his admissions to internal affairs were coerced and inadmissible in court. Burkert also said the flyers were protected under the First Amendment. Amicus briefs by a UCLA law professor and the First Amendment Clinic agreed with Burkert.
     So, too, has the New Jersey Appellate Division, which found that the two flyers did not invade Hatton’s privacy rights – and therefore, did not constitute harassment.

%d bloggers like this: